The Crime of Eye Contact

Courts have long held that when an individual flees from police presence in a “high crime area,” the police are justified in briefly detaining that individual to check for weapons or contraband.  According to the First District Court of Appeals, one Santa Rosa County judge stretched this doctrine a little too far.

In Hill v. State, Case No.: 1D10-2100 (decided January 24, 2011), Mr. Hill was parked at a closed gas station in an area that had recently suffered a string of burglaries.  A police officer drove by and, upon making eye contact with the officer, Hill got in his car and drove away.  The officer made a u-turn and followed Hill for over a mile; he did not see Hill commit any traffic infractions.  The officer then pulled Hill over anyway, called a canine unit, and searched Hill’s car.  Marijuana and a firearm were found inside.

When Hill moved to suppress the marijuana and firearm because they were obtained through an unreasonable search, the trial court relied on the vague “totality of the circumstances” to uphold the police action and denied Hill’s motion because he appeared to be fleeing from the police in a high crime area.  The First DCA reversed on the following grounds:

“[R]easonable suspicion of criminal activity is not established simply because a defendant leaves the scene when an officer nears.”  The Court further noted that Hill did not drive away in a reckless manner or commit any traffic infractions.  While the “flight in a high crime area” doctrine has been used to justify many warrantless searches, the First DCA has finally put a limit on this broad exception to the warrant requirement.

If law enforcement has violated your constitutional rights, don’t face it alone.  You may be entitled to have key pieces of evidence suppressed, either by a trial court or on appeal.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

~Robert Shafer

Police-created Crimes

A man goes to cash a large check he received from his recently deceased father’s estate. When he arrives at the bank, the cashier thinks the check is suspicious because it is so large and calls the police. The police arrive and take the check from him and tell him they will return when they have verified it. The man attempts to grab the check from the officer and is charged with resisting with violence and battery on a law enforcement officer. The officer later asks a judge to sentence him to ten years in prison.

Two undercover officers approach an addict and tell her they will give her some crack if she goes an buys a large quantity of crack for them. Despite her misgivings, she agrees. She returns with the drugs and is arrested for a second degree felony, punishable by up to fifteen years.

An older man is walking through a park. Another man approaches him and propositions him for oral sex. The older man reluctantly agrees, only to be immediately arrested for solicitation of a lewd act.

A young man who has never been arrested before receives a call from a friend of a friend who is asking for a large amount of ecstasy. The young man has a job and is going to school and has never sold drugs before. He politely declines, only to be called again a few days later by the same “friend” for the same purpose. He refuses. Over the next two weeks, he is bombarded by text messages and voicemails claiming that the “friend” knows he sells “X” and that he is holding out on him. Finally, the young man gives in and makes some calls. When the young man goes to pick up the money from the “friend,” the “friend” shoots him in the neck and paralyzes him from the neck down. Permanently. Later, the “friend” would reveal that he was actually and undercover narcotics officer and claim that the young man pulled a gun on him. The young man’s family is confused, as no one in the family has ever owned a gun.

All of these are criminal defense cases I have encountered over the years. And all of them have one thing in common: they would not have happened but for the police.

Police exist to prevent crime, pursue criminals, and protect civilians. Police should not, under any circumstances, create crimes. It’s immoral. It’s unethical. I would even say that it is evil.

In my years as a criminal defense attorney, I have seen hundreds, if not thousands of police-created crimes. In fact, police created crimes are the majority of drug cases I defend. You may be asking “Is there no recourse?” “Isn’t this entrapment?” “Shouldn’t police be arrested for the crimes they commit too?”

My friend, I have been asking these same questions for decades. Unfortunately, the United States Supreme Court has spoken on the issue of entrapment. The Court places the burden on the entrapped to prove their innocence, and if there is any indication that the crime would have happened regardless of the police’s involvement, the defense fails. This means that the government can dig up prior convictions and establish that the person has a “tendency” to engage in criminal behavior, and therefore would have committed this crime anyways.

Regardless of the many moral qualms surrounding police-created crime, it remains a staple in many law enforcement agencies. It is glamorized in movies and TV shows as righteous undercover work, with nary a mention of its often unsuspecting victims. It needs to stop.

If you are facing prosecution for a police-created crime, visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

Regards,

Robert Shafer

You a Cop? Undercover Law Enforcement

There is something fundamentally wrong with law enforcement convincing someone to commit a crime and then arresting them for committing it. Many years ago, it was called entrapment and was a legal ground to get criminal charges dismissed. Today, it is a point of honor that proved too burdensome for police and has been unceremoniously tossed aside.

Police posing as criminals to catch other criminals is nothing new – they have been doing it for decades. Constitutionally speaking, this is a very dangerous practice and should only be done in situations where law enforcement has no other viable option to prevent violent crime. Instead, it is often used to catch low level drug dealers and prostitutes.

The public has an inherent trust of law enforcement. Barring some mishap with the criminal justice system, most people want to trust their local police. Yet the common practice of entrapment is employed all over Duval, Nassau and Clay counties. Moreover, the Florida Supreme Court has limited defense attorneys’ use of entrapment as a grounds fo dismissal to extreme situations that do little good for most defendants. Despite the fact that most people who are arrested in this fashion would have never engaged in such conduct had it not been for the police, they are still left with no recourse in the courts.

I have been handling these types of cases for decades, and I know when the law allows you to raise entrapment as a defense. If you are facing criminal prosecution as a result of police misconduct, don’t face it alone. Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

Preferential Treatment of Law Enforcement in the Criminal Justice System

Today a Jacksonville Sheriff’s Officer who killed a civilian in the line of duty pled no contest to that crime. He did so as part of a plea bargain with the State Attorney’s Office. Officer Marcus Kilpatrick was chasing a person he allegedly suspected of having dark window tint at a high rate of speed without his lights or sirens on when he struck and killed an 86-year-old man. He initially lied and said that his lights and sirens were activated, even though civilian witnesses later proved that he didn’t.

Was he charged with vehicular homicide?

Was he charged with obstructing justice or making a false police report?

Was he sentenced to jail?

Was he required to pay restitution?

The answer to all of these questions is NO. He was charged with misdemeanor culpable negligence, and placed on probation. He was allowed to plea no contest, meaning that he neither disputed nor admitted the allegations. He was ordered to perform 100 hours of community service. And that’s it.

The outcome to this case saddened many, but surprised few. Many long-time residents of Jacksonville have noticed a very disturbing trend: Those who work for the Jacksonville Sheriff’s Office are no longer held accountable for their actions. Police shootings over the past few years have risen dramatically, with constant news coverage and nationwide attention. Does anyone ever recall a time when an officer was found to be at fault in any of these shootings? I don’t. The Jacksonville Sheriff claims to be policing his own with boards made up of other officers, but if there is any sort of disciplinary action, it rarely makes it to the public.

Some believe that law enforcement officers should be held to the same standard as every one else. I disagree. They should be held to a higher standard. I believe that because they wield so much power, they should bear the additional risk of harsher penalties should they abuse that power in any way. Regardless of how you feel about Officer Kilpatrick’s case, one cannot claim that he did not, at the very least, act irresponsibly. Were you or I to act in such a manner, I guarantee you we would be facing years in prison and a felony conviction. He does not. Why?

If you need representation on a criminal matter, visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

Regards,

Robert Shafer

Flores-Figeroa v. United States

Immigrants who have come to the United States illegally face a unique dilemma. To remain in this country and afford basic necessities, you must work. To work, you must have a social security number. To have a social security number, you must be a legal immigrant to this country. Often times, immigrants seeking to work make the risky choice of obtaining identification through unofficial means. When people get fraudulent identification documents from illegal sources, they face the potential charge of identity theft, a felony in Florida and the federal justice system.

However, identity theft is a very specific charge. In order to commit this crime on must knowingly obtain the identity of another person and use it without their permission. What happens when you use a social security number that does not belong to anyone at all? Do you commit this crime? Has anyone’s identity been stolen?

This is the question the United States Supreme Court recently faced in the case of Flores-Figeroa v. United States. Ths Supreme Court delivered a crippling blow to the onslaught of prosecution against hard-working, non-criminal immigrants in this country. Prior to this decision, the government sought years of prison time for immigrants whose only crime was making up a social security number and putting it on a job application so that they could earn an honest living. These people would be charged, prosecuted, and sentenced to years in prison for identity theft, even though no actual identity was stolen.

Under Flores-Figeroa, the government has the burden of establishing that the identifying information used belonged to an actual person. This ruling changed the face of the prosecution of immigrants, and continues to effect clients I currently represent. If you are under investigation or charged with a crime like this, don’t settle for a sentence that could lead to your deportation. You have rights that may have been effected by this ruling, and I would be happy to speak with you about them.

Regards,

Robert Shafer, Esq.