The Fourth Amendment and Emails

A Federal Appeals Court recently extended Fourth Amendment protections to emails – yet another adaptation of the Fourth Amendment to our modern age.  In Warshak v. United States, Case No. 06-492 (6th Cir. 2008), the court stated “an Internet subscriber enjoys a reasonable expectation of privacy in the contents of emails that are stored with, or sent or received through, a commercial Internet Service Provider.”.  This ruling came after federal authorities seized emails from a company called Enzyte, who marketed “male enhancement” on national television for a time.

The government alleged that the company based its advertisements on fake studies and pocketed hundreds of millions of dollars.  A jury ultimately agreed, but emails that were seized from the company without a warrant were presented in the trial over the defendants’s objections.  The appellate court reversed the trial court’s ruling on the emails, holding that a commercial email provider is akin to the post office in that it handles electronic communication – sometimes very sensitive communication – with an expectation of privacy.

In the case at issue, the government seized over 27,000 emails from the Internet Service Provider.  It is worth noting that the court’s ruling does not preclude the government from obtaining a warrant to seize emails, just like any other evidence.  However, the extension of the warrant requirement to electronic communications is just another step in the evolution of the Fourth Amendment, one that will hopefully prevent unreasonable government intrusions to your privacy.

If you are being charged with a crime, don’t face it alone.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

Luggage, Airports, and the Fourth Amendment

The Fourth Amendment protects us from law enforcement rummaging through our homes, cars, and personal belongings.  However, rummaging through our luggage is practically expected at most airports these days.  Increased security hasn’t stopped one individual from bringing child pornography into an airport. In Higerd v. State (Case No.: 1D09-4028, decided December 21, 2010) the First District Court of Appeals held that if the Travel Safety Administration discovers contraband in your checked luggage, the illegal items are admissible in a criminal case against you.

It’s called an administrative search – and it’s not a new concept.  Many other agencies such as the Florida Fish & Wildlife Commission or the Department of Agriculture conduct administrative searches all the time.  However, the First District Court of Appeals calls this case an “issue of first impression” since no Florida court has ever decided that Fourth Amendment rights take a back seat in an airport.  The First DCA approaches this case with caution, but seems to deliver a fairly well-reasoned opinion.

The crux of the Court’s holding is that the TSA officer who searched Higer’s possessions did so in good faith – she was looking for explosives or weapons, not child pornography.  Because she did not have the intent to find other contraband that is outside the TSA’s procedures to look for, she did not violate the constitution.

Higer argued that the search itself was unnecessarily intrusive because the TSA has technology that can achieve the goal of scanning for explosives or weapons without actually opening a suitcase.  Therefore, because less intrusive means are available, the TSA violated his right to be free from unreasonable search and seizure.  The First DCA responded by deferring to the trial judge’s review of TSA procedures and simply finding the procedures reasonable.   The procedures only authorize searches done for the purpose of finding weapons or explosives.  If she was looking for explosives or weapons, then the search did not violate the Fourth Amendment.

While I don’t disagree with the Court classifying this search as “administrative,” I do harbor concerns about any principle that rests on a government agent’s “good faith.”  If there is one thing I have observed in my twenty-seven years of practice, it is that officers of the law are people… just like everyone else.  Sometimes they engage in courses of conduct with anything but “good faith” on their minds.  Sometimes they lie.  Under the First DCA’s holding, any TSA agent can justify any search of luggage as long as they claim to be looking for weapons or explosives regardless of whether or not they actually were.

If you are facing prosecution for a criminal act and feel that your rights have been violated, you need an experienced criminal defense attorney on your side.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

~Robert Shafer

Sex Offender/Predator Registration

“Being forced to register as a sex offender is not punishment.  It’s just a way of letting the public know about people convicted of certain crimes. Registration as a sex offender in no way effects a person’s rights.“

That’s the position that the Florida Legislature has taken regarding the harsh, draconian punishment of registration as a sexual offender or predator. It’s a ludicrous position, and I will tell you why.

Being forced to register as a sexual offender twice a year in a database that is searchable by the public is perhaps one of the most humiliating and destabilizing punishments that the judiciary can impose. If an offender fails to register or fails to update any of his contact information, he or she will be prosecuted for a second degree felony that requires mandatory prison time. Does this sound like a harmless sanction?

It is not my position that no one should be forced to register as a sexual offender or a sexual predator. There are many deeply disturbed individuals in our society whose presence should be known and accounted for. Those who target young children, those who have shown violent sexual tendencies, and those who suffer from mental disorders that lead them to target others should be watched very closely by the government. Registration is often an appropriate punishment for these individuals.  However, Florida Law does not consider individual cases: every single person who is convicted, pleads guilty, or pleads nolo contendere to a sex crime must register. .. for the rest of their life.

The first step in using this societal tool in a responsible and accurate manner is recognizing that it is a punishment. The second is recognizing that not everyone accused of a sexual crime should be punished as a chronic offender or predator. I have represented many eighteen year old males who had sex with their sixteen year old girlfriends and were prosecuted for it. These young men should not have to register. I have represented upstanding adults who have been accused of crimes and pled nolo contendere to sex charges because they feared a trial where it would simply be their word against that of a credible, albeit alleged, victim. I have represented people who, in a rare bout of extreme intoxication, went too far with a person they were already romantically involved with. Are these people predators? Do they deserve the lifelong stigma of being searched out on a public database? Do they deserve to be sent to prison for living too close to a school where their child may attend, or for neglecting to give the government their new address?

There is no easy answer to these questions, but I have handled cases where the deciding factor is an experienced attorney who can portray their client as a person, not a monster. If you are facing prosecution for a sex crime, don’t face it alone. Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

What to do when you’re served with an injunction

An injunction is Florida’s version of a restraining order. When someone asks a court to issue an injunction keeping you away from them, the Court will immediately grant a “temporary injunction” until there is a full hearing to determine if there should be a permanent one. Temporary injunctions are just as powerful as permanent injunctions, and violating the terms of that injunction can have serious consequences. If you are given an injunction ordering you to have no contact with someone, you may feel hurt, betrayed, angry, worried, or outraged. At this point, you have many legal options: you can consult an attorney to determine if you want to get your own injunction against that person, you can hire an attorney to represent you at the pending injunction hearing, or you can simply agree that a permanent injunction should go in place against you. The one option you absolutely do not have: contact the other person in an attempt to work it out. Emails, text messages, even comments and messages on networking sites like facebook and myspace can amount to a violation of an injunction. Over the past few years, I have seen the law adapt to our recent technological advances, and if you think that an injunction doesn’t forbid these types of contact, you’re wrong. I have seen people go to jail over simple friend requests. However, if you do find yourself in the position of having made some sort of contact despite an injunction, you need representation. There are criminal penalties associated with this type of action, including fines, probation, and even up to a year in jail. The penalties that enforce injunctions are tough, and judges typically do not look kindly upon those who, in their opinion, ignore a lawful order. The injunction process is technical and has very strict legal standards. Whether you’re seeking one against someone, trying to understand why one was issued against you, or simply trying to prevent one from being ordered, it never hurts to have an experienced attorney on your side. Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

Contempt

Judges have the unique power to put people in jail for misconduct in courtrooms. It’s called contempt, and without a lawyer you can find yourself facing a judge who is acting as prosecutor, jury, and executioner. As anyone who has been held in contempt can tell you, this is not a good position to be in.

A judge can hold a person in contempt for many things: speaking out of turn in the courtroom, being disrespectful when asked a question, and refusing to comply with a judge’s request. All of these things can lead to open contempt hearings – and all of these things can lead to you being jailed for months at a time.

In Florida, contempt is defined as any refusal to obey a legal order or any conduct which prevents the court from conducting its business. As straightforward as that may sound, it can often be interpreted as punishing outbursts in court after harsh sentences. Many times I have seen it used to punish belligerence from a defendant during a disputed case. In giving the judiciary this power, the legislature’s goal was to give judges absolute authority over their courtrooms. And it worked.

However, people unfamiliar with the criminal justice system, particularly in hotly contested proceedings, can find themselves running afoul of a judge’s idiosyncracies. This is why self-representation is so dangerous. While a person has a constitutional right to represent themselves in court, that same person also has a constitutional right to an attorney.

If you are facing a criminal case, your freedom is at stake – in more ways than you know. The government will have an attorney there, working for the State’s interests. You should have one too. If you need representation in any criminal matter, 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.

Driving Under the Influence

Happy hour. Two for one specials. Ladies’ night. Drink specials. Having a social life in a spread out city like Jacksonville, one can find ones self in the situation of drinking one too many and then trying to get home in a city with few cabs and no public transportation to speak of. Welcome to Jacksonville, and if you think the Jacksonville Sheriffs Office isn’t lying in wait for you to go 3 miles per hour over the speed limit or swerve slightly within your lane, think again.

In fact, the Jacksonville Sheriff’s Office has an entire task force of patrol officers who focus on Driving Under the Influence. They are responsible for the majority of DUI arrests in Duval County. The Clay and Nassau County Sheriff’s Offices have similar task forces. These officers are typically trained and determined to spot even the slightest hint of “impaired” driving, so that they can effectuate a traffic stop.

The uniformity of these cases is remarkable. Often times I meet with new clients who tell me the same story: “I was out having a good time, I had a few drinks and drove home. I thought I was ok to drive. I was pulled over for something trivial and the next thing I knew there were numerous cop cars all around and an officer was shining a light in my eyes, asking me if I would do field sobriety exercises and telling me that if I didn’t, he would have to ‘make his decision’ based on what he saw. Next thing I knew, I was in handcuffs and then, about two hours later, they decided to let me give a breath sample.”

This situation leads to many people who have never been in trouble being arrested for a criminal offense. I find it ironic that Law Enforcement only provides you with the opportunity to provide a breath sample after you have been arrested. If you blow below a .08, do they let you go? No. Law Enforcement will never reward you for blowing under the legal limit, but they will punish you for not providing a breath sample. Severely. Refusing to provide a breath sample automatically suspends your license for a year if it’s your first refusal, and if you refuse to provide a breath sample twice, you can be prosecuted for that refusal.

DUI investigations are very complicated, and officers can only begin a proper investigation if certain legal standards are met. Additionally, they can only request that you perform field sobriety exercises if they observe very specific indicators of impairment. Most importantly, every DUI arrest must be supported by probable cause. If an arrest is not supported by probable cause, a judge may exclude evidence gathered in your case, increasing your chances of an acquittal.

At Shafer & Associates, we have been handling DUIs and traffic offenses for over 20 years. I have seen the evolution of drunk driving law over this time, and I can tell you that where people used to only receive a fine and a night in jail, they are now faced with harsh mandatory minimum sentences that can consume years of your life and thousands of your dollars. Don’t face this situation alone: you need experienced legal counsel who can guide you through this process and raise any defenses you may have.

Come see us for a free consultation or visit our website at www.shafercriminallaw.com to learn more about our DUI defense practice.

Regards,

Robert Shafer