The Law of Possession

In a recent opinion vacating a Hillsborough County conviction for drug trafficking and possession of marijuana, the Second District Court of Appeals eloquently detailed the law of possession and found the State’s evidence lacking.  Bennett v. State, Case No. 2D09-940 (Decided November 5, 2010).

There are two types of possession in Florida: actual possession (it’s on your person) and constructive possession (it’s close enough to you that you can control it).  When the State attempts prosecute you for constructive possession of drugs, it must prove two things: awareness of the contraband and the ability to control it.  For years, the State has been able to prove this second element with circumstantial evidence, including the presence of personal items (like identification) near the contraband.  In Bennett v. State, the Second District held that the mere presence of an ID near drugs is insufficient to establish knowledge, dominion, and control.  While this is not a novel concept in Florida’s jurisprudence, the Court’s explanation of the law regarding possession boils down to a simple principle: to prove constructive possession, the State must show “a conscious and substantial possession by the accused, as distinguished from a mere involuntary or superficial possession.”

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

~Robert Shafer

Mere Acquiesence

Law enforcement officers often believe that they have the authority to frisk or pat down just about every civilian they encounter.  As the Fourth District Court of Appeals recently reminded the St. Lucie County’s Sheriff’s Department, they don’t.

Many people often simply just assume that when an officer indicates that he wants to search them, they have to simply allow it.  There is a great deal of confusion on this issue, mainly because of statutes that criminalize the act of “resisting an officer without violence.”  When it is common knowledge that you can be jailed for resisting law enforcement, it makes sense that people would be hesitant about telling an officer “no, you can’t search.”  After all, isn’t that the most simple way to resist?

Contrast this with the constitutionally guaranteed freedom from unreasonable searches and seizures and you get a great deal of public misconception.  People often tell me that they consented to a search of their home, car, or person because they did not believe that they had the right to refuse the request.  This is called “mere acquiescence” to authority and is insufficient to waive your right to live free of governmental intrusion.

Pat downs and frisks that are conducted to check for weapons often lead to the discovery of drugs.  In E.J. v. State, Case No. 4D-0-736, decided August 4, 2010, a juvenile was a passenger in a vehicle that was pulled over.  The driver was asked out of the vehicle and searched.  As an officer approached the juvenile, she immediately got out of the vehicle, put her hands on the hood, and spread her legs in anticipation of being searched just like the driver.  The officer frisked her and found marijuana.  She later challenged the search by claiming she never consented to the search, and by also claiming that she was not even aware that her consent was needed.  The trial court held that her actions gave the officers a reasonable belief that she was consenting to a search.

The Fourth District Court of Appeals reversed, noting that the test for whether or not consent existed is not what the officers believed, but rather whether or not consent was actually given.  In order for consent to be valid it must knowing, intelligent, and voluntary.  In E.J.’s case, there was no evidence to show that any of those requirements were met.

Law enforcement officers deal with potentially dangerous situations every day.  Ensuring people don’t have weapons that could be used to harm either the officers or other civilians is an age-old practice that many officers do automatically.  In this case, their behavior was neither extreme or unusual.  As the court noted in E.J. v. State, a generalized fear for officer safety is most understandable, but does not justify a frisk or search by itself.

If you are facing prosecution for an alleged criminal act, don’t face it alone.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

~Robert Shafer

The “Bad Neighborhood” Defense

When deciding whether or not self defense is a viable defense to murder, the Fourth District Court of Appeals recently held that testimony about the dangerous nature of a particular neighborhood is not relevant to a person’s state of mind at the time of the crime.  In other words, a defendant cannot claim that the dangerous nature of the area contributed to his decision to use force in defense of himself or another.

In Dowe v. State, Case No. 4D-08-616 (decided June 23, 2010), Dowe was prosecuted for second degree murder.  At trial, Dowe testified that he lived in a dangerous neighborhood and had been accused of being an informant for the police.  Dowe claimed that his accuser had earlier threatened him. Later, Dowe found his car tires slashed and the accuser standing in the road.  Dowe immediately armed himself with a gun and engaged in a physical fight with the accuser during which Dowe’s gun discharged and killed him.  Dowe claimed the discharge was accidental.  The jury disagreed.
During trial, Dowe claimed that because he lived in a very dangerous neighborhood and he had been previously threatened, he was entitled to an acquittal on the murder charge because he had a reasonable fear for his own safety.  When his attorney attempted to introduce testimony about the dangerousness of the area, the trial judge would not allow it.  The Fourth District Court of Appeals upheld this decision because evidence about the type of area in which the Defendant lived had nothing to do with the dangerousness of the actual victim of the crime.  In addition, the Court noted that testimony about the area could have prejudiced the State by implying that the victim was a bad or dangerous person when there was no other evidence to support that claim.

While I do not necessarily disagree with the Fourth District’s reasoning, this ruling does raise some serious concerns about a defendant’s ability to argue self defense at trial.  The tricky part about self defense is that it requires a rather subjective determination: a jury must find that a person reasonably believed that force was necessary to prevent great bodily harm to himself or another.  This determination requires the jury to first determine if the person was actually in fear, and, if they were, whether that fear was reasonable.

A defendant’s state of mind is the critical component to this defense, and the notion that being in a “rough” area has no effect on a person’s perceived fear of harm is contrary to common sense.  For example, a person walking down a dark alley at night in a high-crime area on their way home will naturally be a bit more nervous about their surroundings than one walking through a park in the middle of the day.  A person aware of the fact that they are in a dangerous area is much more likely to perceive a threat when a stranger approaches them or a shadowed figure jumps out at them.  Why shouldn’t awareness of dangerous surroundings be uniformly admissible when such a subjective determination is required?

I am not saying that Dowe was justified in his actions – the undisputed facts elicited at trial appeared to be that Dowe attacked and killed an unarmed man.  However, I am concerned that the Fourth District’s limitation on this kind of evidence will chip away at the cornerstone of self defense – the defendant’s mental state at the time of the crime.  Awareness of surroundings can be integral to such a determination.  Was Dowe actually in fear when he attacked the victim?  Was this fear reasonable?  Why not give the jury all of the information about the Defendant’s state of mind before that determination is made?

If you are facing prosecution for defending yourself or another, don’t face it alone.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

~Robert Shafer

Victory in DUI trial

Trials are a very important part of representation.  Whether you are facing a misdemeanor DUI or felony drug, weapon, or white collar charges, having the right trial lawyer by your side can be the difference between jail or freedom.

We recently went to trial in a case where our client was charged with Driving Under the Influence.  Without violating the attorney-client privilege, I will only say that at first glance, the charges against my client were serious and there was a lot of evidence against him.  We spent weeks in preparation and sifted through the testimony of every witness, expert, and officer.  The trial lasted nearly seven hours, and after two and a half hours of deliberation, the jury returned a verdict of not guilty on all counts.  My client was not even found guilty of speeding, the reason he was pulled over in the first place.

I say that to only say that when you are charged with a crime, the government will throw everything they have at you.  Even though Florida’s budget is stressed more now than at any point in history, our State Attorney continues to feel the need to exhaust Florida’s resources by taking as many cases to trial as possible. Being a former prosecutor, I know that each trial costs the taxpayers an exorbitant amount of money.  Paying for jurors to be brought in, expert witnesses for the State, courtroom personnel, after-hours staff, even keeping the lights and air conditioning on when jury deliberations go well into the night: all of these things cost you. Greatly.  At my firm, we often try to resolve cases without a trial, in the hope that we can convince a prosecutor to drop charges or a judge to throw out the case.  However, there are times that prosecutors feel the need to make a statement and try even the most frivolous of cases, despite strained budgets.

That’s fine for us, we’ll be ready.  If you are facing a trial in a criminal case, you need an experienced criminal trial attorney at your side.  At my firm, we only do criminal defense.  Visit my website at www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

Regards,

Robert Shafer

Hung Juries

Most people know that a jury trial typically results in one of two ways: guilty or not guilty. When the State assumes the burden of proving a case beyond a reasonable doubt, they must do so for every single person on a jury. When one person is unconvinced of the guilt of a defendant, the result is not an acquittal – it is known as a hung jury. What happens when the State has failed to meet their burden of proving a person’s guilt beyond a reasonable doubt? It’s called a mistrial. It means that the State gets another shot at prosecuting you. Why does the State get multiple opportunities to take you to trial? Why doesn’t this practice violate the Double Jeopardy rule? Does the State just get to keep bringing me back to trial again and again? These are questions that Criminal Defense Attorneys often struggle with. If your trial resulted in a mistrial, the State of Florida is permitted to try you again, even though you have already been brought to trial once. Florida law makes a clear distinction between a hung jury (a jury unable to reach a unanimous conclusion) and an acquittal (a jury has unanimously decided to find the defendant not guilty). The result of a hung jury is, in effect, as if the original trial never took place, and so another one must be conducted. The result of an acquittal is that you can never be tried again for that charge. Even though this is a common enough occurrence, it still causes Defendants to question the fairness of system that seems to give the State limitless chances to meet their burden. After the emotionally draining process of a full-blown jury trial, they find they must go through the entire process again, simply because the State failed to do their job the first time around. The most frightening part is that the State could potentially proceed to trial against a person countless times, and as long as there is one person on the jury who is not willing to find a defendant not guilty, the process will be repeated over and over again. If you are facing the prospect of criminal prosecution, don’t face it alone. You need experienced, qualified legal representation. Call my office at (904)350-9333 or visit our website at www.shafercriminallaw.com to set up a free consultation.

Regards,

Robert Shafer