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The Florida Supreme Court recently invalidated a state statute for being unconstitutional, and as a result may have set a basis to attack the stop and search of a vehicle in a criminal case.

In Catalano v. State (Case No.: 2D10-973, decided May 11, 2011), the Second District Court of Appeals stepped up to the plate and declared a long-standing basis for traffic stops unconstitutional.  In Catalano, the defendant was cited for the noncriminal infraction of playing his stereo too loudly, such that it could be heard from 25 feet away – a violation of section 316.3045 of the Florida statutes.  He asked the misdemeanor court to dismiss his citation because it was based on an unconstitutional law, but the judge refused.  Catalano appealed the judge’s decision to the felony court, who also refused to invalidate the statute.  Catalano then took the matter up with the Second District Court of Appeals, who looked at the statute and determined it to be a restriction on free speech.

Once a court finds that a statute is a restriction of free speech, the State can still justify the restriction by claiming that it is necessary to achieve an important societal goal, called a “compelling state interest.”  Compelling state interests have been found to be interests such as winning a war, upholding national security, and protecting witnesses and jurors from retribution.  The Court found that such a statute does not adequately address any compelling state interest, and that it allowed for arbitrary enforcement and contained vague terms.

This statute is used as a basis to begin many criminal investigations.  I represent many people who are pulled over for this infraction only to have their car searched a few minutes later.  Any drugs found in the vehicle typically lead to criminal charges for all of the occupants.  This ruling provides a basis to challenge criminal cases where people are arrested after a stop based on a loud stereo system.

The fight isn’t over.  The Second DCA noted that they are in conflict with other appellate courts regarding this issue and certified the question to the Supreme Court, where the ultimate outcome of this battle will be determined.  In the mean time, if you are being charged with a crime, don’t face it alone.  Visit my website at or call me at (904)350-9333 for a free consultation.

~Robert Shafer

The U.S. Supreme Court’s recent opinion in Kentucky v. King (Case No. 09-1272, 2011) is an unnecessary expansion of a long-standing doctrine.  In King, the Court held that the exigent circumstances exception to the Fourth Amendment applies to any situation in which the police are attempting to gain entry to a home, as long they do not create the exigency and have reason to believe that evidence may be destroyed if they wait to obtain a warrant.

In layman’s terms: If police have reason to believe evidence is being destroyed within a home, they do not have to get a warrant, as long as they did not do anything to cause the evidence to be destroyed.  While this may seem like a fairly innocuous holding, it has profound implications for the Fourth Amendment and the ability of law enforcement officers to raid anyone’s home at will.

Your home is your castle.  Ever since our laws began their fitful development in Great Britain several centuries ago, the home has always held a special status.  It is provided with special protections that only an order signed by a neutral, detached magistrate can bypass.  However, in King, the Court held that the certain sounds emanating from a home allowed law enforcement to bypass the warrant requirement and forcibly enter a home, since law enforcement had good reason to believe evidence of criminal activity was actually being destroyed.

This ruling is difficult to accept for two reasons.  First, it turned out that the police were mistaken.  They approached that particular home because they were chasing a drug dealer and believed he had entered that home.  After entering the home they did not find the drug dealer, but found another person who was smoking marijuana.  Their decision to enter the home was based on a mistake of fact.

Second, is it reasonable to believe that a person who is being actively chased by law enforcement would go enter an apartment and being smoking marijuana?  I would think that when one is confronted by the presence of the police, the first reaction would not be to make sure that they know you are doing something illegal.  The court relied on the notion that the officers’ actions were reasonable because of their belief that evidence was being destroyed in response to the officers’ presence.  This makes no sense.

I have great concerns for the constant erosion of the Fourth Amendment in our nation’s highest Court.   If you are being charged with a crime, don’t face it alone.  Visit my website at or call me at (904)350-9333 for a free consultation.

~Robert Shafer

The Supreme Court recently held that K9 searches, otherwise known as “dog sniffs,” are a search just like any other, especially when conducted on a home.

In a rather controversial holding, the Florida Supreme Court recently resolved a among the lower courts regarding the use of drug detection dogs in homes.  In Jardines v. State, the Miami Police Department made a spectacle of the investigation into Mr. Jardines’ home.  Uniformed officers, patrol cars, K9 units surrounded the house and a K9 officer and his trained drug detection dog went onto Mr. Jardines’ front porch.  There, the dog alerted to the presence of narcotics in the home. Police entered the home and found marijuana within.

Dog sniffs of homes have generally been permitted in Florida for many years.  Ever since the United States Supreme Court holding in Kyllo v. United States, courts have only required a small amount of suspicion to justify such a search.  The Florida Supreme Court held in Jardines that much more than a mere suspicion is required to perform a dog sniff of one’s home.  They classified the sniff as a search under the Fourth Amendment, meaning that probable cause is required to justify such a government action.

The Florida Supreme Court’s decision is a bold one, and may face review by the U.S. Supreme Court itself.  Prosecutors are screaming their dissent, while law enforcement are scratching their heads to determine whether or not they even need dog sniffs if they already have probable cause to search – normally, the dog sniff is part of the probable cause determination.  The Court’s written opinion focused on the degree of “public opprobrium” that Jardines faced by the actions of law enforcement.  Specifically, they refused to find that the dog sniff was not an invasive procedure because to any outside observer, there was clearly a police investigation taking place at the home.  By drawing unnecessary public attention to their actions, the police increased the threshold of proof required to justify said actions.

Whether or not the decision in Jardines is final, one thing is for certain: the home remains a sanctuary under the Fourth Amendment.  If you are being charged with a crime, don’t face it alone.  Visit my website at or call me at (904)350-9333 for a free consultation.


Robert Shafer

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 or call me at (904)350-9333 for a free consultation.

The Second District Court of Appeals recently decided an issue that my firm has litigated before – the application of a 3-year minimum mandatory sentence to instances in which a convicted felon is in ready reach of a firearm but does not actually have one on his person.  In Gallentine v. State, Case No. 2D10-1869 (Decided March 4, 2011), the Second District Court of Appeals held that a court cannot impose a 3-year minimum mandatory sentence when a convicted felon does have the firearm on his person.

The 10-20-Life law was enacted in response to violent gun crimes all over Florida.  The most well-known provisions call for a 10-year minimum prison sentence if a firearm is used in the commission of a crime, 20 years if the firearm is fired, and life in prison if a discharged bullet strikes another person.  Among its lesser known provisions are the requirement that any convicted felon who is found with a firearm on his person be sentenced to a minimum of three years in prison.

Recently, prosecutors have taken this language and attempted to stretch it to include firearms within “ready reach” of a convicted felon.  Their reasoning, simply stated, is that the Legislature recently expanded the definition of “actual possession” in some cases to include not only items on your person, but also items within “ready reach.”  Prosecutors argued that this expansion applied to the 10-20-Life law as well, even though the 10-20-Life law itself was not specifically amended with this change.

Approximately two years ago, we faced this issue in the Fourth Circuit.  The State attempted to charge my client with the 3-year minimum mandatory for a small, one-shot pistol that was found beneath the seat of his work truck after he was already outside of the truck.  We moved to dismiss the minimum mandatory sentence, arguing that while this may constitute a case of constructive possession, it was not actual possession under the 10-20-Life law.  The Judge granted our motion and sentenced the Defendant, a working father and otherwise reformed citizen, to the time he had already served.  While the State initially appealed the Judge’s ruling, they later abandoned the appeal for reasons unknown.

Gun crimes come in all shapes and sizes, and unless you have an attorney on your side who knows the law and its many applications, you may wind up with an unfair or illegal sentence.  If you are being charged with a crime, don’t face it alone.  Visit my website at or call me at (904)350-9333 for a free consultation.

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 or call me at (904)350-9333 for a free consultation.

~Robert Shafer

The term “drug trafficking” is heavily used in today’s criminal justice system.  While the word “trafficking” means to “move from one place to another” or to “trade or deal in a certain type,” Florida Statutes have simply defined trafficking as possession of a large amount of certain controlled substances.  The implication being that, at certain amounts, the notion that one intended to use all of the substance for personal use is highly implausible.

Many Americans have prescriptions for medications.  Some of these medications are pain-management medications that are commonly bought and sold in the black market.  So what happens when a person has a prescription for trafficking amounts of a pain management medication?  According to the First District Court of Appeal, a jury is allowed to hear evidence of the so called “prescription defense” and decide the truth of that defense on their own.

In McCoy v. State (Case No. 1D09-5819, decided December 21, 2010), the defendants were on trial for possessing a trafficking amount of Lorcet.  The defendants asserted that they had prescriptions for this medication and that they were legally entitled to possess it for the purposes prescribed to them. The State presented contradictory evidence and the Judge refused to allow the jury to hear a crucial jury instruction: that if they had a valid prescription for the drugs, they cannot be convicted of trafficking.  The First DCA held that this was error.
Affirmative defenses are a fundamental principle in our courts.  The notion is that a person admits that they committed an act but claims they had a good reason to do so.  Self-defense is the most common: “yeah, I shot him, but he was breaking into my home and pointed a gun at me.”  The burden is always on the accused to prove their defense, as long as the State establishes that the act was committed in the first place.

The “prescription defense,” as the Court calls it, is similar.  Once the State established that the defendants possessed a trafficking amount of the pills, the burden was on the defendants to prove that they had a valid prescription at the time.  Once they presented this evidence, it was up to the jury to decide the validity of their claim.  In refusing to instruct the jury that they should acquit the defendants if they find evidence of their prescription to be credible, the Court committed reversible error.

Prescription drug crimes, prescription fraud, and trafficking statutes are rapidly evolving areas of the law.  If you are faced with drug trafficking, don’t face it alone.  There may be affirmative defenses to your case.  Visit my website at or call me at (904)350-9333 for a free consultation.

~Robert Shafer

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 or call me at (904)350-9333 for a free consultation.

~Robert Shafer

Everyday mental health is becoming an area of increased awareness in our society.  Florida’s criminal justice system has a procedure to deal with those suspected of being so mentally ill that they are incompetent to be prosecuted, but does this procedure, which has essentially remained unchanged for the past decade, adequately address the varying aspects of mental health deficiencies as we understand them today?

Under Rule 3.211, Florida Rules of Criminal Procedure, one can only be deemed “incompetent to proceed” if a Defendant displays certain characteristics that indicate that a defendant may not be mentally stable or is unable to understand either the nature of the charges against him or the basics of the adversarial legal process, then a defendant may enter a suggestion of incompetency and ask the court to appoint an expert to evaluate the defendant and ensure that he is not mentally defective.

“Incompetent to proceed” does not simply mean that a person is completely unable to function.  Rather, it means that an individual is not capable, by reason of a mental defect, to understand and appreciate the nature of the charges against him or her or cannot meaningfully participate in his or her own defense.  Rule 3.210 of the Florida Rules of Criminal Procedure outlines the process by which an attorney may ask the court to determine the competency of a defendant.

Needless to say, it’s quite a process.  Experts are brought in, judicial findings are made, and even though a person is deemed incompetent by a court does not necessarily mean that they will not face prosecution for a crime.  It’s a complicated procedure.  Don’t allow yourself or a loved one to face it alone.  Visit my website at or call me at (904)350-9333 for a free consultation.

~Robert Shafer

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 or call me at (904)350-9333 for a free consultation.

~Robert Shafer