Car Stereo Statute Ruled Unconstitutional

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 http://www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

~Robert Shafer

Prescription for Trafficking?

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 http://www.shafercriminallaw.com or call me at (904)350-9333 for a free consultation.

~Robert Shafer

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 http://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

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

Minimum Mandatories

In response to rising violent crimes involving guns and large amounts of weapons, the Florida legislature enacted a series of statutes that require mandatory prison terms without the possibility of gain time. These types of sentences are commonly known as mandatory minimums. Mandatory minimums are very tough sentences, and I believe they are unconstitutional.

In school, we are taught that our government runs on a principal of checks and balances, meaning that separate branches of the government decide different aspects of the law, thus limiting the power that any one branch holds. The Executive, Judicial, and Legislative branches all work separately to decide everything from criminal justice to taxes. But what happens when one branch oversteps their bounds and limits another branch’s ability to do its job?

Minimum mandatories are a prime example of this. Judicial discretion is the cornerstone of our criminal justice system. Judges are elected by the people to make wise, informed decisions. Under the Florida Constitution, judges have sweeping authority to decide the appropriate sentence in criminal cases. This is one way that the Judicial Branch of government checks the Executive Branch, by ensuring that, no matter what charges are filed, a fair and justice sentence is determined.

The Florida Legislature has apparently decided that the judges of Florida are not wise enough to exercise this discretion. By enacting minimum mandatories, the Legislature has usurped a portion of the Judiciary’s authority. The job of the Legislature is to determine what acts are illegal. The job of the Judiciary is to determine what the punishment for those acts are. It’s that simple.

Minimum mandatories have been created for many crimes, including crimes involving drugs and firearms. If you are facing such a penalty, call me at (904)350-9333 or visit my website for a free consultation. With so much at stake, you need an experienced criminal defense attorney at your side.

Forfeitures

I’ve heard the story more times than I can count: I was pulled over for something trivial. Next thing I knew police were searching my vehicle and asking my why I had so much money in my purse, or so much cash in my pants pocket, or in my deposit bag. They took my money and told me it was being seized – what do I do now?

It sounds like something from a television show about corrupt police, but the simple fact is that Florida law allows law enforcement officers to seize money if they believe that it has been or is about to be used in a crime. Sounds strange, doesn’t it? The police can actually take your money if they think you are about to commit a crime that hasn’t even happened yet.

You are not without recourse. The law also provides tools for you to fight a forfeiture of your money or possessions. When an officer takes your property, they must justify that action before a judge within a certain time frame. If the judge finds the taking was unjustified, you get your property back. If the judge does find that it was justified, you still have the right to have the matter decided by a jury of your peers.

There are a multitude of ways to attack the legality of a forfeiture. I have spent many years focusing on this area of the law, and have handled countless cases where a judge or jury found the actions of law enforcement to be unwarranted. Many people feel powerless when law enforcement infringes on their rights. Even though you may have been mistreated, you don’t have to lose what is rightfully yours.

If you are the victim of a civil forfeiture, please call us at (904)350-9333 or visit our website at www.shafercriminallaw.com Use our expertise to fight for your rights.

Regards,

Robert Shafer, Esq.

Florida’s New Seatbelt Law

Governor Crist recently signed into effect Florida’s new seatbelt law. This law allows a law enforcement officer to pull you over if he sees that you are in a vehicle and are not wearing a seatbelt.  While it may seem like an innocuous statute aimed at driver safety, I see it as a new extension of police power that will broaden officer’s ability to begin criminal investigations.

The real purpose of this law is to give officers another reason to pull you over. Everyday, I see dozens of arrests that begin as simple stops for window tint violations and, typically due to prejudices and profiling, turn into criminal arrests. For example, if an officer sees a person who, in their opinion, looks like a drug dealer, the officer will typically follow that person and wait for an infraction, any infraction, to pull that person over. Over time, such laws as the window tint law and the “failure to maintain a single lane” statute have often been used as such pretexts. Now, legislators and the Governor have added a new tool to this arsenal. The seat belt law gives yet another pretext for stops based on unreasonable suspicions.

Prior to laws such as this, our legislature limited traffic stops to moving infractions that potentially effected other traffic or endangered persons or property. This is no longer the case. These days, you can be pulled over for having a decorative plate around your tag, a small crack in your windshield, and most recently, for not wearing your seatbelt. Even if you are a perfectly safe driver, you may still face the harassment and intrusion of police suspicion carried out through a pretext such as this.

Here at Robert Shafer & Associates, we focus our practice on criminal defense and drug cases. We know that this new law has nothing to with traffic safety, but rather is a springboard into more and more traffic stops to give officers an excuse to request a K9 unit or simply search your car, whether you consent to it or not. If you find yourself in the position of being pulled over based on such a pretext, you need to know one very valuable piece of legal information: you do not ever have to consent to a search of you vehicle. If you say “no” to a request to search your vehicle, an officer cannot arrest you based on that refusal alone. If you feel that your rights have been violated in this manner, you need an experienced legal professional to argue your case. Check us out at www.shafercriminallw.com or simply call us at (904)350-9333.

Regards,

Robert Shafer, Esq.