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June 2014 Archives

Are expert witnesses really necessary?


You bet they are. Jurors love expert testimony and expert witnesses. As a Jacksonville criminal defense lawyer, I always try and put an expert witness on the stand. Why? Because the prosecutor will almost always try and put expert testimony before a jury; it often fills the cracks in an otherwise weak or questionable case. Expert testimony helps to secure convictions. The only problem is, sometimes the science behind the expert testimony turns out to be unreliable or false.

Can I get pulled over for drunk driving based on an anonymous tip?


Yes, you can get pulled over for drunk driving based on an anonymous tip. In Navarette v. California, the Supreme Court held that police officers may stop a driver to check whether he is drunk based solely on an anonymous call to a 911 dispatcher. I have seen it happen as a Jacksonville criminal defense attorney. One August afternoon in 2008, a 911 dispatcher in Humboldt County, California, got a call from a driver reporting that a specific silver Ford pickup truck, license number supplied, had driven her off the Pacific Coast Highway. Highway patrol officers found and trailed the pickup, which seemed to be driving normally. Nonetheless, they pulled the pickup over, supposedly to see whether the driver was drunk. He was not, but he was transporting 30 pounds of marijuana, which the officers later claimed was in plain smell.

Can I be charged with murder if I sold someone heroin and they overdosed?


No, you cannot be charged with murder for the heroin overdose. The actor Philip Seymour Hoffman died of a heroin, cocaine and prescription drug overdose in his New York City apartment on February 2, 2014. This tragic event led to a public outcry that those who sold him these drugs should be prosecuted for murder. And, of course, several people who were known to have sold Hoffman heroin were arrested. Holding a drug supplier criminally responsible for the death of a drug user is though to be supported by many State's felony murder laws. What is felony murder? As a Jacksonville criminal defense attorney, I represent people charged with felony murder.

Can the police search my home if I say no but my co-tenant says yes?


No, the police cannot search your home (without a search warrant) if you do not consent, even if your co-tenant (say, your wife or girlfriend) gives their consent, provided that you stay physically put on the premises. But the answer is yes, the police can search your home without a warrant if you leave the premises (even if the police arrest you! ) after having objected to the police searching your home if your co-tenant consents, and is the only one left at your home. This is a strange and difficult concept. As a Jacksonville criminal lawyer, I litigate search issues constantly. The following two Supreme Court cases will illustrate the point of how difficult the law is to understand in this area. Scott Randolph was arrested for drug possession after the police found cocaine in his home. The police did not have a search warrant to search Randolph's home, but Randolph's wife consented to the search. Randolph was also present at the time of the search and objected to the police's request. The police searched anyway and recovered cocaine. At his trial, Randolph's lawyer argued that the search was unconstitutional because Randolph never gave the police consent to search. The prosecutor argued that the wife's consent was sufficient. The trial court ruled for the prosecution and Randolph was convicted. Randolph appealed his conviction and the Supreme Court sided with Randolph, holding that when two co-occupants are present and one consents to a search while the other refuses, the search is unconstitutional and a violation of the Fourth Amendment. The case was Georgia v. Randolph.

Will a Judge punish me for exercising my right to go to trial?


Yes, they will, although judges rarely admit it. As a Jacksonville criminal attorney,I have seen this happen with regularity. One of the toughest decisions a client faces is whether to take a case to trial or accept the government's plea offer. Most criminal cases end with an agreed upon disposition, otherwise known as a plea bargain. In federal court, more than 90 percent of criminal cases are disposed of with a plea. Plea bargaining has become such an intregal part of the criminal justice system that the courts, judges, prosecutors and defense lawyers expect this as a probable outcome. And when it doesn't happen, some judges feel that their time is being unnecessarily taken up or wasted if they have to preside over a trial (even though this is what they are paid to do).

Can I justify shooting someone by standing my ground if I was in fear?


Probably, yes. In the nine years since it was passed, Florida's "stand your ground' law is being invoked with unexpected frequency, in ways no one at first imagined. Those who invoke "stand your ground" to avoid prosecution have been very successful. Nearly 70 percent have gone free, as was demonstrated by an analysis of nearly 200 "stand your ground" cases by the Tampa Bay Times in 2012. As a Jacksonville criminal defense lawyer, I have successfully represented individuals charged with murder by using the stand your ground defense.

Can the police question a child at school without a parent?


Probably, yes, the police can question a child at school without a parent present. In J.D.B. v. North Carolina, a 13 year old, seventh grade student was accused of breaking into two homes. A few days after the break-ins, a school resource officer took the student from his classroom to a conference room in the school where two police officers and two school administrators questioned him for 30 minutes. The student, incredibly, was not given his Miranda warnings, nor was he given the opportunity to call his grandmother, who was his legal guardian, nor was he told he was free to leave the room if he wished. Eventually, he confessed to the crimes he was accused of, in part because he was scared after being threatened with juvenile detention. He was told to write out a statement, which he did. He was then permitted to leave and catch his bus home. Sometime thereafter, he was charged with breaking and entering and larceny. As a Jacksonville criminal defense attorney, I represent juveniles charged with crimes.

Is it legal for the police to search my cell phone?


Not without a search warrant, it isn't legal for the police to search your phone. As a Jacksonville criminal lawyer, I fight illegal searches by the police. The Supreme Court of the State of Florida recently ruled that the police cannot access the personal data on your cell phone without a search warrant. In Smallwood v. Florida, the police recovered Cedric Smallwood's cell phone when they arrested him for the robbery of a convenience store in Jacksonville. The phone was in Smallwood's pocket when he was arrested. The police searched the photographs on Smallwood's phone (without his consent) and found several incriminating photos (one of them showed the gun he used in the robbery next to a stack of fanned out money four days after the robbery - not too smart on Mr. Smallwood's part). This and other photographs were introduced against Mr. Smallwood at the time of his trial. He was convicted by a jury and sentenced to 50 years in prison - ouch!

Can the police to pull me over and search my car for no reason?


No, they cannot search your car for no reason. It is against the law for the police to use a 'pretext' (a made up reason) to pull you over and then use that pretext (whether it be a broken taillight, a cracked windshield, a failure to signal a lane change or speeding) to search your car for contraband like drugs and guns. But of course, this happens every day on our Florida highways. As a Jacksonville criminal attorney, I have seen cops come up with some very original reasons for why they pulled over certain motorists. The cops know that drugs and guns are routinely transported on the Florida interstates. But that doesn't mean they're allowed to pull you over based on a hunch. They have to have a reason - probable cause of criminal activity - to initiate a full blown search. I recently represented a young man who was pulled over near the Georgia border in Nassau County because he had several chains hanging from his rearview mirror, supposedly "obstructing his view' out the front windshield. He was even given a traffic ticket for this by the Nassau County Sheriff's Office. That was the 'pretext' the cop was going to use to conduct a search of my client's car. The real reason he was pulled over was that he was a young black man with long Rasta dreads driving a white Cadillac Escalade...in other words, Driving While Black. But the police aren't allowed to profile this way, so instead, they came up with the nonsense reason that my client's view out his front windshield was obstructed. They did this to justify the stop of my client's car in the first place.

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