In our practice we hear from clients all the time that the police did not read them their rights, meaning Miranda rights, when they are arrested.  Contrary to every television show and most people’s belief – the police don’t have to read you your rights in all arrests.  The police only read you your rights when:

  1. You are in custody – that means physically not free to leave, handcuffed, in an interrogation room, in the back of a police cruiser, etc.

AND – AND – AND – AND (not to be confused with OR)

2.  They ask you questions.

Therefore, if you are merely being arrested and no one asks you anything – Miranda rights do not apply.  OR If you are not in custody and you volunteer information, or they ask you questions; Miranda rights do not apply.

 

So in sum – there must be two events present – CUSTODY and INTERROGATION.

 

So what happens if you remain silent through any police questioning whatever the circumstances – GOOD FOR YOU.  That’s what you should do.

miranda

 

If you are stopped by the police on the street, at your house, in your car – you must give the police your name and identification if you have it – BUT THAT’S IT.  You are not required to do anything else.

In a recent first degree murder case out of Palm Beach County, Florida; a woman was on trial for shooting her husband.  When the police arrived at the house, she was sitting in her son’s car and made no response to the officer’s questions of whether she needed anything or would like a bottle of water.  She was not yet under arrest (or in CUSTODY) nor were those questions likely to be confused with an interrogation.  During her trial, she choose not to testify – yet the prosecutor said on several occasions, including closing argument, that because she said nothing, this concluded she was guilty since an innocent person would have protested their innocence.  Ultimately she was convicted of murder and sentenced to life and currently resides in the Lowell Correctional Facility.

She appealed her conviction, arguing that the prosecutor could not comment on her PRE ARREST silence, since she never testified at trial.  If she had, and had said something contrary to her pre or even post arrest statements, this could be used against her to “impeach” her trial testimony.  But she didn’t testify and therefore any comment on her silence could not be used against her.  (Some courts including the US Supreme Court have distinguished this from POST arrest testimony and the prosecutors ability to comment which is a blog for another day – )

The Fourth DCA overturned her conviction and said that the prosecutors comments on Mrs. Horwitz’s silence were improper and have remanded the case for a new trial.  Note that just because there is error in a trial the appeallate courts do not have to grant a new trial – only when the error is “harmful” meaning that the error was so severe that it potentially caused the jurors to be swayed by the error.  In some cases, not this one, but some, the evidence is SO OVERWHELMING that regardless of the error, the courts do not grant a new trial.  But in Mrs. Horwitz’s case, she’s getting a new trial – if she’s convicted again of murder, she’ll probably get the same sentence – Life.  She has nothing to lose, so she might as well go for it again.  Good luck Mrs. Horwitz!

window tintLet’s say you just bought a used car.  You never had the windows tinted, the car came like that.  Or let’s say you recently had the windows tinted by a reputable tint dealer.  Then in the middle of the day, you’re driving and get pulled over for what you think is no reason.  Somehow – either you give consent, or the officer just does it, they search your car and find illegal things in it.

Can the police pull you over if they “think” your windows are too dark?  According to the 4th DCA and many other appellate courts – yes.   This blog discussed the recent 4th DCA case called State v. Cooley.  Cooley was pulled over at 11:52 AM because the officer couldn’t see through the driver’s side window and suspected the tint was illegally too dark.  Florida Traffic Court rules require a tint no less than 28%.  After the stop, the officer pulls out a tint meter and sure enough, it only registers 11%.

 

As we all know, police must have “probable cause” to make a traffic stop.  That means that you have violated some traffic law.  In the case of window tint, the officer doesn’t know for sure that you’ve violated the law – because he needs to use a tint meter to know for sure – but he or she can stop you if he has a reasonable suspicion that the window tint is too dark, and later, after you’re stopped, can check it with a tint meter.  To me this seems like an arbitrary and illegal decision based on a “hunch” of the officer.  But the courts have said it’s not.  Quoting specifically from a US Supreme Court case called Texas v. Brown from 1983:

“the probable cause standard does not demand any showing that such belief be correct or more likely true than false. A “practical, nontechnical” probability . . . is all that is required. . . . Finally, the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement.”

State v. Neumann, 567 So. 2d 950, 952 (Fla. 4th DCA 1990) (citations omitted) (quoting Texas v. Brown, 460 U.S. 730, 742 (1983)).

So I guess I’m the “scholar” analyzing a “liberty analysis”, and not “versed in the field of law enforcement.”   It would be interesting to see how courts define those who are “versed in the field of law enforcement.”  Does it require 6 months experience?  Eight years, like the officer in this case, or even less?

It appears that the fact the changed the appellate court’s decision was the actual use of a tint meter.  Once the officer “thought” the tint was too dark (below the threshold limit of 28% visibility) he then confirmed his “suspicion” with an actual machine to prove it.  In another similar case, there was no testimony of a tint meter to confirm the officer’s suspicion and in that case the suppression of evidence was upheld.

In my 15 year experience practicing law, I have rarely seen anyone in a normal vanilla family car be stopped for any suspicion of window tint.  I would argue that all stops for window tint by the police are pretexutal stops – meaning the officer is looking for any reason to pull the car over because the car, or the driver, or the neighborhood, looks “fishy”.  “Fishy” doesn’t equal probable cause, and if you’ve been stopped for a window tint violation – call us.  Consults are always free.

One of the most common juvenile crimes that I see are juvenile car burglaries.  These frequently happen in neighborhoods where kids may be walking around at night and trying to open up unlocked cars looking for loose change or cigarettes.  Kids call this crime CAR HOPPING. Usually these types of crimes are harmless and the kids who do this certainly don’t think it is a big deal. The cars are unlocked so there is no damage and they rarely take factory installed items like stereos or speakers.  But sometimes, the innocent search of change in an unlocked car might reveal a computer, Ipad, cell phone, GPS, or worse yet – a gun. This is when the owners of the property will report the theft, otherwise, they probably would not notice some missing change.  Although you and I might not think this is the crime of the year, car burglaries – legally called Burglary of an unoccupied conveyance – is a third degree felony – punishable by up to 5 years in PRISON if the child is charged as an adult.  Parents frequently say to me – “But he only took less than a dollar in change!”  I know, however it doesn’t matter the amount or what was taken, the point is that the child went into someone else’s property, without permission, and committed a theft.  (Burglary is legally defined as entering and committing any crime, not just theft)   And if the child enters the car, and someone is stupid enough to leave their personal gun in the car, and he takes that gun, the third degree felony becomes an armed burglary, which is punishable by LIFE.  car burglary

So unless something of value is taken from the car, many car burglaries go unreported.  And even when the car burglary is reported, it is often difficult for the police to catch anyone.  So how do the police catch the kids?  Fingerprints.  Usually, or I would hope, when a victim calls the police on a car burglary, someone should come take a report, and usually some forensic person will come take prints of the inside and outside of the car. (This is what usually happens in the cases I have handled, although I have talked to plenty of victims who say that neither a police officer or a forensic examiner ever came to the home to take a report) But if there are fingerprints that can be retrieved, and they don’t match the homeowner or any occupant sof the car, AND if the thief’s fingerprints are on file – then usually the police can make an arrest.

But here’s the interesting part – just because the police matched the fingerprints to someone, and that person did not have permission to be in the car, and there are things missing from the car – FINGERPRINTS alone are not enough to get a conviction on a burglary charge.  Why not?  Because unless there is some way to prove that those prints were put there at the time the theft occurred (or obviously unless there aren’t’ any witness, co-defendant snitching, or other evidence) there is REASONABLE DOUBT as to when those prints got on or in the car.

In a recent Second DCA case out of Tampa, FL, a juvenile was arrested and ultimately went to trial on a burglary in a car.  The only direct evidence the State presented at trial were the juvenile’s fingerprints found on a newspaper inside of the car.  There was no evidence of when or where or how that newspaper got into the car, and thus no way to prove that the prints on the newspaper were put there while the paper was in the car.  Obviously the prints could have been on the newspaper before it was in the car.  Maybe the kid was the newspaper delivery boy, or he otherwise touched the paper at another time.  So because there was no way of proving when the fingerprints were put on the newspaper, the appellate court said there was not enough evidence to convict the child of burglary.

I talk to many parents about crimes like these and one of the worst things you, as a parent, can do when your child is being, or about to be, questioned by the police, is agree to it, let the police into his or her room to search it, and tell your child to “just tell the truth”.  I am NOT advocating lying.  I am merely telling you, as a parent, that although you are 100% certain there is nothing illegal in the child’s room, or that he or she definitely wouldn’t commit a crime like this – on the rare chance that you are wrong, the consequences are irreversible .  Trust me.  So, even if you are right, and I hope that you are, don’t let the police into his bedroom to search.  There may be something else in there!  Call me.  I routinely answer questions for parents about their rights and the rights of their children  – for free.  And if you find yourself in a position where you didn’t follow the above advice, call me.

BluTagMost of us have known the frustration of trying to keep our cell phones charged. A recent smartphone commercial playfully mocks the “wall huggers” who are tethered to electrical outlets at airports and other public venues. For one Tampa Bay man, the device he failed to keep charged was much more important than a cell phone, and the stakes of a dead battery were much greater than losing email and Facebook, since his struggle to keep his court-ordered ankle monitoring bracelet charged nearly sent him to jail. The Second District Court of Appeal, however, determined that the man’s conduct did not amount to a willful violation of the terms of his probation and reversed a lower court ruling that would’ve sent him back to jail.

Daryl Comolli was convicted of a 2009 sex crime involving an underage girl. Comolli was eventually placed on probation, subject to his wearing a GPS device attached to his ankle. One of the terms of the man’s probation was that he remain only in approved locations and stay away from minors at all times.

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CuffsThose who study the social sciences may speak of the “Ostrich effect,” or information aversion, which is the technique of dealing with risky situations by pretending they don’t exist. The name comes from the old myth that ostriches defend themselves from danger by sticking their heads in the sand. Pretending a danger doesn’t exist is rarely an effective strategy, and this is especially true with your outstanding arrest warrant, as some recent arrests have illustrated.

An arrest warrant will not go away on its own. Depending on the crime with which the authorities have charged you, and the amount of resources available to pursue you, you may be able to escape arrest for a very long time. This past summer, Northwest Florida Daily News reported on a Freeport man arrested in Okaloosa County. He had an outstanding arrest warrant for writing bad checks a grocery store in neighboring Walton County… back in January 2008. NBC Connecticut reported that a Connecticut woman was met with an unpleasant surprise at the end of her Disney cruise last year. Brevard County officers took her into custody for an outstanding warrant, and the woman spent four days in jail. The warrant stemmed from the woman’s having shoplifted cigarettes from a Wal-Mart in 1991.

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Cell_Phone_TowerOn the heels of this summer’s landmark privacy ruling in Riley v. California, the Florida Supreme Court issued an important ruling last month that strikes a blow not just for the accused but for the privacy of all Floridians. The court’s decision threw out certain cell-phone evidence against an accused drug dealer because the law enforcement officers did not have a warrant when they seized the information. Many legal authorities have hailed the ruling as an important step in the right direction regarding digital privacy.

Shawn Alvin Tracey was suspected of trafficking drugs after a confidential informant stated that Tracey had obtained a large quantity of cocaine in Broward County that he intended to sell in southwest Florida. Officers secured an order that permitted them to obtain a record of Tracey’s incoming and outgoing calls from his cell service provider. Without obtaining an additional warrant, the officers used the real-time site location information, which was also disclosed by the cell service provider, to track Tracey. Using this information, officers were able to modify their target search location and eventually arrested Tracey in an SUV in Broward County.

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group_therapy_sessionAn accused sex offender’s failure to complete the terms of his plea deal landed him in jail for more than two years, and the trial court ruled that he willfully violated his probation. His argument that he did not fully understand the requirements of his plea deal did not win on appeal, since the 5th District Court of Appeal stated that he had only two options, which were to ask to withdraw the plea arrangement or to seek to have his sentence vacated, and since he did neither of these things, the probation violation ruling was proper. The outcome is a cautionary tale for anyone facing criminal charges to make certain that you fully understand all the terms of a plea bargain before agreeing to a deal.

Warren Staples was arrested and charged for a sex crime involving a minor. Staples and the state worked out a plea deal where he would agree to plead guilty and, in exchange, he would receive a sentence of five years of sex offender probation. Another element of the deal required the man to complete successfully a sex offender treatment program. Apparently fearful of the risks that a trial outcome might bring, Staples accepted the deal. In court, Staples was never forced to admit that he had actually committed the crime with which he was charged.

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Many Florida driver’s are unaware that by getting a Florida driver’s license, they are agreeing to consent to a breath test in a DUI investigation.  If you look at the very bottom of your driver’s license it says “Operation of a motor vehicle constitutes consent to any sobriety test required by law.”  In Florida driving is considered a “privilege” not a “right”.  What’s the difference you might ask?  All Americans have certain “rights”, the right to vote, the right to freedom of speech, the right to be free from unreasonable search and seizures.  It’s the search and seizure right that calls the consent to sobriety tests into question.

If you refuse the breath test on the second DUI arrest the refusal itself becomes a 1st degree misdemeanor, punishable by up to a year in jail.  Some lawyers have unsuccessfully argued that the refusal to take the breath, blood, or urine tests is merely a withdrawal of your consent to search.  And since you have a “right” not to be unreasonably searched, and can withdraw your consent at any time, you should therefore not be punished for refusing to take any sobriety test.

DUI refusal

The courts, all the way up to the U.S. Supreme Court agree that law enforcement must have probable cause to search a person or his property.  The same courts also agree that bodily searches, like blood, breath, urine, DNA, body cavity searches, are a “search” within the meaning of the Fourth Amendment. However, despite this  rule of law, and because the search of blood, breath and urine cannot be forced upon a person, some courts have said that law enforcement needs a warrant to make these kind of searches.  But as with all things legal, there are exceptions to the warrant requirement.

One of those is exigent circumstances.  Exigent circumstances mean that the evidence may be destroyed before the law enforcement officer can come back with a warrant, as warrants must be written and signed by a judge.  For example, in drug cases, if they arrest a known drug dealer at his home and there are other people left in the home when the dealer is taken to jail, that may be considered an exigent circumstance allowing law enforcement to search the house because chances are, by the time they got back with a warrant, the house would be cleaned of any contraband by those left in the house.

In a DUI case, the results of any sobriety test would be compromised if the arresting officer had to go get a warrant.  As we all know, alcohol metabolizes in your blood, and the longer you wait, the less alcohol will be in your system.  Therefore, waiting to get a warrant would jeopardize a DUI investigation and most likely destroy the evidence.  (Note in Arizona, the law provides for forced blood draws, however the warrant process is so streamlined, law enforcement can get the warrant almost immediately)

The most used exception to the warrant requirement, however, is CONSENT.  If a person is arrested and they give consent to search their home or car then there is no need for law enforcement to get a warrant.  If a person is stopped for a traffic violation and the officer asks for consent to search their person, car, or other belongings, the officer doesn’t even need a lawful arrest to conduct the search.  Consent validates any search, even one without probable cause.  And you, by accepting the privilege of driving in Florida, have consented to the search of your breath, blood, or urine.  Just so you are reminded of that, if you arrested for DUI, there is “script” that law enforcement must read to you advising you of the consequences of not taking the test, if you refuse the test when they initially ask.  (Blood tests may be taken in the case of accidents, urine tests when the results of the breath test are inconclusive because there was an intoxicant other than alcohol involved)

In a DUI case, breath tests, blood tests or urine tests are considered a search.  Thus, it would appear that law enforcement needs either a lawful arrest or a warrant to take those tests, OR they need an exception to the warrant requirement.  They have that by virtue of the consent you gave when you got a driver’s license.

Here’s the interesting part of consent – a person who has given consent can withdraw that consent at any time.  And since you have a RIGHT against unreasonable search and seizure, it would appear that you can withdraw your consent to take any sobriety test.  Right?  In Volusia county, that is the argument being made by the defense attorneys.  So far, the county courts have disagreed.  However, they did submit this questions to the Fifth District Court of Appeal for an answer: “DOES SECTION 316.1939, FLORIDA STATUTES (2013), THE UNLAWFUL REFUSAL STATUTE, VIOLATE THE FOURTH AMENDMENT?”  I guess we’ll have to wait and see.

Breathalyzer_studyA driver’s defense against the admission at trial of a hospital’s blood alcohol content measurement after he refused a law enforcement request to submit to a test was “unusual” but also ultimately unpersuasive. Both the trial court and the 2d District Court of Appeal rebuffed the driver’s double jeopardy claim, ruling that the license suspension punishment arising from the refusal stemmed from separate conduct than the criminal act of driving under the influence.

When Charlotte County law enforcement officers arrived at the scene of an auto accident late at night on September 5, 2009, they found that one of the drivers involved, Arthur Laws, appeared to be under the influence. Officers requested that he take a blood alcohol level test, but he refused. However, since he had been injured in the accident, emergency responders transported the man to a hospital in Fort Myers, where the staff took a blood test that assessed the man’s blood alcohol content at .208. The state eventually accessed the man’s medical records, prompting his lawyers to ask the court to suppress that BAC information in his DUI trial.

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Jail_CellA victim’s agreement to accept a payment of restitution from his attacker was not, by itself, enough to justify giving the attacker only probation and restitution when the crime would normally result in several years of imprisonment, according to a recent 2d District Court of Appeal ruling. These sentences of no jail time are sometimes permissible under the law, but success often means having a detailed knowledge of the law, since the accused must first get into the record enough proper evidence to support the argument that the victim’s need for the restitution money outweighs the need to punish the attacker through imprisonment.

The recent ruling involved the criminal prosecution of Clay Montgomery. Montgomery’s lawyers and prosecutors were in plea negotiations on an aggravated battery charge. After negotiations with the state broke down, the man’s attorneys contacted the victim and the victim’s civil lawyers. Those parties agreed that the accused man would pay $50,000 to the victim as restitution for his injuries. In exchange, the accused man received a release from the victim covering any further civil or criminal actions.

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