West Palm Beach Criminal Lawyer Blog : Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

          On September 20, 2008, I posted an article on this site which contains a videotaped recording of a police officer repeatedly using a taser on a man who was sitting on the ground by the side of the road in Washington County, Florida.  Fortunately, that man lived.  Yesterday, however, a man was tasered by the police in Brooklyn, New York and then fell to his death.  The story--including a videotaped recording of the man being tasered and falling to his death--was reported in the New York Post as follows:

         "Police fired a Taser at a naked Brooklyn man armed with only a fluorescent light tube yesterday, sending him falling to his death from a second-floor ledge after he went on a 40-minute rant.

          Iman Morales' mom begged cops not to hurt her son, telling them he's sick - then watched in horror as he plunged from the top of the roll-down gate on which he'd been perched.

          An Emergency Services officer, acting on the orders of his boss, fired at the 35-year-old man at around 2 p.m., as he waved the 8-foot fluorescent light tube, police sources said.

          'His body froze up and he fell face-first,' said Sean Johnson, who witnessed the drama at 489 Tompkins Ave. in Bedford-Stuyvesant.

          Morales, who crashed 10 feet to the pavement, died a few hours later at Kings County Hospital.

           Asked if police followed the proper protocol for using a Taser, [New York City Police Department] spokesman Paul Browne said, 'That's being reviewed.'

          Amid his mostly unintelligible rant, Morales was heard yelling, 'You're going to kill me. I'm going to take everyone with me.'

          He also screamed, 'I'm going to die. You're all going to die with me.'

          Morales first emerged hanging out a third-floor window after a blowup with his mother at around 1 p.m., witnesses said.

          Twenty minutes later, he climbed the fire escape to the fourth floor, where he tried to force his way into a neighbor's apartment.

          'He tried to come into my window and I ran out,' said 40-year-old Tonya Wright.

          "He said, 'Let me in.' I told him, 'I'm not letting you in.' "

          Morales then headed to the second floor and screamed to the crowd, which included his frantic mom.

          "She was saying, 'No! No! Don't hurt him. He is sick,' " Wright said.

           With police shouting for him to get down, Morales made his way to a ledge above a the gate.

          'Walk down now! Move down!' the police can be heard shouting to him on video.

          He then picked up the light tube and waved it in the air before jabbing cops who had climbed out of the windows above.

          'When he was poking the cop, people were laughing,' Johnson said.

          He refused orders from the officers and continued his incoherent tirade.

          Finally, one of the [Emergency Services Unit] cops on the street shot him with the Taser.

          'He just fell face first,' said witness Sean Brown. 'People were screaming and yelling. It was wrong.'

          It was unclear what set off the episode, but, said Johnson, 'once he started hitting the cop with that pole, that's when it turned serious.'

          Morales had one prior arrest, for a Manhattan petit larceny.

          'This is very out of character,' said the building's superintendent, Charlene Gayle, 31.

          'Nice guy, clean cut, well kept, never irrational. Didn't have irrational behavior.' "

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          In a recent federal case called Buckley v. Haddock, the Eleventh Circuit Court of Appeals was asked to decide whether a deputy sheriff's repeated use of a taser gun while trying to arrest a motorist by the side of the road in Washington County, Florida constituted excessive use of force in violation of the Fourth Amendment to the United States Constitution.  In ruling that the deputy did not use excessive force, the Court stated:

          "Needless to say, officers acting alone may not always use any and all force necessary to complete an arrest without assistance.  If Deputy Rackard had used more severe techniques (beaten [the motorist's] head with a club or shot him, for example), this case would be a different case.  Here, the record shows that Deputy Rackard only used moderate, non-lethal force; and he did so only after reasoning with [the motorist], then after trying to lift [the motorist], and finally after repeatedly warning [the motorist]-a warning given before each use of the taser-that a taser would be used. In short, Deputy Rackard gave [the motorist] ample warning and opportunity to cease resisting before the deputy resorted gradually to more forceful measures. Even then, [the motorist's] injury was not great; and the deputy holstered his taser after using it briefly three times."

          However, one of the judges on the appellate court disagreed stating:

          "I write to express my view that the Fourth Amendment forbids an officer from discharging repeated bursts of electricity into an already handcuffed misdemeanant—who is sitting still
beside a rural road and unwilling to move—simply to goad him into standing up. I also conclude that at the time of the incident, Deputy Rackard was on fair notice that his conduct was unconstitutional. Not only did Deputy Rackard unnecessarily discharge his taser gun against Mr. Buckley three times, but each time he did so, he repeatedly prodded Mr. Buckley’s body with the stun gun’s live electrodes—inflicting additional pain and leaving Mr. Buckley with sixteen burn
scars."

          Did Deputy Rackard use excessive force when he repeatedly tasered the motorist?  Because the entire incident was captured on a police video camera, you can view the video for yourself and come to your own conclusion.

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          It is often the case that the evidence against persons charged with federal crimes is overwhelming while the sentences imposed are severe.  Because of that, many people who are charged with federal crimes are more interested in entering into a plea agreement with the prosecutor (who is called an Assistant United States Attorney) than they are in having a trial where their guilt or innocence is decided by a jury consisting of twelve members of the community.

          One frequently-employed way of getting a reduced sentence in a federal case is for the accused (who is referred to as the defendant) to provide substantial assistance to the prosecutor and to other law enforcement agents.  Such assistance often consists of providing information about co-defendants or about other crimes that the defendant has knowledge of.  Defendants (and their lawyers) tend to find such arrangements to be nerve-wracking because of the possibility that the information provided by the accused to law enforcement may later be used by the prosecutor to charge the defendant with additional crimes. 

          It is partly because of that concern that proffer agreements exist.  These written agreements typically provide that the statements made by a defendant during his meeting with law enforcement agents may not be used against him at his trial unless he says something to the jury that differs from what he told the agents.  It is common for such agreements to explicitly state that a defendant is being offered only limited use immunity for nonviolent crimes, not derivative use immunity or transactional immunity.

          Earlier this month, the Eleventh Circuit Court of Appeals decided the case of United States of America v. Schwartz which addresses the issue of proffer agreements.  This case is significant because it narrows the protection that proffer agreements were traditionally thought to have provided.  In the Schwartz case, the prosecutor sent a proffer letter to the lawyer for one of the defendants which gave the defendant limited use immunity in exchange for the information that he would provide to law enforcement agents.  After the defendant agreed to this arrangement, he spoke with agents on four different occasions.  One of those agents then went before a grand jury and testified as to what the defendant had stated at the four meetings.  The grand jury, in turn, returned a superseding indictment against that particular defendant.  Later, when the accused learned of what had occurred, he filed a motion asking the judge to dismiss his indictment because the prosecutor used what he believed were immunized statements to obtain the superseding indictment.

           On appeal, the Eleventh Circuit Court disagreed with the defendant in part because the proffer letter did not directly address whether the defendant's immunized statements could be presented to a grand jury.   In addition, the proffer letter stated that the accused waived his right to have a Kastigar hearing in the future.  A Kastigar hearing, which has its origin in the United States Supreme Court case of Kastigar v. United States, is a hearing to decide whether the prosecution presented immunized testimony to a grand jury in violation of a person's privilege against self-incrimination that is guaranteed to all of us by the Fifth Amendment to the U.S. Constitution.

           The upshot of the Schwartz case is that lawyers for clients who are charged with federal crimes must scrutinize the language contained in proffer agreements so that their clients do not unwittingly provide prosecutors with evidence that is later used against them in court.

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          During the 1990's, many people credited the revitalization of downtown West Palm Beach, Florida to then-Mayor Nancy Graham.  Graham's fortune has changed for the worse, however, as she is now facing criminal charges in San Diego, California.  The following story about Graham's current legal plight appears at voiceofsandiego.org:

          Friday, Sept. 12, 2008 | City Attorney Mike Aguirre's office has charged former Centre City Development Corp. President Nancy Graham with three misdemeanors, alleging that she improperly used her position and failed to disclose her potential conflicts-of-interest.

          The charges, filed Wednesday in San Diego Superior Court, say Graham participated in a decision in which she had a financial interest. Graham also faces two counts of violating local ethics rules. One count alleges that Graham influenced the negotiations of a downtown condominium and hotel project at CCDC, the city's downtown redevelopment agency, when she knew it could benefit a former business partner.

          The other count says Graham failed to accurately disclose her economic interests. Before moving to San Diego in 2005, Graham worked as a developer in Florida, where she had a business relationship with The Related Group, a large Florida development company. Together, they built a mixed-use condominium project, a partnership that Graham estimated had paid her almost $3 million as of last summer -- including a $125,000 payment that came in mid-2007. Graham did not subsequently report that income on the annual conflict-of-interest form that public officials are required to submit to the city.

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          If you think that the police cannot search your trash simply because you put it into your garbage can and place it in front of your home to be picked up by trash collectors, think again!  In the case of California v. Greenwood, the United States Supreme Court ruled that the police are allowed to search your trash without a warrant if you leave your garbage for collection outside the curtilage of your home.

          In the Greenwood case, the police twice obtained garbage bags left on the curb in front of Mr. Greenwood's home after receiving information that Greenwood might be involved in the trafficking of narcotics.  When the police found items indicating narcotics use inside the garbage bags, they obtained a warrant to search Greenwood's home where they found narcotics and then arrested Greenwood on felony narcotics charges.

          In deciding against Mr. Greenwood, the U.S. Supreme Court ruled that since Greenwood voluntarily left his trash in an area particularly suited for public inspection (that is, by the side of the road), his claimed expectation of privacy in the trash that he threw away was not objectively reasonable.  The High Court said that it is common knowledge that plastic garbage bags left on a public street are readily accessible to snoops, scavengers, children, and animals as well as any other member of the public.  Moreover, Greenwood placed his trash at the curb in front of his home for the express purpose of giving it to the trash collector who might himself have sorted through it or permitted others, such as the police, to do so.  According to the Supreme Court, the police cannot reasonably be expected to turn their eyes from evidence of criminal activity that can be observed by any other member of the public.

         However, in one case that involved the search of a Florida resident's trash, Raulerson v. State of Florida, the Fourth District Court of Appeal ruled that the evidence that the police presented to a judge did not provide that judge with the probable cause that the judge needed in order to issue a valid search warrant.

          In the Raulerson case, the police received an anonymous complaint that the people living at Ms. Raulerson's address were involved in illegal drug activity.  Based on this tip, the police went to Raulerson's home and took six bags of trash that were located by the curb in front of her home.  After searching through each of the bags, the police found such things as two cannabis cigarette butts as well as other pieces of suspected cannabis.  Based on this evidence, the police obtained a warrant to search Ms. Raulerson's home where they found contraband. 

           The Fourth District Court of Appeal ruled that although the information provided by the police to the judge was relevant insofar as the substance found by the police in their one-time search of Raulerson's trash tested positive for cannabis, it was still the case that the information provided by the police to the judge lacked other sufficient material facts indicating a fair probability that cannabis would be found in Raulerson's home. 

          For example, had the evidence provided by the police to the judge consisted of two separate searches of Raulerson's trash rather than just one, such evidence might have provided the judge with the probable cause needed to issue a valid search warrant.  Or, to take another example, had the evidence provided by the police consisted of the one search of Raulerson's trash along with other evidence such as seeing cars repeatedly drive up to Raulerson's home during all hours of the day and night and then leaving shortly thereafter, such evidence might also have provided the judge with the probable cause needed to issue a valid search warrant.

          Had the facts in Ms. Raulerson's case been just slightly different, her conviction would almost certainly have been affirmed on appeal rather than reversed.

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          I recently posted an article entitled "11 Frequently-Asked Questions About Sealing Your Record in Florida."  In that article, I noted that the Florida Department of Law Enforcement (FDLE) website contains several frequently-asked questions and answers about sealing criminal history records in Florida. This article discusses 11 more of those questions and answers.
 

          1.  If I have my civil rights restored, will my criminal history record disappear?

          No. In order to have your civil rights restored you had to have been convicted (that is, adjudicated guilty) of a felony that caused you to lose your civil rights in the first place.  Persons who have been convicted of a felony are not eligible to get their criminal history records sealed or expunged under Florida law regardless of whether their civil rights have been restored.

          2.  Do I have to apply for a certificate of eligibility to have my juvenile criminal history record sealed or expunged?

          The following considerations are relevant in deciding whether to apply to have a juvenile criminal history record sealed or expunged:  Prior to October 1, 1994 (for felonies) and July 1, 1996 (for specified misdemeanors), juvenile arrest records were not maintained by FDLE in the criminal-history record system and would not be available to the general public unless the juvenile were treated as an adult.  If certain qualifications are met, juvenile records are subject to an abbreviated retention schedule which results in the automatic expunction of the record after a specified period of time.  See Florida Statutes section 943.0515. Juvenile defendants who successfully complete a qualified diversion program, as set forth in Florida Statutes section 943.0582, may be eligible for expunction of their record. If a person wishes to pursue the judicial sealing or expunction of his or her juvenile record, the eligibility criteria and procedures, which are similar to those for adults, are found in Florida Statutes sections 943.059 and 943.0585.

          3.  If I have a criminal history record sealed or expunged in another state or jurisdiction, am I still eligible to have a criminal history record sealed or expunged in Florida?

          If the other record was sealed or expunged by operation of law (administratively or automatically, without intervention or action by the applicant), then the out-of-state sealing or expunction would not prevent you from being eligible to have a record in Florida sealed or expunged. However, if the record was sealed or expunged because you petitioned to have it done by a court order, or otherwise actively sought the sealing or expunction, then you would not be eligible to have another record sealed or expunged in Florida.

          4.  How long does it typically take to receive a response from my application for a certificate of eligibility?

          The current processing time is 30 working days or less from the date the application is received, processed, and mailed back to the applicant.*
 

          5.  If I had a criminal history record sealed or expunged and then had that same record vacated, can I now apply to have a different criminal history record sealed or expunged?
 

          No.  Florida Statutes sections 943.0585(2)(f) and 943.059(2)(e) state that an applicant cannot have obtained a prior sealing or expunction of a criminal history record.  The fact that that record was later vacated is immaterial insofar as obtaining a sealing or expunction is concerned.

          6.  Will FDLE notify the agencies involved with my case that my record has been sealed or expunged?

          FDLE will obey a certified court which states that a particular criminal history record is to be sealed or expunged.  Once FDLE seals or expunges the criminal history record, a notification letter will be sent by FDLE to the arresting agency (or agencies) involved with your case. The notification letter informs the agency that FDLE has received and complied with the order to seal or expunge the criminal record.

          7.  What type of background check is conducted by FDLE to determine my eligibility to have a criminal history record sealed or expunged?

          FDLE conducts criminal history record checks in Florida through the Florida Crime Information Center (FCIC), national record checks through the National Crime Information Center (NCIC), and driving history checks through the Florida Department of Highway Safety and Motor Vehicles (DHSMV).

          8.  Why is the database at the Florida Department of Highway Safety and Motor Vehicles (DHSMV) checked in order to determine my eligibility to have my criminal history record sealed or expunged?

          A criminal traffic offense such as DUI, reckless driving, or driving while license suspended/canceled/revoked may appear in the DHSMV database even though it may not appear in the criminal history record system maintained by FDLE. Although noncriminal traffic offenses (such as careless driving) do not affect one's eligibility to seal or expunge a criminal history record, an adjudication of guilt for any criminal offense, even a traffic offense, makes it impossible for an applicant to get her criminal history record sealed or expunged.

          9.  Who should receive a copy of the order to seal or expunge a criminal history record?

          By law, the Clerk of Court is responsible for certifying a copy of the court order to the State Attorney’s Office (or to the Statewide Prosecutor's Office) as well as to the arresting agency (or agencies). The arresting agency is then responsible for sending a certified copy of the court order to all agencies that are known to have received the criminal history information. In addition to FDLE, those agencies may include the Florida Department of Corrections, Teen Courts, and the Florida Department of Juvenile Justice.

          10.  What do I do once I receive a certificate of eligibility?

          Once FDLE has issued the certificate of eligibility to seal or expunge a criminal history record, you or your attorney must file a petition for relief along with the certificate of eligibility and a required affidavit in the court in the county where the arrest occurred. The issuance of the certificate of eligibility is not the final step in the sealing or expunging process nor does it guarantee that a criminal history record will be sealed or expunged. The final decision about whether or not to seal or expunge a criminal history record is placed lies with the judge who has jurisdiction over your case.

          11.  What information is required to complete the application for certification of eligibility?

          In order to obtain a certificate of eligibility so that you may, in turn, petition the court to seal or expunge your criminal history record, you or your attorney must do the following things pursuant to Florida statutes sections 943.0585(2) and 943.059(2):

          A. Section "A" of the application must be completed and signed in the presence of a notary public;

          B. The applicant must be fingerprinted by authorized law enforcement personnel or a criminal justice agency. The fingerprint card must include the applicant's name, race, sex, date of birth, social security number, and signature prior to submission to FDLE;

          C. The applicant must provide a certified disposition of the case that he is applying to have sealed or expunged.

          D. A nonrefundable money order or cashier's check in the amount of $75.00 made payable to the FDLE must accompany the application.

          E. If you are requesting an expunction of a criminal history record, the Office of the State Attorney or the Office of the Statewide Prosecutor with jurisdiction over your case must complete Section "B" of the application. If section "B" is not completed, FDLE will assume that you are attempting to get your criminal history record sealed rather than expunged.

          * It has been my experience that FDLE often takes up to a couple of months to respond to an application to seal or expunge a criminal history record.

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