West Palm Beach Criminal Lawyer Blog

Retroactive Federal Drug Sentence Reductions

Monday, July 21st, 2014  |   No Comments »

Last week, the United States Sentencing Commission voted to retroactively cut federal prison sentences for drug crimes.  The Commission voted to retroactively decrease the drug table by two offense levels for all drug types.  The result is that approximately 50,000 people who are currently incarcerated in the federal prison system for drug crimes could be eligible for a reduction of their sentence by an average of about 2 years.  Provided Congress takes no action to nullify the Commission’s vote, federal courts can begin granting motions for sentence reductions on November 1, 2014.  However, the Commission delayed the actual release date for inmates to November 1, 2015 in order to provide the courts with time to consider motions and to provide the Federal Bureau of Prisons and other agencies with time to prepare for the upcoming changes.

The Police Need a Search Warrant to Obtain Information About the Location of Your Cell Phone

Friday, July 11th, 2014  |   No Comments »

In the case of the United States versus Quartavious Davis, Mr. Davis was convicted of several armed robberies that occurred at different times and in several different locations.  In order to prove that Davis was in the general vicinity of the robberies when they occurred, the prosecutor presented “cell site location information” at Davis’ trial.  That information consisted of a record of the calls supposedly made by Davis as well as calls that he received.  It also consisted of information about which cell phone towers carried those calls to and from Davis.  Typically when you make a call using your cell phone, the cell tower that is closest to you will carry that call to whomever you are calling.  By knowing which cell towers were used to send Davis’ calls, the prosecutor was able to show approximately where Davis’ phone was located on certain dates and at certain times.  Coincidentally, the prosecutor argued, Davis’ phone was located in the same general vicinity as the robberies that occurred and at the same time that they occurred.  Therefore, the prosecutor argued, Davis was one of the robbers.

Davis objected to the cell cite location information being presented to the jury because the government agents who obtained that information did so without first getting a search warrant.  They instead obtained the information by getting a court order.

The court of appeals deciding Davis’ case agreed that the Fourth Amendment to the United States Constitution required that the agents get a warrant before they could obtain the cell cite location information.   Davis, the appellate court said, had a “reasonable expectation of privacy” in that information. The agents mere reliance upon a court order was not good enough.

The Police Need a Warrant to Search Your Cell Phone

Wednesday, July 2nd, 2014  |   No Comments »

In the case of Riley versus California, the United States Supreme Court ruled that the police generally may not, without a warrant, search the contents of a cell phone that is taken from someone who has been arrested.  The facts in the Riley case are as follows:

David Riley was stopped for a traffic violation which eventually led to his arrest on weapons charges.  While searching Riley, a police officer found a cell phone located in his pants pocket.  The officer looked at information contained on the phone and noticed the repeated use of a term associated with a street gang.  A few hours later, a detective at the police department who specialized in gangs further examined information contained on Riley’s phone.  Based in part on photographs and videos that the detective found, the prosecutor’s office charged Riley in connection with a shooting that had occurred a few weeks earlier and sought an enhanced sentence based upon his gang membership.  

Riley filed a motion in which he argued that it was illegal for the police to have searched the contents of his phone without first getting a search warrant.  The United States Supreme Court agreed with him.  The Court said that when the police arrest someone, they are allowed to search items found on his person without first getting a warrant if those items can harm an officer or be used to escape (for example, a gun) or if those items can be destroyed (for example, drugs).  However, in the case of cell phones, data stored on a phone cannot be used as a weapon to harm an officer or to help someone escape from the police.  Also, the Supreme Court rejected the argument that the police should not be required to get a search warrant because evidence on a cell phone can be destroyed by remote wiping and data encryption.  The Court said that neither of those things is all that prevalent in our society.

The Supreme Court was also concerned about the privacy interests that are at stake when cell phone data is involved.  Cell phones can store millions of pages of text, thousands of pictures, and hundreds of videos.  Thus, a cell phone can contain an electronic record of nearly every aspect of someone’s life.  And because of those privacy concerns, the police are required to get a search warrant before looking at the contents of someone’s cell phone whom they have recently arrested.

It was Illegal for the Police to Take Pills from a Woman’s Purse

Friday, June 20th, 2014  |   No Comments »

In the case of Melva Gay versus the State of Florida, a police officer stopped a car for failing to come to a complete stop at at stop sign.  Melva Gay was a passenger in that car.  The officer asked the driver to get out of the car and then asked him if he could search the car for illegal drugs.  The driver said he could.  The officer then asked Melva Gay to also get out of the car.  She did so but left her purse in the car.  While searching her purse, the officer found a small metal pill box containing some pills.  Because the officer did not know what the pills were, he took them to his patrol car where he learned, through the website Drugs.com, that the pills were ritalin and tramadol.  Ms. Gay was arrested and later charged with committing the crimes of possession of a controlled substance (ritalin), possession of drug paraphernalia (the metal pill container), and possession of a prescription drug without a prescription (tramadol).

Ms. Gay filed a motion with the court in which she argued that it was illegal for the officer to take the pills and pill container from her purse.  The court of appeals agreed with her that what the officer did was illegal because:

1.  Nothing about the pills or pill box gave the officer reason to believe that Ms. Gay had committed a crime.

2.  The officer did not know what the pills were before taking them to his patrol car and checking them out on Drugs.com.

3.  The officer did not testify that in his experience people sometimes carry illegally possessed prescription drugs in a pill box like the one Ms. Gay had in her purse.

4.  The mere observation of pills in a pill container is as consistent with noncriminal activity as with criminal activity.

Because the officer’s actions were illegal, the court of appeals reversed Ms. Gay’s conviction and sentence.

Robbery Versus Shoplifting

Saturday, June 14th, 2014  |   1 Comment »

In the case of the State of Florida versus Dennis Baker, some security guards at a department store located inside a shopping mall saw Mr. Baker take a videotape recorder and leave the store without first paying for it.  When Baker saw the guards coming towards him, he put the recorder down inside the mall and began running.  When the guards stopped him, Baker began struggling and shouting that they should leave him alone and that he had a gun.  Baker never attempted to grab the recorder from off the floor during the struggle.  He was eventually charged with committing the crime of robbery.

Baker asked the judge to dismiss his case because he originally took the recorder without using any force, and he put it on the ground before using force against the guards.  In order to be guilty of robbery, Baker argued, he would have to have been in possession of the recorder while running away from the guards or while struggling with them.  But because neither of those things occurred, he was not guilty of robbery.  The judge agreed with him and dismissed his case.

Posted in: Robbery

Juveniles and Sex Offender Registration

Saturday, June 7th, 2014  |   No Comments »

In the case of the State of Florida versus Melissa Hope Williams, Ms. Williams moved to Florida in 2005 from Michigan where she had been adjudicated delinquent for a misdemeanor sex offense and required to register as a sex offender.  She was 11 years old when she committed her crime and 13 years old when she was adjudicated delinquent by a Michigan court for committing that crime.  When Williams moved to Florida in 2005, she registered as a sex offender with the Florida Department of Motor Vehicles, but she failed to re-register when she changed her address in 2009.  Because of that, she was charged in criminal court with failing to register as a sex offender.

Williams asked the judge to dismiss the case against her because according to Florida law, a person is a sexual offender when that person “as of July 1, 2007, has been adjudicated delinquent for committing, attempting, soliciting or conspiring to commit certain [sex crimes] in [Florida] or another jurisdiction when the juvenile was 14 years of age or older.”  The judge dismissed her case, so the prosecutor appealed.

The court of appeals agreed that Williams’ case should be dismissed because she was only 13 years old when she was adjudicated delinquent in Michigan.

Posted in: Sexual Offenses

Self-Defense Cases and the Victim’s Character Trait of Violence

Sunday, June 1st, 2014  |   No Comments »

In the case of Narcisse Antoine versus the State of Florida, Mr. Antoine was convicted of attempted second degree murder with a firearm.  He was at a nightclub when he was punched in the jaw.  According to Antoine, two men appeared to be reaching for weapons, so he pulled out a gun and began shooting, killing one of the men and shooting the other several times.

At his trial, Antoine argued that he acted in self-defense when he shot the two men because he reasonably believed that they were about to shoot him.  In support of that defense, Antoine presented the testimony of one of the nightclub bouncers that one of the men who was shot, named Hammond, had a reputation for violence.  However, Antoine did not know about that reputation when he shot Hammond.

The judge at Antoine’s trial told the jury that if Hammond did, in fact, have a reputation for being a violent person and if Antoine knew about that reputation, then the jury could consider those facts in deciding whether Antoine reasonably acted in self-defense.  The problem, of course, was that Antoine did not know about Hammond’s reputation for violence.

Antoine appealed his conviction, and his case was overturned because of what the judge told the jury.  The court of appeals stated that a victim’s reputation for violence is admissible in a self-defense case in order to prove that the victim was actually the aggressor, and it is legally irrelevant whether the perpetrator knew of that reputation when he committed the act of violence.  So, in this case, Hammond’s reputation for violence was admissible at Antoine’s trial in order to help Antoine prove that Hammond was actually the aggressor, and Antoine’s knowledge of Hammond’s reputation prior to shooting him was legally irrelevant.  But because the trial judge told the jury that Antoine had to know about Hammond’s reputation before shooting him, Antoine’s case was reversed for a new trial.

Posted in: Self-Defense

DUI and the Accident Report Privilege

Friday, May 23rd, 2014  |   1 Comment »

In the case of Kenneth Wetherington versus the State of Florida, Mr. Wetherington was charged with committing the crime of felony DUI based upon his involvement in a single-car accident.  At Wetherington’s trial, a police officer testified that he spoke with Wetherington while investigating the accident and that Wetherington admitted he was driving the car when it crashed.

The jury in Wetherington’s case convicted him of DUI so he appealed.  Wetherington argued to the court of appeals that the officer should not have been allowed to testify that Wetherington admitted he was driving the car at the time of the accident because the officer’s doing so violated Florida’s accident report privilege.  According to that particular law, statements made to a police officer by a person who is involved in a crash should not be used against that person at his trial.  The reason behind that law is that it is unfair to require someone to give information to a police officer and then use that same information against him at his trial.

The court of appeals agreed with Wetherington, reversed his conviction, and ordered a new trial because the only direct evidence that Wetherington was the driver of the car that crashed was the statement he gave to the officer during the accident investigation.

Why did a Judge Deny a Fire Fighter’s Request to Have His Record Sealed?

Friday, May 16th, 2014  |   No Comments »

On my website Florida Criminal Records:  Frequently Asked Questions, I just wrote an article entitled “Why Was a Fire Fighter’s Request to Seal His Record Denied?”  If you would like to read my article, simply click on it to do so.

Robbery and the Use of Force

Friday, May 9th, 2014  |   1 Comment »

In the case of C.B.B. versus the State of Florida, a child with the initials “C.B.B.” was found guilty of the crime of robbery based upon the following facts:

C.B.B. and two of his friends were accused of robbing another middle schooler of his bicycle.  According to that middle schooler, he was riding his bicycle when one of C.B.B.’s friends grabbed his handlebars. C .B.B. then hit the bicyclist in the back of the head. The bicyclist ran away leaving his bike behind. When he later returned to that same area with his mother, his bicycle was gone. It was located the next day. C.B.B. and his two friends were charged with robbery.  At his trial, C.B.B. said that he punched the bicyclist because he had previously spit a mouthful of water in C.B.B.’s face after losing a basketball game.  C.B.B. also testified that the bicyclist threw rocks at him and verbally taunted him prior to C.B.B. knocking him off his bicycle.  C.B.B. also said that he did not take the bicycle and that he never intended to take the bike.

C.B.B. was found guilty of robbery at trial, and he appealed.

The court of appeals stated that in Florida, robbery is defined as “the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.”  

But in this case, the force used by C.B.B. was not in furtherance of a plan to steal the bicycle.  Furthermore, no evidence was presented at C.B.B.’s trial that he ever intended to take the bike.  Even the bicyclist himself testified that he and C.B.B. had had a previous argument and that the blow to the back of his head had nothing to do with his bicycle.  Therefore, the court of appeals reversed C.B.B.’s conviction for robbery.

Posted in: Robbery

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