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Search Warrant Defense Lawyer in Tampa

Search Warrant Defense Lawyer in Tampa

FloridaDefense.Com  Podcast 9

Part 3 of When a Search Warrant is needed in Tampa

Podcast 9

Brad: Alright, you’re listening to the FloridaDefense.com podcast hosted by The Bauer Crider & Parry Law Firm. We’re speaking to Criminal Defense Attorney, Mike Kenny. Good morning, Mike.

Mike: Good morning. How are you?

B: Good. The past few weeks we’ve been talking about search warrants. We’ve kind of gotten into the technical ends of it. We talked about also search warrants on computers.  Today’s a little bit different. We’re going to be talking about a specific case that you had to file a motion to suppress that evidence based on a search warrant, correct?

Michael: That’s right. Some years ago I had an individual that was arrested and charged by information, which is a charging document in the state of Florida, with possession of 20 counts of child pornography. This warrant was executed kind of like we talked about last time, in relation to a search warrant on a computer. The agency involved made a determination that there were known images of child pornography going to a particular IP address. They determined that the IP address owner – the company that had the IP address was a particular company, so they sent a subpoena out to that company to get the name of the person whose account the IP address was listed to. And then they go that person’s name, they got that person’s address, and the law enforcement agency went to a judge and got a warrant to search this individual’s computer; essentially his home and all the computer items in the home. The search warrant was executed and the individual was inside the home. The individual was arrested after certain images of child pornography were found on the computer. When I say certain – numerous amounts at a minimum of 20 which is what the state ended up charging him with initially. And then the person came to hire me. So what I do, in a case where I know that there is a search warrant, the first thing that I want to do is look at what that search warrant says and then I want to look at what’s called the affidavit to the search warrant.  So the search warrant is the actual warrant from the judge. The actual document that the judge gives to the police officer saying “you may search this home” and I review that warrant because I want to make sure that everything in the warrant was followed. As I said before last week, search warrants are written with great particularity. They tell exactly what is allowed to be searched and where and all of that. So you want to check that first to make sure it’s not too vague. You want to make sure it meets Constitutional muster, let’s say, and all the rules were followed. And then, what I think might be even more important than the search warrant is the affidavit for search warrant. The affidavit for search warrant, as the first name implies, the affidavit is the statement under oath from the law enforcement officer outlining the reasons why he believes evidence of a crime is going to be found in this particular home, this particular address. So what a law enforcement officer has to outline in an affidavit for a search warrant is A that a crime is committed and that he believes that evidence of that crime is gonna be found here and he’s got to tell the judge why. So I reviewed this affidavit and I noticed a couple of things that probably immediately jumped out at me. I would say the first thing that jumped out at me, what I read in the affidavit was that the images when the officers were initially doing their search – not the search but the internet gathering before they actually get the warrant – I noticed that during that period of time, the person, my client lived at a different address. He lived at one particular address in an apartment community and all of the images that the law enforcement officers had which they determined were going to a particular IP address were going to this one house or this one apartment. Some time had passed and then the law enforcement officers went to secure a warrant and they realized that during that period of time my client had then moved to a new address. Law enforcement officers went and secured the warrant. They didn’t do any additional searches or any additional internet gathering. They just asked the judge for the warrant and then they went and executed the warrant. So why does that matter to me? Why does that jump out at me? Well, because the first thing that you have to understand is that the probable cause question is probable cause that evidence of a crime will be found in the place. A person may have committed a crime, but you’re not really getting the warrant to arrest the person, you’re getting a search warrant. You’re getting a warrant to find evidence. So if a person moves from one location to another location, one very obvious question might be, “where is the belief that the evidence will still be in this new place? Why would we believe that it was transferred from one place to another? There’s a lot of other questions that come after that but that’s the first one that may come to mind. The other thing that I noticed was the way the warrant was written, and I think it was written this way because there was no other way to write it, but the way the warrant was written, it was saying that unknown persons in a particular county were downloading images of child pornography. It specifically said, “the information leads the affiance to believe that a computer or other digital media capable of securing internet access of the above described premises residence cartilage or related vehicles thereon was knowingly used by unknown person (and it even has a forward slash and an s) as the instrumentality of a crime or means by which a felony was committed. So that word “unknown persons” just jumped out at me. Because what is that essentially saying? Well, that’s saying that at this point there is no evidence or information that the law enforcement officers have to believe even who the person is downloading the images. And that obviously makes sense, because all you get when you get an IP address is a person who has an account. And as I said last week, tons of folks have access to computers where multiple users maybe using that computer. So that was one other thing that jumped out at me. And the last thing that jumped out at me, which may have been the most crucial in everything is what jumped out at me after I started reading the police report. What I learned from the police report is that the judge allowed the officers to search the home and when the officers went to search the home, they realized that that particular person wasn’t there. Now, in my experience in doing this for quite some time is that when law enforcement officers are going to search a house, search a house for drugs, search a house for possession of child pornography, really search for anything, they really would like to do it when the person is present. They don’t have to do it when the person is present, they can break down the door and execute the search. But they want to do it when the person is present because they usually want to catch the person off guard and they usually want to catch the person either in the act of the crime or where the person is in the position where he might admit to being involved in a crime. So that’s one of the situations that happened here. Law enforcement officers determined that he wasn’t present and they had an expectation that he’d be back at another time. And that time was beyond the then days, and I’ll tell you in a minute why that’s so important. Beyond the ten days that the warrant was issued. So ten days expire, law enforcement officers go back to the judge and get another warrant to search the same residence and they used the identical, the identical meaning the exact same affidavit they provided the first time. They didn’t use any new information. They didn’t use any follow up details. Not one word was different. It was literally a photocopy. Then they went back and they executed the search warrant, found my client in the home, found several images on the computer, and my client was arrested. So, we have three huge things going on right here. So when I found out that in the police report that a second affidavit was prepared and a second warrant was obtained, I obviously got both affidavits, both things that were submitted to the judge. And I sat there and I looked and I said, “wow, these affidavits are identical.” And there’s a reason why this matters. In the State of Florida, in most cases there is a concern about staleness. Staleness is, as the term implies, something getting too old. In Florida, ten days is the time limit a person has when a judge authorizes them to execute a search. And after that ten days, the information is legally, by as a matter of law presumed stale. So, the law enforcement officers got a warrant to search this house. Ten days had expired and then they went back and they provided the judge with the exact same warrant they showed before. So, the first thing that goes off in my mind is, “well, if as a matter of law, the facts that were provided to the judge are now stale, meaning no longer sufficient to justify the search of the residence, you can’t provide the same exact facts to search the residence again. You have to at least provide something new. At least throw another word in there. Do something. But these folks didn’t do that. They took the same exact affidavit and just made a photocopy. They got the same facts and the judge issued a warrant again.” And I’ll tell you one of the trickiest parts in a search warrant case is the fact that a judge actually issues a warrant. We have protections. We have protections from unreasonable searches and seizures and a warrant issued by a judge is considered a very high indication that those rules are followed and that person has been subject to a reasonable search. That’s because a judge actually looks at the facts and makes a determination, believes there’s probable cause, and issues it. So it’s very hard, my experience has been it’s very hard when a search warrant has been issued, that you can get – that you can win a case. That you can get a judge to actually suppress evidence and say, “no, I am going to suppress everything that was found.” And suppress meaning, “I’m not going to let the state use any of the images in evidence because I don’t believe there was probable cause.” Because we don’t expect – when I say “we” – judicial system in general; courts, lawyers, judges – nobody expects law enforcement officers to think like judges. And we don’t hold them to that same standard, so if a judge issues a warrant, it’s presumed valid and a search is presumed valid. So that’s why it’s so difficult to get a court to say, “no, I’m going to find that the search was unlawful and I’m going to suppress all the evidence found.” Because presumably you have it signed off on by a judge. But in this particular case, it struck me that the law in the State of Florida is that after ten days the evidence is no longer considered enough to support a search. And the reason why we have that ten day requirement is the whole point of a search warrant is that you are telling a judge that you believe under these facts and circumstances that evidence of a crime is going to be found in a particular place.  So as sort of like a bright line rule, a way to catch these searches that go on maybe in perpetuity, that happen months and months later and disrupt the lives of folks when they shouldn’t needlessly, they said ten days. If  a judge says you can search the house, you must search that house within ten days from the time the issuance of the warrant. And in this particular case, the ten days expired and then they went back in and provided the same exact affidavit. So, that’s one thing I thought. I thought that this may be an issue here. Going back to the unknown persons, what that tells you right off the bat is that they don’t know who the person is, and I wouldn’t expect them to know who the person is just by finding an IP address like we were talking about. So why does that matter? Well, in this particular set of circumstances, we have the facts were that the person was using a wireless account. A wireless internet account, which everyone talks about it now and probably everyone has access to things like wifi, and in that particular scenario as probably everyone knows who uses wifi, any phone any computer if you’re within the signal range can actually use that particular IP address. When you go to Starbucks and you have your coffee and you use your computer and you use their wifi, all the work that you are doing on that computer looks like it’s going to that particular IP address. And why does that matter in a case such as this? Well, if you’re living in an apartment complex where there are numerous apartments right next to each other, and you have an unsecured line, meaning you don’t have to type in a code to get onto the wifi, it’s potential that your neighbor could be downloading images using your IP address right next to you. I mean, I can’t tell you how many times when I used to have my iPhone set on search for networks or request to be signed up on networks, I’ll be driving by on my street in my car and as I pass houses by, things will pop up. Do you want to join this network? Do you want to join this network? So I know that there’s a range that these wifi systems have that go beyond the physical boundaries of the house. So that’s a legitimate concern. If in this particular situation, it was a neighbor that was downloading these images and my client then moves to another home, how can the officer outline reasonable facts to indicate that they believe evidence to a crime will be found in this new home when he might not even have been the one downloading the images? So that was another major issue that popped up. And the fact that all the evidence that the officers found prior to getting a search warrant was when he was going to an IP address when he was living at this other address. So that was significant.  So in this particular set of circumstances, my client is charged with 20 counts of possession of child pornography. These types of crimes are very very serious, as probably I don’t even need to tell you. And they carry with them very strict penalties. So this was a case where my client was looking at a particular amount of time in prison. And after reviewing the case and reviewing the search warrant, I had some serious concerns about whether or not this was in fact a legitimate search warrant. So, I made a decision with my client after going over all the facts, to file what’s called a motion to suppress. A motion to suppress is a document where you challenge the reasonableness of the search. What that entails is that you say that there’s been a violation of my client’s 4th Amendment. And the 4th Amendment has basically this rule saying that there will not be unreasonable searches and seizures as we’ve talked about before. But a rule is no good if it doesn’t have any teeth. That’s a double negative, and I apologize, but that’s the easiest way to say it. If there isn’t any teeth to this rule, no one is going to work really hard or very diligently to make sure that your rights are preserved. So the US Supreme Court years and years ago came up with a basically a penalty if the 4th Amendment was violated, and that’s called the exclusionary rule. The exclusionary rule to the 4th Amendment says that if a person executed a search and violated a person’s 4th Amendment right, any evidence found from that search – that illegal search – will be suppressed. Suppressed meaning the prosecutor will not be allowed to use that evidence in court. So what does that mean in a possession of child pornography case? Well, that means all of the images that law enforcement found on the computer, if the court made the determination that it was illegally obtained, would suppress all of those images and there would be absolutely no evidence that the prosecutor could present that a crime was committed. Which, long story short, means the case would be dismissed. So we filed this motion to suppress and we brought up the issue about not being able to identify the person in the warrant, so there’s really no way you can transfer probable cause was my argument from one house to another house. Just because my client moved there, if you don’t know who the guy is downloading the images, why would you search that new house if you don’t know it’s my client downloading the images? Because if you don’t know it’s him, you don’t know he’s bringing those items to the new house. That’s the law enforcement way to try and get around that is what they indicate is the people who download these types of images carry these images on them. They value them highly and they take them with them wherever they go. They usually have them on them, so that argument might make sense if they could say it was my exact client who was downloading the images. If he moves from one house to the next, they could probably still tell the judge, “judge we believe evidence of a crime will be in that house because we know he was downloading images in this house. And he then moved from this house to this house. Logically, he’s still gonna have it on him, because we know from experience that people like this tend to keep these images on them. They cherish them. They don’t destroy them.” That kind of thing. That presumption works if you can identify the person downloading the images. The problem is you can’t identify the person with just an IP address. So if you can’t identify the person, the presumption is utterly meaningless. One guy moves from one house to the next, why would you want to search his house? If you don’t know he’s the guy downloading it, how do you know it’s there? How can you even say that you have a good faith basis to believe it’s there? You might have a hunch, but search warrants aren’t based on hunches. So that was one very compelling argument, but I would say that the argument that probably ruled the day was the ten day expiration. In that set of circumstances like we talked about, law enforcement had an ability to execute the warrant within ten days. They did not. They probably could have gone back to the judge and maybe said, well cancel this warrant out. This information is probably still relevant but we just want to get it at another time. They could’ve written the affidavit with new information. They could’ve put something in there, but instead they just used a carbon copy of the original affidavit. And if it’s presumed stale legally, my argument to the court was it can’t possibly be revived just because a judge looked at it a second time. 20:35 In the end the judge agreed. And the judge made a finding that the search was illegally performed, that there wasn’t probable cause for the search, and all of the evidence was suppressed. Now there’s a catch all that law enforcement officers have and it’s called the good faith exception. I was kind of eluding to it a little bit earlier. And that’s really why search warrants are so hard to beat in a lot of instances. There’s this good faith exception which basically says, “listen, the whole reason we came up with this exclusionary rule – this rule where we suppress evidence – was not to give guys who are committing crimes this get out of jail free card. That wasn’t the idea behind it. The idea behind it was to punish bad police behavior because it occasionally happens. And we want to make sure that law enforcement officers follow the rules. So this good faith exception is designed to say that if the officer is just simply following what he believed was a good search warrant – issued by a good search warrant – then he is not going to be and he is not been found to have acted unreasonably or illegally, then he is not going to suffer the punishment. When I say he, the government is not going to suffer the punishment of there being a failure in the warrant. And that good faith exception means that if the officer acted reasonably, the search could still be considered valid and all of the evidence would be legitimate and used against my client. And that was my biggest concern, that the court was going to say, “listen this was a warrant signed by a judge. The officer believed he had a warrant signed by a judge and he went and executed it. He didn’t do anything wrong.” And that’s generally the case if there’s a warrant signed by a judge. But in my research I found there are certain ways to avoid that good faith exception. And the good faith exception is when there is absolutely no probable cause. When the probable cause provided is so lacking that a reasonable officer would realize that there’s an issue and he still goes forward with it, he’s not going to be protected by that exception to the failure of actually having probable cause in the warrant. And the argument that I made to the court in this particular instance was that the officers know that you have this ten day rule and after ten days the warrant is dead. They have to know that once the warrant is dead, providing the same exact information for a dead warrant can’t possibly revive it. It’s not reasonable to believe that it would. The court agreed and as I said, the evidence was suppressed. And that wasn’t the end of things, of course, because when a court suppresses evidence, the state is given an option of they have 30 days from the time of judgement to file an appeal and have the appellate court, in this instance the District Court of Appeal, review the facts, review the transcript from the hearing, and review the arguments from the case law from the lawyers, and determine if the court got it right. So in that instance I was involved in an appeal. The state appealed, we were lucky enough to win that appeal as well, so the District Court affirmed the trial court’s ruling and in the end the case was dismissed by the state. Not only was it dismissed, because my client met certain standards – he’d never been convicted of a crime before in the state of Florida, you can have cases expunged, meaning all record of it is destroyed. And because my client wasn’t convicted of anything in this particular instance, I had the case completely expunged. I will tell you that that doesn’t happen every single time, but it’s never gonna happen if somebody doesn’t pick up that search warrant and pick up that affidavit and start doing the research and investigating that they need to to find out where there’s a weakness. I think in this particular case, there’s a lot of folks who were arrested for child pornography during a particular sting and I think there was a rush to just try to get as many folks as they could in. I think there were some mistakes in law enforcement in putting this affidavit and case together and that’s something that ended up working to have this case dismissed.

B: So, just importantly, if for some reason you are – a person is arrested, they need to really contact an experienced attorney like you guys’ firm there to make sure that you’re looking at all of that evidence or not all the evidence but yeah all the evidence that they are submitting to the courts, correct?

M: Well, it’s exactly correct. The idea is, just like people don;t think every single doctor is the same, not every lawyer is the same. There’s people have varying levels of competence, varying levels of experience. Some people are very very good and some people may not be so good. I believe that probably every single person who gets arrested, everyone wants the best lawyer that they can have. That comes to doing some research and finding out what lawyer it is that you think you need and what particular areas of law that you need and whether or not he has the experience, the capability, and the confidence to handle the case for you. Something that helps that out is what the State of Florida has called Board Certification. My firm, we have three partners who are Board Certified in Criminal Trial Law and that means that we are experts in Criminal Law. We’re the only folks who get to say we’re experts, and we’re the only folks who get to advertise as specialists in a particular area of the law, which is criminal law.

B: Alright, Mike, in closing what kind of advice would you give someone if the authorities show up at their house with a search warrant?

M: The advice is cooperate. I don’t mean sit down and have a conversation and tell this person your life story who is searching your house. What I mean is get out of the way because they are authorized by the law even if the warrant is bad, if the officers come in and they have a warrant to search, they’re going to at least get to do that search. Fighting them and stopping them isn’t going to be very helpful. Get out of the way. Pick up the phone. Call a lawyer and find out what needs to be done to defend you if something is going to develop. I will tell you that the worst thing that happens is when the search warrant is executed the officers may want to have a conversation with a person and that’s probably the most vulnerable time a person has. He’s caught off guard, he doesn’t really know what to expect, and he just starts talking and answering questions which he may think is helping him which later turn out to hurt him.

B: Alright. Anything else, Mike?

M: No, thank you very much.

B: You’ve been listening to theFloridaDefense.com podcast sponsored by the Bauer Crider & Parry Law Firm.

 

Selling Alcohol to Minors in Florida

In the coming weeks over 900,000 students will commence matriculation at Florida’s 137 colleges. There is no question that alcohol is present and abundant at most colleges today, some legally purchased by those 21 and over, and some not. If you are a bartender, retail clerk, or food service employee, you are probably well aware of Florida’s law prohibiting the sale of alcohol to minors.

Selling Alcohol to Minors in Florida

For purposes of review, Florida law states that selling or serving alcohol to anyone under the age of 21 is illegal. A first-time offense is usually charged as a Class B misdemeanor, with the possibility of a $500 fine and up to 60 days in jail. Driver’s license suspension or revocation may also be applicable in certain cases. Undercover stings undertaken by County Sheriff’s Offices are not uncommon in Florida, and frequently result in arrests.

Often, under civil law, if an establishment fails to check the identification of a minor who purchases alcohol, becomes intoxicated, and causes an accident, the establishment is liable. Additionally, the establishment may still be liable if the underage drinker uses false identification. In 2012, a Sarasota convenience store that provided alcohol to a 17-year-old who was subsequently killed in an alcohol-related car acciden was ordered to pay $716M to the family in a wrongful death suit.

If you have been arrested for selling or providing alcohol to a minor your livelihood, community standing, and freedom are in jeopardy. Selling alcohol to minors is a serious charge in Florida. There are, however, legal defenses available to you. It is important that you avail yourself to these defenses by consulting with an experienced Tampa-St. Petersburg-area criminal defense attorney.

Contact the determined criminal defense attorneys at Bauer, Crider, and Parry today for a free initial consultation.

Also see: Florida’s Division of Alcoholic Beverages and Tobacco “Facts About Underage Drinking in Florida” (downloadable PDF)

Tampa Search Warrant Defense Attorney

Tampa Search Warrant Defense Attorney

Part 2 of When a Search Warrant is needed in Tampa

Brad: Alright, you’re listening to the FloridaDefense.com podcast. We are speaking to Tampa Criminal Defense Attorney, Mike Kenny from the Bauer Crider & Parry Criminal Defense Law Firm. Mike, how are you doing?

Mike: I’m doing very well. How are you?

Brad: Last week we talked about search warrants. We’re going to continue that conversation today, but do you want to give us a brief recap of what we talked about?

Michael: Sure, the search warrants come up when the government is going to execute what’s called a search on a person’s property or home. The term search is a very important legal term. It’s only considered a search if a person’s reasonable expectation of privacy has been implicated. We talked last week about the reasonable expectation of privacy a person in their home is considered to have a much higher expectation of privacy than they would when they’re having a conversation with somebody on a park bench in a crowded park where people are walking by. Same thing with a person doing something kind of in plain view within the confines of their vehicle that has windows all around it. So that is the time where we have to determine whether or not there is actually a search. If a search happened, then the other question is, “was there probable cause?” and probable cause, which we defined last week, essentially a fair probability that contraband or evidence of a crime will be found inside of the car. The officer is going to have to have specific facts that he can point to, observations that he can provide to the court that is reviewing the search to determine that he did have probable cause. And then finally, if the officer has that, he would have to get a warrant to execute a search. Meaning he would have to petition the court, show the court the affidavit of probable cause and provide those facts to the court, the court can make the determination that he has the warrant to execute a search on the property. There are some exceptions to that requirement which we talked about last week and that brings us to a whole other area of questions. What happens if a person is subject to a search and the officer doesn’t have probable cause or a warrant? That’s something that we can discuss during our next conversation.

B:Real quick, Mike, you guys practice criminal defense law in Penniless County, Pasco County,  Hillsborough County, you know, the Tampa area. Is this search warrant that you’re talking about Florida specific or ?

M:That’s a good question, actually, because a lot of people know that we’ve got two types of system. We’ve got the State System where we have state laws and state courts and then we have the Federal System where we have everything’s kind of controlled by the US Constitution. In the State of Florida we have a specific clause in our Constitution called the Conformity Clause. The Conformity Clause means essentially what it says, that whatever decisions made by the US Supreme Court about the 4th Amendment, which covers search and seizure type issues, whatever decisions the US Supreme Court makes, the State Courts will conform their bindings and will adopt, basically, those decisions and we use those as the standard. So anything that we talk about in Florida about search and seizure issues is really gonna have the same exact implication throughout the US. The only time it wouldn’t is if there is some new and novel decision made, like a case of first impression that came up for instance in the state that hasn’t happened anywhere else. But for the most part, it’s exactly the same.

3:56 B: Ok good, well what about, let’s talk specifically about search warrants just on computers, computer files, contents on your computer…

M: Alright, well the first question that would come up is does a person have a reasonable expectation of privacy for the content of his or her computer. And I think most people would  answer, “Absolutely!” I think if you ask most people if they believe that the programs on their computer, the photographs on their computer, any kind of data files that they have, that they believe that those things are personal and secure and that they expect those things are private from other people’s eyes. I think most people would answer with a resounding “yes!” Most people probably have a passcode on their computer. The sole of keeping unauthorized users out and prying eyes out, I would say. So it becomes very interesting with certain types of cases when we’re talking about search warrants specifically for computers. Most of the time, people have their computer. Well, I say most of the time, but it used to be maybe a few years ago most people had computers in their home. I think we’re getting to a point today where computers are a lot more accessible and easier to carry around that you see that maybe not everyone has a desktop computer anymore. But, still, most of the time people are accessing their computers from someplace where they have some type of wifi connection or some type of data or cable connection. And most of the time what people do on their computer is not open for public view and they absolutely have a reasonable expectation of privacy on their computers. And to get a warrant to search the contents of the computer, the government would have to have some reason. Some reason to provide to the court, a judge, “I’d like to search Mr Smith’s computer. Please let me do it.” Well, the judge doesn’t just say, “Well, do you want to? I’ll give you the warrant.” The judge says, “I’ll let you do it but you’ve got to provide me some reasons why you should search the computer. And the reasons like we talked about last week are probable cause. The individual who is going to be searched has to be shown, well the officer, I should say, has to explain that there is a  fair probability that evidence of a crime is going to be found on that computer. And the only way the officer is able to do that is to provide details, facts. Here’s the most important thing when it comes to any type of search and a search warrant: The facts that are provided to the judge that give him the basis to execute a search on a computer have to be legally gained. Meaning, you can’t perform an illegal search on a person’s computer and then go to a judge and try to cure it by saying, “hey judge, I found these images on a person’s computer. They are illegal and I’d like to search his computer to seize these images.” Because if the initial search was illegal, you can’t justify or cure an illegal search by getting a warrant. So the way that becomes very interesting is with computers, in particular types of cases where there might be images downloaded onto a computer that are absolutely illegal. That comes up most often in cases involving child pornography. Where individuals will download images that are out there on the internet of folks who obviously have children and it’s absolutely illegal. The hard part for law enforcement in knowing who has these images on their computers and how they can get warrants to search these people’s computers. Because, obviously most people don’t have conversations in a public park about what they have on their computer. And they certainly don’t advertise what they have on their computer, especially things of this nature. So the government has found a way, at least in my jurisdiction, has found a way to find out what people have in their computer on certain occasions without it being considered a search. Because that’s kind of the catch 22 we have. You can’t get into the computer unless you have probable cause and you can’t provide probable cause unless you get into the computer to show the judge what the guy has in his computer. So you kind of have a tough situation for law enforcement on occasion. But what has developed in the internet these days and has been developing for a while are these websites called file sharing websites. I may be dating myself a little bit but I remember when I was much younger there was a file sharing website called Napster. Napster was this thing that developed and the music industry was very upset and everyone got upset about it and it was where people would have songs on their computers and you would sign up for this Napster file sharing website where it would allow people to open up the contents of their computer to folks all throughout the internet. You’d type in a search for a song. You’d type in whatever song you were looking for and the search would find a computer that was open and was out there. And it would say, “I found a computer that has it” and it would begin to download or copy the song from another person’s computer. That’s in a nutshell what file sharing is. People are sharing certain files and they are allowing their computer to be open to the world – to the internet. Well, that same idea of file sharing also occurs in this child pornography world where folks who are looking for these illegal images type in specific searches and they go to these file sharing sites and they search the internet for other computers that have it on their computer and they share these files. They download these files. So what the government has begin to catch onto is that these file sharing sites for a period of time open up their computers and images, believe it or not, can be caught in the transmission between computers over the internet. So what the government has done is through these specific searches, it’s kind of like just casting a net out into the internet, and they cast this net out and they look for these specific data components that kind of set an alert. They have a – in the State of Florida there’s a specific system designed that looks for specific known images of child pornography. It has become one of these unfortunate stories that some of these images are used time and time and time again and they become known. They become known to law enforcement. Law enforcement even has names of the individuals who are pictured. And what happens is they law enforcement does this search on the internet and it captures these images being transferred from one computer to another computer. And then this computer that the law enforcement officers are using or this program, I should say, alerts them that they have found a known image of child pornography. And they then determine where it is coming from or where it is going to – what the IP address is, which is what every single computer has when they are downloading images. So the question that you have is, well how can they do that? They’re basically going into your computer and searching it. And that brings us back to the first major question, “Is that a search?” Because the fact of the matter is if it is a search, it is absolutely illegal. The government can’t do it. It can’t be supported and anything they find can’t be used. But the unique thing about this particular file sharing scenario is that they are opening up their computer to the world and as we talked about last week, when you open up something for the whole world to see or the whole world to come in and view what you have, you do not have a reasonable expectation of privacy. That is not an expectation that society is prepared to recognize as reasonable. If you open up your computer for the whole world to see. Now you might have a subjective expectation of privacy wherein the guy on the computer might not even have a clue what file sharing really is. He might not even know that when he’s downloading these images, that he’s opening up his computer for other folks to download what he has on his computer. But that doesn’t matter because the standard is a reasonable expectation of privacy, meaning both you have to have the expectation and it has to be objectively reasonable to the reasonably prudent individual. And in this situation, file sharing is not recognized as something that is private because you open everything up. So because there is no reasonable expectation of privacy, you cross out that word search and it is not considered a search. And what does that mean? If it’s not considered a search, the 4th Amendment is not implicated and you don’t need probable cause. And the reason why that is so important is because these officers who are making these searches don’t know who they are looking for. They don’t know who they’re looking for until they get the images. And that’s when we start to walk into the actual search warrant for the particular computer. So step one, the officers do this net search for all of these known images of child pornography. And they determine what IP addresses are sharing these images or uploading these images. And when they get that, they then identify the IP address, they look for how many times images have gone to that computer on a particular time period. And after they get that information, they then send a subpoena to the internet service provider. When they send a seeping to the internet service provider, the service provider provides the name of whoever’s name is on the account. And when they provide that name, the officers now have enough in their estimation their the number of searches that have been done the number or images that have been downloaded that they can find, to go to a judge to get a warrant to search that person’s home. What the officer would have to be able to provide to the judge is the facts that I just articulated, that is “we did this internet search. We found a lot of known images of child pornography going to this particular IP address. We subpoenaed bright house networks. Bright house networks told us who the account holder was and we want to search Jon Smith’s home because we’ve seen on these three months or this many days this many images of child pornography have been downloaded to that computer.” At this point, so far they still don’t know the identity of the person downloading the images. And why is that? Well, because a lot of people do, in a home, have access to a single computer. All they really know is that this person is an account holder with this IP address. At that point, they go to the judge and they provide that information. All of the information has been obtained legally and the judge makes a determination whether to issue a warrant. And if the judge issues the warrant, then the person must comply when the officers come to the house to search the home. And the warrants are pretty encapsulating when they talk about a search for these types of images. They talk about searching the home, computer, any computer equipment in the home, any data equipment in the home, and the officers execute the warrant and they begin to search all of the data files. And if at that time they find actual images of child pornography on the computer, then that’s where the possession of child pornography charge comes and the person gets arrested at that point.

B: Does that also include smart phones?

M: It would. The warrant is to search the location the officer believes the evidence is going to be. So most of the time it is  a home, because most of the time people keep computers – even if they’re a laptop – they usually keep them with them or somewhere close to them. And the IP addresses goes to a particular address so the search warrant would authorize whatever the officer has asked for, whatever they can have a reasonable expectation to find evidence on. So that would cover computers, and generally that covers phones, ipads, it even covers playstations and things like that. The important thing to remember about a search warrant is the search warrant is super specific and if something is searched that isn’t mentioned in the warrant, that could be a violation of the 4th Amendment and that particular item of evidence might be suppressed if anything is found. So I would say law enforcement, in my experience, is very good at making it as broad as they can while still making it conform with the 4th Amendment.

B:Alright, you want to kind of just give us a recap?

M: Sure, so what we were talking about for this period of time is search warrants when it comes to computers. Obviously, the contents on a person’s computer are private. Everyone is prepared to recognize that individuals have a reasonable expectation of privacy on the contents of their computer. So how do officers get these images? How do officers find evidence of crime where people are downloading these types of images on their computers if they can’t even get into their computer? The one unique scenario that has come up that is used quite a lot in cases that I have had experience with are where people go to these file sharing sites and they open up their harddrive essentially and search other people’s hard drives for particular images that they’re looking for. And once you open up your hard drive, that expectation of privacy is gone. And if you don’t have that expectation of privacy, you don’t have a search. If you don’t have a search, you don’t have a 4th Amendment implication, which means the officers can do it. There’s no rule to stop it and the officers then get the information that they need to provide to a judge to get a warrant issued to search an actual computer.

When is a search warrant required?

When is a search warrant required in Tampa, FL?

Brad: Intro … Let’s jump into this this morning. We’re going to be talking about search warrants in the next few podcasts. So, the first question really is, “When is a search warrant required?”

Michael Kenny: Ok, well that’s a really good question. You know, we hear things about search warrants being out there and issued and I’m sure a lot of us don’t really understand what how many questions are involved when a search warrant comes up. Anytime the government executes a search on a person’s property or home or even his person himself, that is considered a search. A search warrant is required in almost all cases unless there’s some type of exception. The fourth amendment of the US Constitution has this simple instruction to the government, and it says that folks are not going to be subjected to unreasonable searches and seizures. What case law over the years has helped us understand is that a search is going to be considered a violation by the government or an intrusion by the government into a person’s reasonable expectation of privacy. There’s some other changes that we’ve had since then which involves a possessory interest that a person has which is very recent, but in general we’re talking about a search, we’re talking about the government invading a person’s reasonable expectation of privacy. There’s two prongs to an expectation of privacy. There’s  the person’s own expectation, which is considered a subjective expectation of privacy, and then there’s the objective expectation – that’s where the term reasonable comes from. Meaning an expectation that society or the reasonably prudent man would consider something that he would expect to be private, fair to be considered fair and private. So, you only have a search when a reasonable expectation of privacy is violated. I can give you a quick example. If somebody is in a park, and they are having a conversation out loud and screaming at another person saying, “listen I have a very large quantity of drugs sitting in my car right now and I plan to sell it to someone down the street” Well, there really in that circumstance can’t be said that there’s a reasonable expectation of privacy in that conversation. Because that conversation is held out in the open in the public in a park where people are walking by at a very high level. If you convert that to a person having a conversation in their home and officers are using high powered recording devices to capture that conversation, in that instance you would say that there is, without a doubt, a reasonable expectation of privacy in that conversation.  This person is having a conversation in the comfort and seclusion of their home, not in the open park. In that second set of circumstances, if the officers are using a recording device to capture that, that most certainly would be considered a search. Whereas the conversation in the park is not a search. So the first question you have to ask yourself is, “Is there a search? Is there some intrusion on a person’s reasonable expectation of privacy?” The second question after that is asked is, “Is there probable cause to execute the search?” And probable cause with regard to a search warrant, has been defined in a lot of different ways, but the basic meaning is a fair probability that contraband or evidence of a crime will be found. And the officer would have to have sufficient data, sufficient facts to rely upon to come to that conclusion that evidence or contraband will be found in a particular location. That standard is one of the most important standards, because without the probable cause, you don’t get to do the search. It doesn’t matter whether you might have a warrant somehow erroneously issued, you can’t do a search without probable cause. Every search that happens has to have both probable cause and a warrant. And the only time that you don’t need a warrant is if there is some exception to the warrant requirement. So another example is someone in a car. Someone driving by in a car if they have some clearly illicit contraband sitting in the vehicle seat and an officer happens to walk by and notices the contraband right there in plain view, then it is not considered a search because the person is driving his car on the open road with these big clear windows and society would not be prepared to recognize that that person would have a legitimate reasonable expectation of privacy. So the officer sees the item. And when he sees the item, he would develop probable cause to execute a search. And because it is a vehicle there is an actual exception to the warrant requirement called the vehicle exception. And in those circumstances the court has said an officer would not have to stop after he sees the contraband in the vehicle and go and find a magistrate or a judge to issue a warrant and then come back and find the vehicle. The courts have said the officer can execute the search immediately when they develop probable cause that there’s evidence of crime inside the vehicle.

6:17 B: The last few weeks we talked about DUI’s is the vehicle expectation is that involved in a DUI?

M: There’s always a lower expectation of privacy that folks have in their vehicle, but there are searches that happen when people are arrested for a DUI. And that usually happens when the person is taken into custody, and is secured and obviously their body is searched, and the officers do that to determine if they have any weapons, and sometimes  there’s something in the pocket that might be another illegal substance which might be another charge separate from a DUI charge, like a drug possession charge. And it used to be some years ago that officers could search the entire interior of the car if a person was arrested. The used to be an exception, or there still is an exception, called the search incident to arrest. And the reason why courts came up with that exception to the warrant requirement is because they were immediately concerned with the safety of the law enforcement officers. What the idea behind it is if a person is being taken into custody, the officer would be permitted to search the area within the person’s reach. This is to protect the officers and make sure there’s no weapons that the person might be able to get as he’s being taken into custody, or even some items of evidence that might be destroyed – along those lines. However, the court began to revisit that search incident to arrest requirement when it comes to vehicles because in most instances when a person is arrested for a DUI case, for instance, involving a vehicle, they’re taken out of their vehicle, they’re handcuffed out of their vehicle, and then they’re secured in the back of a police cruiser. That notion that the vehicle needs to be searched to prevent that person from getting a weapon or getting some item of evidence is kind of nonexistent. That person sitting in the back of a police cruiser and there’s no way that he’s going to be able to get his hands on anything inside of the car. So, the courts have revisited that search exception and said that you can’t search the interior of the car when a person is being arrested. Now there might be some exceptions. There might be some other reasons, but the simple catchall “I arrested them and now I can search the car and maybe find some evidence of other crimes” no longer exists.

8:52 B: ok, You and I’ve talked on the phone about a terry stop, correct? Can you explain a little bit on a terry stop – t e r r y stop, right?

M: Right, so a terry stop, we were talking about probable cause and probable cause is used in two different scenarios. There’s probable cause for a search and then there’s probable cause for an arrest. They’re both the same exact level. They require the same amount of facts and circumstances to be provided. A probable cause for a search is the officer provides information based on his observations in totality of the circumstances that would allow the court to believe that there is a fair probability that items of evidence would be found in a certain place. Probable cause for an arrest is the officer believes under the facts and circumstances of his involvement, of what he’s observed, he can point to reasonable facts to believe that  a crime has been committed and he would execute an arrest on this person. There’s a lower standard called reasonable suspicion. Reasonable suspicion comes up when an officer sees something that looks like there might be something criminal going on but he’s not quite sure. He doesn’t have enough facts to articulate, for instance actually observing people involved in criminal activity per say, but it might be a situation where a person is hanging out outside a business at a late hour. Maybe walking through like he’s casing the area. Maybe some unusual movements near the entrance area of a store. The officer at that point in time may not be able to articulate that this person is committing a burglary of a store. And he may not have enough evidence to say this person has on his person tools used to commit a burglary. He doesn’t have enough for that yet, but courts have said there might be enough for what’s called a reasonable suspicion. If the officer has reasonable suspicion, he can execute what’s called a terry stop, which is a short detainment so the officer can determine whether or not a crime has occurred, is occurring, or is about to occur. That give the officers a little bit of time to investigate whether or not there is something that’s about to happen. As far as police contact, there’s two types of contact folks have – really three types of contact, in the end when a person gets arrested. The first type is a consensual encounter, and that’s when an officer is walking down the street and waves to you and says hello, says, “hey I’d like to have a conversation with you. Would you like to have a conversation with me?” And that person sits and talks to the officer and maybe during that point in the conversation the officer asks some questions and the person without thinking it through finds himself implicating himself in a crime. That involvement between the officer and the person is consensual. There was no reasonable suspicion that a crime was going on, and the officer didn’t need any reasonable suspicion, he just encountered someone. The next level up is called a terry stop. And we get these definitions of a stop and these levels of encounter from the US Supreme Court case The Terry Case, which talks about the terry stop and why the officer would be allowed to detain a person for a short period of time to make this inquiry in this investigation. And after the terry stop, if the officer believes after communicating with this person and determines that there’s enough for an arrest or maybe determines there’s enough for an actual search, that next level is the probable cause. And that’s the probable cause for the search or the probable cause for the arrest of the person.

B: Alright, Mike you want to kind of give us just an overall recap?

M: Sure, so the question that comes up, “when is a search warrant required?” A search warrant is required anytime the officers are going to – I say officers, any agent of the government – is going to violate or implicate  a person’s reasonable expectation of privacy. Anytime that happens, there is going to be a requirement of probable cause and in most cases, there is going to be a requirement of a search warrant. There are some cases where courts have allowed there to be an exception to the warrant requirement, but those are actual specific exceptions. There’s a search incident to arrest exception, for example, where a person is being arrested and the officer can search the person or the area around the person within his reach. That does not require a search warrant. There is the vehicle exception to a search warrant where an officer, if he determines there’s probable cause that there’s evidence of a crime inside the vehicle, he can open the doors and search the vehicle. One specific example of that is if an officer pulls a person over for say speeding and when the person rolls down the window to talk to the officer and the officer detects the distinct odor of recently smoked marijuana, that officer has now been provided with probable cause to search the vehicle. He doesn’t need to see the marijuana. He doesn’t need to have anyone mention there’s marijuana in the car. If he smells it, he can execute a search of the vehicle to determine whether or not the evidence of the crime is still inside.

14:43 B: …Lead out…

Seek Help from a Criminal Defense Attorney When You’re Stopped for DUI

Realistically speaking, if you’ve had a few drinks before driving home, there’s no way that you won’t get stopped, arrested, and even convicted for drunk driving, no matter how conservatively you drive your vehicle. Once your vehicle is stopped because police officers had probable cause that you’ve been driving under the influence, what you say or do in front of them can either lessen your troubles, or make them worse. Read More →

Can Intoxication Be a Defense?

In criminal law, historically a defense based on intoxication, in which the defendant claims diminished liability for their actions due to the consumption of alcohol or drugs, depended upon on whether the intoxication was voluntary or involuntary.

Can Intoxication Be a Defense? DUI Drunk Driving Attorney TampaIn Florida, if a defendant voluntarily consumes alcohol or drugs, commits a criminal act, then he or she may not rely on the effects of the substance as a defense. This is pretty straightforward. Through a 1999 Florida statute, the defense of voluntary intoxication, to show that a defendant lacked the specific intent to commit a crime, or was insane at the time of offense, was abolished.

Additionally, the statute also abolished the legal defense of involuntary intoxication. Prior to 1999, involuntary intoxication was a legitimate defense to drunk driving if explanatory circumstances could show that the intoxication was by accident or mistake. The statute, however, contains an important exception. If the defendant was accidentally under the influence of a (valid) prescription medication because he or she did not anticipate the effects of the drug (taken in a lawful manner). If the defendant was arrested, he or she might be able to claim involuntary intoxication.

If you are charged now, or in the future, with a misdemeanor or felony DUI in the Tampa–St. Petersburg–Port Richey-Hernando area, prevailing with a defense of involuntary intoxication is doubtful. But, the knowledgeable attorneys at Bauer, Crider, and Parry, may have a better legal strategy specific to your case. When your freedom and property are at stake, you need an experienced DUI attorney who will scrutinize every aspect of the alleged crime, craft an effective and aggressive defense, and expertly defend your rights before the court. There is never a charge for initial consultations. Call today.

No Worries: A Good DUI Attorney Can Help Defend Against DUI Charges

It can be stressful to have a DUI charge hanging over your head in Tampa. There are several consequences that you wouldn’t want to experience like license suspension, fines, and others. Plus, having a DUI charge on your record can be bad for your future prospects; colleges and employers don’t look kindly on DUI charges, and these can stay on public record for a few years. A DUI attorney like one working with Bauer Crider & Parry can help a lot fighting the charges against you. Here are some strategies that can help: Read More →

Tampa DUI Podcast #6 Part 3

Arrested For A DUI in Tampa and Need a Lawyer

So that kind of leads us into the next area which is the breath test area. The breath test aspect of a DUI is something that comes after you’ve been arrested, and a person is asked to provide a sample into a breath test instrument. The breath test instrument is, they’ll usually be sitting right in front of the instrument around this time and the instrument can only be operated by breath test operators. People who are certified to actually use this instrument. Done at the jail. So it may not always be the officer who arrested you. Sometimes it is and sometimes it isn’t. And if the person refuses to submit to the breath test, the officer is going to read that person what’s called implied consent. Implied consent is a warning that basically has been provided by law to indicate the person that if they refuse to submit to a breath test, their refusal could result in a suspension of their driver’s license up to six months for the first time – I’m sorry, up to a year for the first time suspension and up to 18 months for a second refusal to submit to a breath test. So they have to read to this person that implied consent. If they don’t read them that implied consent, later on there’s things that we can do to get that person their license back if the officer takes it. The other thing that’s important to know, is if a person has been arrested before for a DUI, and they’ve refused a breath test previously on a previous arrest, a refusal to submit to a breath test is actually a crime. It’s actually something that you – it’s a first degree misdemeanor that you can actually spend time in jail for if you refuse to submit to a second breath test.

 

B: If you’ve had a previous DUI?

M: Correct, absolutely correct. And again, they have to be informed. That person would have to be informed that a refusal to submit to a test if they have a previous refusal is a crime. They have to be informed of that as well. And those are things that sometimes you get to pick up. I get to evaluate when the person is being asked to submit to a breath test. A lot of times there’s a video of that and I get to see the video. I get to see how the question was asked. I get to see if the officer asked everything he was supposed to ask. If the person agrees to submit to a breath test, they’re going to provide two samples. What it is is you blow into this – it doesn’t look like anything from the future, it looks like a little box sitting on  a table and it has this tube that has a detachable part that they can replace for other people to blow into it. And you blow into this tube and it’s designed to get what they call deep lung air so they want you to exhale into this instrument for a prolonged period of time until you blow all of the air out. You have to provide two breath samples. And the reason you have to provide two breath samples is they want to make sure the instrument doesn’t have a wildly different result for the two blows. If you provide two samples, the samples must be within .02 of each other. If they’re not within .02 of each other, that person has to provide an additional sample. Before you provide a breath test, the officer is supposed to be observing you for twenty minutes, at least. He’s supposed to observe you for twenty minutes to make sure you don’t do things like burp, regurgitate, hiccup – things that might cause some deep lung air or something like in the pit of your stomach to come up, because that may have an impact on the accuracy of the result. They don’t want mouth alcohol. Mouth alcohol could throw the instrument off. The instrument is supposed to be designed to detect for mouth alcohol, but they try to avoid any kind of problems by making sure you don’t have any of these moments where you might – for instance, if you burp. If you burp,  you’re releasing things from your stomach and it tends to go into your mouth and it’ll throw – it’ll provide a different sample, potentially than what your breath sample actually is.

B: When do they do that? Or how do they document the twenty minutes?

M: That’s interesting. That’s actually a subject of litigation sometimes for a defense attorney. The officer documents when the twenty minute observation period begins. The best time to do it, the most legitimate time to do it I would say is when the officer takes you back to the jail and he has you sitting kind of in front of him and he’s maybe going over some paper work with the arrest or something like that. That would be the best time, before you provide a sample. I have seen instances where officers try to consider the 20 minute observation period the period that the person is taken into custody and he’s sitting in the back of the patrol car as he’s driving to the jail. The reason why I think that might be a problem is I’m sure officers are observant and I’m sure that they are skilled in what they do, I don’t believe you can have a very accurate observation of a person to see whether they burp, hiccup, or anything unusual prior to a breath test if they are sitting in the back of a police cruiser and you’re sitting in the car driving it. I just don’t think that provides you a very accurate twenty minute observation. I have seen lately that they start to do it at the jail, but it used to be for a long time I’ve seen them starting the observation period when the person was taken into custody. And that has caused a lot of cases to where you try to get the breath test results suppressed. You explain to the court that there’s a certain procedure designed that these instruments that are finely tuned and the process has to work a certain way in order for us to have any faith in the outcome of these results. And if the officers don’t observe that twenty minute observation period, we ask the breath test to be suppressed and of course, if you suppress the breath test you might again inch further towards reasonable doubt.

B: So after the eight hour holding period, that’s when they’ll allow a phone call or allow you to leave?

M: They’ll allow a phone call if – it depends on where you are – if you’re actually in a jail cell it might be more difficult. When they arrest you depending – every agency’s a little different, but usually they’ll have you in kind of a holding area. And there’s usually one phone available so you can kind of make a call when you can get to it, but it just depends on when you can get to the phone. But when the person, if it’s a person’s first time DUI in areas like Clearwater, Pasco County, Hillsbourgh County, or Hernando County, you might see that person released on his own recognizance for a first time DUI or maybe a bond of $250. And at that time when they bond out they really need to start thinking about what they’re going to do about a lawyer. The reason why is because in the state of Florida you have ten days – when you get arrested for a DUI – whether you refuse a breath test or you submit to a breath test and you blow above a .08 the officer will take your license from you. And when he takes your license from you he issues you a DUI citation and that DUI citation is good for ten days to get your affairs in order. And after that ten days, your license is suspended. In the state of Florida, within that ten days, if you either sign up for DUI school and go to the DMV within those ten days and tell them that you’ll waive any formal review hearing, which is an administrative hearing of your suspension, the DMV will issue you a hardship license which will last you throughout the DUI case. Some people want to challenge the stop, and I think there are some circumstances where I think it’s a good idea to actually have a hearing at the DMV. In that instance, you wouldn’t waive the formal review hearing, but you’d say, “I want a formal review hearing. I want to have an administrative hearing on whether or not you can take my license.” The DMV taking your license is separate and apart from the criminal court suspending your license. Those are two different moments that happen at two different points in time. The DMV is administrative. They say if you want to drive on our highways, you have to take our breath test. If you don’t, we’ll consider that a violation and we’ll take your license. So you’re entitled to challenge that. I’ve had hearings at the DMV where we challenge whether or not the instrument was properly calibrated and maybe the level that they say is not a level that you can have any faith in. Or maybe they say the person was advised of implied consent but maybe he wasn’t. In those instances, the person, if you win the hearing would get their full license back. It would be unfettered, there wouldn’t be anything for work or business. It would be for whatever you want. You can drive. The downside to having a formal review hearing is that if you elect to have that hearing at the DMV, if you lose you have to go through what’s called a hard suspension period before you can get yourself a hardship license. So if there was a refusal for instance, and we went through  a formal review hearing and we tried to beat the suspension, but the facts were that we couldn’t, and the DMV affirmed the suspension, the DMV would then say that the person could not drive for 90 days. And after that 90 days, if that person signed up for DUI school, that person could get a hardship license. If it’s  a breath test above a .08 and you lost that formal review hearing, the DMV would say, “that person cannot drive for any purpose whatsoever for 30 days.”  So, in my experience, it’s always been the best idea to waive the hearing because you get very little. You could win the hearing – great, you have a license without restriction. But you could lose so much. I mean, there’s a lot of folks who if you told them they couldn’t drive for 90 days whatsoever, they wouldn’t know how to operate. They wouldn’t know how to get to work.

B: They’d lose their job, yeah, so the recommendation after you get out of jail is really pretty much immediately call an experienced criminal defense attorney like the partners there at Bauer, Crider, and Parry.

M: Absolutely.

B: Then you can get that ten day process started.

M:Correct, cause we can get you in contact with the DUI school that you need to get in contact with to sign up for and then we can get you in contact with where you need to go to get your license. And listen, doing DUI school isn’t saying, “I’m guilty of the DUI.” That’s unfortunately a requirement to get your license that the state of Florida has. I want everyone to know when they come in to hire a lawyer for a DUI, it is not something where we say,  “how do we just roll over and get this thing done so that it doesn’t hurt?” We want to fight these things and we always start off with an idea of “how do we beat this?” Obviously, as you look at the case, and you fight with the case, and you get experience with looking at it, the lawyer can get that person advice on what the best plan of action is. But it’s always gonna be in the very beginning “how do we get this thing beat?”

B: So, at Bauer, Crider & Parry somebody calls your firm – they’ve been arrested for a DUI – do they speak to a paralegal or do they actually talk to one of the attorneys?

M:It’s been my – obviously the paralegal is going to answer the phone – but it’s been my experience that folks who go through this process and have been arrested are scared. Their whole life is kind of spinning around a little bit and they want to talk to somebody who can give them some comfort in knowing what there is to expect. So because of that, we have everyone talk to a lawyer. Sometimes they have to leave a message and the lawyer calls them back. But when you’re talking about your case and giving information, you’re talking to a lawyer.

B: Great. And name the lawyers at your firm real quick for me.

M:We have Robert Bauer. We have Ronnie Crider. We have Curtis Crider, David Parry, and yours truly, Michael Kenny.

B: Mike, anything else?

M: No sir.

Tampa Drunk Driving Criminal Defense Lawyers Podcast #5 Part 2

Tampa Drunk Driving Criminal Defense Lawyers

B: So let’s go down the no path and then let’s go down the yes path. So if you are impaired and you say no what’s the next steps that the officer would make?

M: A lot of times the officer will try to convince you that doing the field exercises is in your best interest. The officer will typically say, “well, listen, that’s within your right to say no to the field sobriety exercises but I want you to understand that if you say no I’ll have to base my decision on everything that I’ve seen so far rather than give you an opportunity to allay my concerns that you’re driving under the influence.” It’s almost like, “I’m gonna give you the opportunity to prove that you’re not DUI”, which by the way is not even how our system works. But what the officer is saying is, “I pulled you over. I’ve got some suspicion that you’re impaired and you’re going to refuse this test so I’m taking you to jail.” That’s basically what he’s saying.

 

B: OK and so they hand cuff you and put you in the back of the car, read you your rights, correct?

M: Yes and the miranda warnings come at different times but you get handcuffed and taken back to the jail. At that point, when you’re handcuffed, there’s another step that’s the breath test step. The officer would ask if you’d be willing to submit to a breath test because even though you refused the field sobriety, believe it or not there are some folks who refuse the field sobriety and say yes to the breath test and there are some folks that say no to the breath test and yes to the field sobriety. I’m not ever sure I understand why it’s either no or yes I don’t know why you’d break it up but that would be a separate set and there would be questions that the officers going to ask you questions and read you your miranda warnings and document where you’re coming from and how much you had to eat that day, what you had to drink if you had anything to drink at all, if you feel like you’re under the influence of an alcoholic beverage. Those are kind of the standard DUI questions.

16:58 B: At the point that they get arrested, and they are taken back to the jail, when do you recommend that they contact you?

M: It would be great to be contacted the moment it happens, but there’s obviously some impediments to that. When they handcuff the person and put him in the back of the car, he’s not calling anybody. And he probably is going to go back to the jail and he’ll be sort of in a holding area, in the state of Florida, they hold folks for 8 hrs at a minimum before they get any type of bond. And they’re usually sitting in a holding area and they don’t, you know maybe they get to make a phone call, they probably call their family first to let them know where they are. I would say the following day would probably be the best time to call. When you get out of jail and you’ve kind of had some time to rest because you probably had a miserable night.  You’ve had some time to rest and get some clear headedness about you. Start thinking about what you’re gonna do about this case.

B: OK so you say if you say no to the field sobriety test, more than likely if you are impaired, they’re going to take you in and then they’re going to ask you if you’d take a…if you want to submit to a breath test, and that’s their choice whether they say yes or no.

M: It is, the driver has the choice. They can’t force it on you. In the state of Florida, they have a thing called an implied consent, meaning if you drive on the highways of the state, you’re implied to have consented to all of it. The field sobriety test is required by law, so if you refuse the breath test (the breath test only) the DMV, the officer will take your license for a year and the DMV will basically suspend your license for one year. Then there’s ways around that and we’ll get to that. That’s kind of after the arrest portion.

18:50 M: So, the refusal of the breath test is completely up to the person getting arrested, but again, there are some consequences that that person would need to be aware of and the officers inform them to a degree about those consequences. But, getting back to assuming the person agrees to submit to the field sobriety exercises, in every circumstance I’ve ever seen in a DUI case, it always starts off with the first one being HGN. HGN is a standardized field sobriety exercise called horizontal gaze nystagmus. That’s something that folks may have seen, whether they watched the tv show Cops, or they’ve seen any kind of show, there’s this test where the officer is standing in front of the suspect and he’s holding up either a pen or a lighted pen. And he kind of stands right in front of the person and moves the pen in front of the individual’s face. And he moves it from left to right. The person has to look directly at the pen, not move his or her head, and just kind of move his eyes to follow the pen. That test is actually almost a medical test. It’s designed to detect the involuntary shakes that your eyes get. I’m going to describe it as shakes. These involuntary movements that your eyes get when a person consumes alcohol. It’s really actually a very good and accurate test if it’s performed appropriately. My concern is some of these officers who are performing the test really don’t know how to perform the test and they really don’t know what it is they’re looking for specifically. You know, you get kind of this crash course in DUI detection I’m sure in the academy and maybe some more when you’re working but I think that this test which is designed for medical professionals may not always be as well performed when it’s performed by law enforcement officers.

B: And if it’s late at night, it’s dark, they’re more than likely putting a flashlight in their eyes as well.

M: Yeah, usually the stimulus, they call it, the pen or whatever it is usually is going to be one of those lighted pens. What’ll happen is the officer is going to determine whether he sees what they call the nystagmus. And if he sees it, he’s gonna have a pretty good indication there that he’s got something. The unique thing about the HGN test is it’s really not something that a juror can see. You know, if you’re talking about trying a case, what you see is a cop standing in front of a suspect and you see him moving a pen from side to side but you really don’t see anything else, because the camera is never really so close to  person’s eyeballs where you see these shakes. So, although it may have and I think it’s probably one of the more reliable exercises that they do, it may be very difficult for the lay person to even appreciate the significance of it. And it may, quite frankly, have an impact on whether or not anyone even believes it’s enough to be found guilty of driving under the influence. So the actual definition of a nystagmus is “an involuntary jerking of the eyeballs” so you’re not going to be able to see that on video as you’re sitting in the jury box. And the other unique thing about it in the state of Florida, at least in this district, in Tampa, Pinellas, and Pasco Counties it’s really only admissible if the officer who performed the test is a drug recognition expert. That means, that officer has special training to detect drug impairment and other things and drug impairment including alcohol, to be able to talk about what the test actually shows, what it represents. Some officers are qualified because they can explain the test and explain what it’s for, but there are so many officers who do this test who really don’t know what it is that it’s actually doing and they can’t even testify about it in a court of law.

B: So as an experience criminal defense attorney, that’s one of the things that you look at is who demonstrated that test, and are they certified?

M: Absolutely, because the bottom line is if they’re going to put you through let’s say 3 tests, I can start to knock tests out and keep that from the jury, and I knock it out because I think it might be misleading. I think you’re inching your way to reasonable doubt.

B: Ok so that’s the first test normally.

M: Right and the walk and turn is the next test. The walk and turn is a test where the suspect – it’s called a divided attention task – so it asks the suspect to divide between mental tasks and physical tasks. The mental tasks include comprehension of verbal instructions, processing of information, and memory recall. Memory recall because the officer basically gives you these instructions one time, shows you how the test is performed, and then tells you “go ahead and perform the test”. So you can imagine, a person who gets pulled over and is nervous as heck because they just got pulled over by a law enforcement officer, nervous that he’s asked to run through a battery of tests, then shown a test for one time and one time only and then asked do it. This person knows every step he makes is going to be crucial, but I think nerves sometimes play an impact on abilities or a person’s ability to recall the instructions. Because I see that a lot.  I see them not recalling exactly what the officer told them. Because your mind is probably spinning at that precise moment.

B: Yeah, you’re scared. You’re afraid you might be going to jail, so it’s

M: Yeah, it can be nerve-wracking for anybody. Anybody, whether you’ve had nothing to drink or a bunch to drink. So the walk and turn essentially is the officer finds an area on the road that he believes is as level as can be and you walk 9 steps, heal to toe, in one direction and then the officer would ask you to pivot and walk 9 steps heal to toe back. And there’s two major points about this walk and turn test that causes some problems for some folks doing it. At the very beginning of the test, the officer is going to ask a person to take his right foot and put it in front of his left foot and hold that position. The officer is going to have that person have his heal to toe position and kind of hold that position while the officer is explaining the instructions. During that time is where you see a lot of difficulty with folks standing up. It’s an unusual position to be standing in, quite frankly, 25:48it’s not something that you would normally do. In a resting position you wouldn’t stand heal to toe like that and you find people have a hard time keeping that position.  And then after the officer explains the instructions and the person is asked to walk 9 steps heal to toe, although it’s called a heal to toe test, the instruction does allow a little bit of space between your steps because you don’t want to be stepping on your feet basically and you have to account for some bigger shoes sometimes. And then you can pivot, and the pivot is – he’ll kind of explain what the pivot looks like –  and you’ll pivot and walk 9 steps back. And the officer is looking for a lot things; your ability to remember the instructions, whether or not you walk off the line, whether or not you walk heal to toe, whether or not you sway or fall or use your arms for balance. So it’s a whole number of things and it’s aa difficult test for someone who’s quite frankly been impaired, let alone, I’ll be honest, it’s a difficult test probably for someone who’s never done it whether you’ve had nothing to drink. After that, and usually the final test, is the one leg stand. The one leg stand is where the person is told to hold one leg off the ground and keep their hands at their sides and keep the one leg off the ground for 30 seconds. They can pick whichever leg they want to use. The officer obviously in that point is detecting whether or not they follow instructions, whether or not they sway, whether or not they put their leg down, how many times they put their leg down. And again, at that point, if the officer believes he has seen enough to believe that the person is under the influence, he would take the person into custody and at that point transport him back to the jail.

B: 30 seconds, that’s actually kind of even physically hard too for some people, correct?

M: Right, and that’s the amazing thing about these field sobriety exercises. The exercises are designed, obviously to catch impairment in folks, but they’re also difficult tasks for some folks who have some issues. People who are overweight tend to have a much harder time performing that one leg stand that you’re talking about. People who are elderly, over a certain age, have a much more difficult time performing those exercises, because their balance tends to be impaired a little bit. As you age, your balance gets a little bit different. People who are injured, you know, someone who has a leg injury or maybe an old hip injury or maybe a back injury and standing on one leg may cause some pain, all of those folks are gonna be folks who are gonna perform differently than say this perfect athlete. And the actual field sobriety test asks the officer to take those things into account, before anyone takes  a test, whether it be the HGN or anything, the officer asks the person whether or not they are sick or injured? What injuries they have? They try to document it. But it really doesn’t take into account, there’s a certain weight limit. There’s a certain, I don’t want to say weight limit, but once you’re I believe it’s 50 pounds over, I gotta correct that, but once you’re overweight by a certain amount, you’re gonna have a significant impact on your ability to perform these tests properly. And the officers don’t always take that into account, to be quite honest with you, and I’m sure a lot of them don’t even know that there’s kind of a weight standard. I’m sure they don’t even know there’s an age standard for what they’re supposed to look for when people are going through these tests.

29:18 B: So the standardized tests, those are the three main ones that the state of Florida does, correct? Is there any other ones that they do or is it just those three?

M: There are two more. There’s the Romberg Alphabet Test, which is where a person is asked to recite the alphabet without singing it. Without rhyming it or trying to do anything like that. They just say A B C D. And then the other test is the finger to nose test, which you may have seen before on any kind of television series, or television show. Where the person is asked to point their arm out and the officer will tell them which arm to place on the tip of their nose, and they’re graded. Those two are used less frequently, only because the officer a lot of times feels like his determination can be made with the first three tests that are performed.

B: But they could do all five?

M: The person could be asked to do all five, yes. So, at this point, let’s assume that someone’s gone through these tests, the officer determines that there’s probable cause to arrest the individual for driving under the influence. At this point, the person is placed in the handcuffs and it’s only at that point where the officer requests them to submit to a breath test. This is the most unknown thing about DUI’s in Florida is that you have to be arrested first before the officer is allowed to ask you to submit to a breath test. And the reason why that’s, I think the reason why that’s interesting is because if this person gets arrested and gets taken back to the jail and submits a breath test and the breath test is 000 – meaning there’s no alcohol in this person’s system whatsoever, that person is still gonna spend the night in jail, and still gonna have a DUI charge, because he’s been arrested. Once the arrest happens, that’s it. There isn’t anything you can do to get yourself out of jail from that point. So I almost wonder the point in providing samples, because you’re done. You’re arrested, you’re going to jail, and unless someone feels that they are certain that if they blew into that instrument it would show that they weren’t drinking and they could use that later to help in a trial. But it really is that once you’re arrested, you’re spending the night in jail.

B: So sometimes I would think, can you skip all these tests and give me the breathalyzer, they can’t do that because you have to be arrested first.

M: Yes, so you could say, “I want to skip the field sobriety exercise,” but that means that you’re gonna get cuffed, go to jail, and provide a sample at the jail.

B: So you’re basically refusing the field sobriety test and sending yourself to be arrested.

M:Right and there isn’t any providing a breath test to get out of being arrested. That doesn’t exist in Florida. So the bottom line is, if you find yourself sitting in front of an intoxilyzer, you are arrested and after you provide that sample, you are going to spend the night in jail. No matter what the sample is.

 

Contact the Bauer, Crider and Parry lawyers today.

Tampa DUI Attorneys Podcast #4 Part 1

Tampa DUI Attorneys

Brad: You are listening to the Bauer, Crider, Parry Podcast. Bauer, Crider, Parry is criminal defense attorneys in Tampa, FL. Bauer, Crider and Parry are effective Tampa DUI Attorneys and e are speaking to Mike Kenny. Good morning, Mike.

Mike: Morning, how are you?

B: I’m doing well. Let’s kind of jump in this morning.  We are going to be talking about just the DUI process, correct?

M: Yes.

B: Well, tell us a little bit about some things that we need to know about DUI’s.

M: Well, sure, it’s actually there’s separate steps along the way on in a DUI investigation. You have the stop part of an investigation where an officer actually has contact with the person driving a car. And there’s a lot of things that happen there during the stop that are very important.  And definitely very important from a criminal defense perspective. And after you have the stop, you have this investigation phase where the officer makes contact with the driver of the vehicle and maybe the officer feels that he picks up some clues of impairment.  And then they switch over to the actual performance of field sobriety exercises if the person agrees, and finally there’s an arrest, and after the arrest, believe it or not is when the breath test occurs. So it’s a very interesting process. I think a lot of people don’t know about it. As much as they may believe that they know about it, there’s a lot of things that have to happen in a certain matter. So, the stop phase, the first phase, the most important phase, when it comes to that officer having contact with you is the reason why the officer pulls the driver over. There’s really a couple of reasons why someone would get pulled over in a DUI investigation. The first one could be a completely benign reason; speeding, running a stop sign, something that isn’t necessarily related to a DUI in and of itself.  Plenty of folks, I’m sure everyone can raise their hands, get speeding tickets and it has nothing to do with drinking. So those are probable cause type stops.  Where the officer has actually determined there’s probable cause to pull a person over because they’ve committed a civil traffic violation. Then there’s another set of stops, and these are reasonable suspicion stops. So it’s not probable cause that a crime has been committed but it’s reasonable suspicion to the officer that there may be something wrong with the driver. Either the driver is sick, injured, or impaired or that there may be something wrong with the vehicle. So the reasonable suspicion stops are the ones that I get kind of more interested in when a client comes in and starts talking about the basis for the stop. Cause quite frankly, there’s a certain set of things that an officer has to demonstrate in order to seize you. In order to stop your freedom of movement. And if the officer is unable to demonstrate that, that could make the entire case, essentially the entire case be suppressed, all the evidence after. So, in a reasonable suspicion stop, an officer might testify or might document in his police report rather, that he observed a car weaving within its lane a few times and based upon that weaving he made a determination to activate his overhead lights and initiate a traffic stop. Now, in the area that I practice, which is Clearwater, and Pasco Counties and Hillsborough Counties, that area is controlled by the second district court of appeal. The second district court of appeal is an appellant court that has issued a lot of rulings on what an officer needs to observe in order to have enough of a basis to initiate a traffic stop in those types of situations. In those situations, the officer would have to testify that he observed the driving for a period of time, and he would have to testify that there was something about that driving that caused this officer, based upon his training and experience, to believe for instance that the person was impaired. A lot of times in police reports that I get that I see the officers say that the vehicle weaved within its lane. Sometimes they even say how many times, often times they don’t. My experience has been that a slight weave within your lane certainly is not enough in and of itself for an officer to pull you over. And that’s important, because if an officer pulls you over for something that there certainly is not enough evidence established to show that he had reasonable suspicion, everything that happens after that stop, whether or not the person does miserably on field sobriety exercises, or has a very high breath test, all of that evidence gets suppressed. And the kind of the rule of thumb is that it’s got to be longer than one second, longer than that one weave. And you ask the question why? Why does it have to be more than one weave? And the rule is simple. Nobody drives their car on the road or highways perfectly straight. Everybody has some movement within that lane. The statute is almost designed to take into account that people don’t drive perfectly straight.

5:17 B: Is there a certain specific period of time that the second district

M: Yeah, well the courts are really careful not to give a bright line rule. They’re really careful not to say, “If you hit 8 minutes of following someone and you see this many weaves, it’s enough.” So the courts really like to talk about the totality of the circumstances, and that’s one of those things you have to have a gut feeling when you look at it as a defense attorney when you read it and you also have to do some research and find similar cases and similar situations. So they don’t talk about time so much, but obviously the longer is always better. When I say longer is better, longer is better from a law enforcement standard scenario to have enough to provide to the court as a basis to pull somebody over. One weave within a very short period of time, if you’re talking seconds, I don’t think is going to be enough. Obviously it depends upon your judge and who’s hearing the evidence too. But what you typically see in cases that have been upheld is that the officer would pace that person for a period of time, whether it be  a half a mile or longer, and be able to document certain things that would cause him concern that there’s something wrong with the driver. It doesn’t necessarily mean that he’s got to be under the influence but there’s got to be something about this driving is unusual enough to cause a concern for the safety of the driver or other people on the road. And again, one weave within the lane quite won’t do it. Someone, you know, adjusts the radio for a second, you might have a movement. Someone opens the glove compartment for whatever reason, you might have a shift in the vehicle and courts take that into account. There’s an actual statute called failure to maintain a single lane which is a civil traffic infraction. And the way these cases came to be in evaluating this reasonable suspicion to pull a person over is because a failure to maintain a single lane statute which often is the citation given to a driver who is arrested for a DUI is only applicable, you can only be issued that citation if the driving pattern of the person affects other traffic. So that is to say, if it’s three o’clock in the morning and a person tends to be swerving and weaving all over the road, but there’s no other traffic impacted by that, that person cannot be issued a civil infraction.  And why does that make a difference? Well, it makes a difference because if an officer pulls a person over for weaving on a road and swerving on a road and there’s no other traffic impacted by it, the officer would not be able to testify that he pulled a person over for probable cause and issued a citation for a traffic violation, because he wouldn’t be able to issue him one. He’d have to go under that second set of circumstances of the reasonable suspicion for a stop and that case is more involved. The officer has to provide facts that would cause a court to believe that there was reasonable suspicion that there was something about the operation of the vehicle that caused the officer to have a concern that he was sick, injured, impaired, or under the influence. So those are very important factors. When you talk to a defense attorney about a DUI, you come into our office in Clearwater and say, “Hey, listen, I just got arrested for a DUI.” And one of the first questions I’m gonna ask is. “Why’d you get pulled over?” because it really has an impact on how the case gets evaluated from the beginning, from the very first moment you have contact with law enforcement, you want your lawyer to know all about that and be able to investigate every avenue he can to defend you and to help.

B: And is that issued in the ticket or is that just a verbal between the person and the police officer that pulled him over?

M: Where we practice, the officers when they arrest people or a DUI, they fill out what’s called a probable cause affidavit. And a probable cause affidavit is what the officer fills out for the judge to determine if it’s probable cause that a crime was committed to hold them in custody or issue a bond of some type. So 99% of the time those probable cause affidavits provide a short basis for the stop. They usually say, we were patrolling the area on Drew Street and the affiant had the occasion to observe a vehicle swerving in its lane. Your affiant followed the vehicle for this far and then conducted a traffic stop. It would be something like that and then they get into the facts of why the individual may have been arrested for
9:54 B: Okay, and once they get stopped, you mentioned there’s clues of impairment.

M: Right, so once you get stopped, once the red and blue lights go on, the officer gets to obviously get out of his vehicle and make contact with you at your vehicle. And when that happens, what’s normally the first thing that’s going to happen is the driver of the vehicle is going to roll his window down. And when the driver rolls his window down, what I see in the overwhelming majority of cases is the officer would testify or indicate that he detected the odor of an alcoholic beverage emanating from the vehicle or emanating from the person. So that’s the first clue. Drinking, in and of itself, certainly isn’t enough. But when you begin to combine drinking with some other things the officer will have some indications where he believes it’s necessary to have the driver perform field sobriety exercises. And the typical things that officers observe are the color of the face, you know flushed face, I would say in a majority cases is what you’d find. Blood shot watery eyes is something that you find very often on the DUI investigations. And slurred speech so when you combine all of those things, if the officer stops his car, gets out, walks over to the driver and then the officer observes any of those things or any number of those things, you can rest assure the officer is going to start asking questions. Like, “Where are you coming from? Have you been drinking tonight?” and at that point the officer will ask the driver of the vehicle to get out of the vehicle and then he’ll begin the actual field sobriety exercise portion of the investigation. So, in that particular moment, when the officer makes contact with the driver and sees that there are cues of impairment, at that moment the driver is going to be asked a question. He’s going to be asked whether or not he’d be willing to submit to field sobriety exercises. In the Tampa Bay area where we practice, they’re called field sobriety exercises, some people might call them tests, the second district court of appeals has had an issue with the word tests because tests mean there’s a pass or fail aspect to it and that’s something that a jury should determine. Sp in our area, they call them exercises. And there’s actually in the state of Florida many years ago, I think it was back in 1985, there was a determination that there’d been a lot of DUI incidents and they wanted to develop a standardized set of tests that people under suspicion of DUI would go through and they wanted them to be standardized because they wanted to put these tests through kind of a process to where you can realize that they’re reliable. Are they able to determine impairment?  A lot of people have things like counting backwards and the alphabet backwards which you may have seen in certain tv shows and that’s not really standardized tests and that’s really not what’s used. These tests are designed to be consistent and have consistent results. So there’s several tests but they usually go in the same exact order and they usually only make you do three. The officer has enough after doing those three. Sometimes he might have a couple of others done.

13:15 B: Before we jump into that, Mike, when you’re asked to submit to a test, what do you as an attorney recommend?

M: That’s a good question. Well, I can tell you this, if you answer, “no” the likelihood is that you’re going to get arrested right then and there and go to jail. And if you answer “yes” and you feel like you’re impaired the answer is you’re gonna get arrested and you’re gonna to go to jail. So I’m not sure that your answer is going to change your ride that night. No matter what your answer is you’re probably going to find yourself sitting in the back of a police car. So here’s the bigger question: “What do you want to be thinking about in the long run?” And if your concern is in the long run you want to be thinking about what type of evidence the prosecutor has to convict you of a DUI then you might not want to be providing a whole bunch of evidence. And when I say that, if you feel like you might be impaired it might not be a good idea to perform those field sobriety exercises, because the likelihood is they’re going to be captured on camera and the likelihood is if you think you’re going to do poorly, you probably are going to do poorly. And that will make the case that much easier for the prosecution. It’s very easy to use the law. I can use the law and if the stop is bad the stop is bad and there’s cases that kind of support that. But when you have a trial and say that the stop is good, you have a trial and you can be an amazing trial lawyer, and I think that this firm has some of the best trial lawyers in the area, but it’s really hard to get past a video where someone is falling down. So that’s something to consider.