Should Search Warrants Be Able to Access Phones?


These days cell phones are our lifelines. Typically a cell phone is the last thing we see before we go to bed and it’s the first thing we see when we wake up. Phones keep our schedules in line, our conversations private and our social media buzzing. So with so much information kept on phones, should search warrants be able to access phones?

The Polk County Sherriff, Grady Judd, thinks search warrants should grant him access to any information on a cell phone. He feels so strongly about this he accused the board of directors and the CEO of Apple of being “coconspirators” with criminals. Judd went on to claim Apple officials are guilty of “encouraging terrorism, murder and rapist by sexual predators against children.”

Sherriff Judd was prompted to make these claims due to a case in which a suspect allegedly has child pornography on his phone. Judd is unable to get a conviction because he cannot search the phone even though he has a search warrant.  

Under current laws, if a phone has a locked home screen, typically using a four digit passcode or fingerprint, law enforcement have no means of retrieving data on the phone. According to Apple’s privacy policy, if a phone is using IOS 8.0 or newer, even they do not know what lies beyond that four digit code. Apple has yet to directly respond to the Sherriff’s accusations.

The law offices of Bauer, Crider & Parry are experts at interpreting Florida search warrant laws. If you have questions about search warrants call 727.408.6219 for a free consultation.


Pinellas County Sexual Battery Defense Lawyer

Pinellas County Sexual Battery Defense Lawyer

Sex Crimes Kids

Bauer Crider & Parry Podcast

Brad: Alright, you are listening to the Podcast. We are speaking to St Petersburg Sexual Battery Defense Lawyer Mike Kenny at the Bauer Crider & Parry Law Firm. Mike, how are you?

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

B: I’m doing well. Today we’re going to be talking about sex crimes versus kids but I want to just kind of throw out there I know you guys have multiple offices. You kind of cover a wide area there in the Tampa, the greater Tampa area. Could you mention kind of, well first of all, let’s talk about the offices that you have and then some of the other areas that you target.

M: Well, we have an office in Hillsborough County, and that office is actually right across the street from the courthouse on Twiggs Street in Tampa. So that office is kind of designed for our Tampa clients and our Tampa type cases which covers anything from Plant City, Wesley Chapel, New Tampa, obviously the entire Tampa area. We have an office in Clearwater, and that’s kind of more of our Pinellas County office and obviously it’s gonna cover all of your cases throughout Pinellas County which will be Clearwater, Clearwater Beach, St Petersburg, St Pete Beach, Largo, Tarpon Springs, you’ve got Pinellas Park, Kenneth City, obviously Pinellas County is a large area and we definitely cover a lot of cases throughout the county there. We have two offices in Pasco County. We have one in Port Richey and one in Trinity Florida. Obviously our Pasco County reach covers New Port Richey, Dade City, Port Richey, Holiday. The Port Richey office also covers Brooksville cases which I tend to handle on a repeat basis and the main area in Hernando County that I cover is going to be Brooksville and obviously then we have our Trinity office. Our Trinity office also covers, because we do a lot of work in Pasco County, covers the same places in Pasco County, New Port Richey, Port Richey, Holiday, Dade City, Hudson.

B: Great. So you guys are pretty much all over the place in the Tampa area with four different offices to choose from.

M: Sure.

B: Well, let’s – Mike, let’s go ahead and jump in. Let’s talk a little bit about sex crimes versus kids or versus a child and I’ll just kind of if you can kind of just give us an overview of that.

M: Alright, well, so there’s two types of sex crimes, or two categories of sex crimes involving children. And there’s actually, now that I think about it there might actually be even three if you want to kind of divide it up even further. But the sex crimes are initially the battery – whether or not there’s a sexual battery. Battery, as I talked about in a previous podcast talks about essentially penetration. That’s what you’re looking for. Sexual battery is defined as oral, anal, or vaginal penetration by or union with the sexual organ of another or the anal or vaginal penetration of another by any other object. So that’s kind of what you look for if you’re talking about was it a sexual battery or not? And there’s other types of crimes and crimes that don’t involve penetration but involve touching – that’s where you get the term molestation.

3:46 (skipped per Brad’s request)

3:54 But those types of crimes are crimes that don’t involve any type of sexual battery, whether it be penetration of the mouth with a sexual organ or the penis or vagina. So in that set of circumstances, you’ve got that category and then the next category is the age. Obviously, as we talked about before, the age of consent for sexual activity in Florida, generally speaking, is 16 years old. So the key age that we look for in a sexual battery case is the victim has to be 15 or younger. So if the victim is under the age of 15, that becomes a crime if there is either a molestation or there is a penetration, sexual battery type situation. So if you have a scenario where there has been alleged sexual activity like actual intercourse between someone over the age of 15 – and that could be 16, 17, 18, whatever, you don’t even have to be an adult, but someone over the age of 15 having sexual intercourse with a 15 year old, that is a lewd or lascivious battery. And that’s a specific crime that addresses sex of a person younger than 16 – basically 15 and older than 12 – it’s a lewd or lascivious battery. If a person, this is the next category that I was going to talk to you about – this third unique category. If a person who is a victim of a sexual battery is under the age of 12, that in Florida is defined as a Capital Sexual Battery. Years and years and years ago that crime was punishable by death. Now it is obviously punishable by life in prison without parole. So if a person is convicted of a sexual battery, there is no other option for that person other than a life in prison type sentence. So the age matters very much because it completely changes the term of years a person might be facing and the severity of sentence the person might be facing. If a person’s under 12 and it’s sexual intercourse, it’s gonna be a life imprisonment sentence if they get convicted. If a person’s under 15, it’s gonna be much less significant, it’s not even gonna be a life sentence at all. The next question or category of concern is the molestation type charges. A lewd or lascivious molestation can happen above or under the clothing so situations where a person is fondled over their shirt, for instance, that can qualify as a lewd or lascivious molestation.

B: Mike, can I jump in real quick there. That is similar to – you said that you don’t necessarily have indecent exposure there in Florida, but that’s kind of what that’s referring to, is that correct?

M: No, that’s another unique, it’s not really a crime where there’s contact with another person, but in Florida, obviously everyone can imagine there’s crimes that involve people exposing themselves to other folks. In Florida that’s called a lewd or lascivious exhibition. A lewd or lascivious exhibition, the key phrase there is lewd or lascivious, that the person is exposing him or herself in a lewd or lascivious manner, which means of a sexually oriented nature. For instance, give you an idea, a guy who’s driving on a long trip and had a lot to drink beverage wise and needs to get out of the car and use the facilities of the forest, that person is not committing a lewd or lascivious exhibition if he gets caught by police urinating on the side of the road. Now, there is another crime for that. That’s generally speaking a disorderly conduct type crime, but there’s also a crime called exposure of sexual organs. That’s a misdemeanor and it’s not a sex related crime per say, you don’t have a sexual registration requirement or anything like that, but exposure of sexual organs comes up when a person’s (obviously sexual organs being a penis or a vagina) are exposed and there’s nothing about the act in and of itself that shows it’s of a sexually motivated manner. There isn’t any talk about sex, there isn’t any fondling. There isn’t anything that would indicate other than the person is exposed. So that’s a misdemeanor. But if a person exposes himself and exposes himself to a person under the age of 16, that’s when you start to get into the lewd or lascivious exhibition problem. That’s when you get to the felony aspect of it. It has to be both an exposure and it has to be an exposure in front of a person under the age of 16, you need a witness to it who is under the age of 16, and it has to be again, of a lewd or lascivious manner. So it’s got to be something that is sexually oriented and I’m sure we don’t need to go over every single scenario where that could be, but some unique cases have come up where there have been cases that have been litigated and actually gone up to appellate courts where a person fought a lewd or lascivious exhibition conviction because he or she answered the door and he happened to be naked from the waist down and there happened to be some children who were at the door. Some discussion about those cases talked about how he might have been in his own home but he clearly knew that there was children coming to the door to sell something. Sell raffle tickets, girl scout cookies, and even talked about whether or not there was – the sexual organ itself was flaccid or not. So there’s a lot of things that the court looks to to describe the intentional exposure of a sexual organ designed to be in a lewd and lascivious manner.

B: Alright, one thing we didn’t talk about is child pornography, which is obviously a sex crime versus a kid, right? Might be a whole another podcast, but is there anything that you want to touch on that?

M: Well, the and we kind of had a podcast before talking about computer crimes, but the issue of possession of child pornography that the basic idea behind it is the person either has an image either on paper – tangible like he can hold it – or he or she has it in his computer and they’re images of children. And they’re not photographs of baby pictures, right? I’m sure everybody has a baby picture somewhere of his or her own child. But these are photographs that have the children in a sexually provocative manner. It’s not just a naked child, but it’s a child in a sexually oriented fashion. A lot of these images that get caught and punished are horrible images of children involved in sexual activity with other children or even adults. So it’s not something where someone can get in trouble just for having a naked picture, because that’s not necessarily pornography. Pornography has to have a sexual element attached to it. The sex crimes that we were talking about where we have the under 12 which is a life felony if it’s a sexual battery. If it’s not a sexual battery but a molestation, which is a hand touching the chest or the buttocks or the sexual organ of the other person, those are molestation type cases. And if the person is under 12 in that case, but it’s not a sexual battery, it’s still a life type felony. When I say a life type felony, those cases are punishable by 25 years to life. So the idea here, is the legislature is very hard on sex crimes to begin with and the laws are very strict, but they are even more severe when the children become of such a young age that we’re talking 10 or 11 years old – anything under 12. As a prosecutor, I prosecuted tons of capital sexual battery cases. I went to trial on several and those folks who got convicted are still sitting in prison and they’re going to spend the rest of their lives in prison. So the penalty is severe. That’s why, if you find yourself accused of something this horrific, the first thing you’re gonna want to do is make sure you find yourself a lawyer who you trust and a lawyer who you believe has got the ability to defend you. Because the cost is great.

B: Alright, anything else on that Mike?

M: No Sir, I think that covers it.

B: You’ve been listening to the Podcast. We’ve been speaking to St Petersburg Criminal Defense Attorney Mike Kenny at the Bauer Crider & Parry Law Firm. We will see you on the next podcast.

Check out this episode!

Florida Rape Charges

Pinellas County Rape Defense Attorney

Rape Charges

Bauer Crider & Parry Podcast

Brad: Alright, you are listening to the podcast. We are speaking to Clearwater Rape Defense Attorney, Mike Kenny. Mike, how are you?

Mike: I’m doing well, how are you?

B: Good good. Today, we’re going to be talking about rape charges. I kind of set you up for that one so let’s talk about

M: Yeah, I just want to correct you real quick. In the State of Florida, we don’t have a crime called rape. Now that isn’t to say that rape as people understand it isn’t prosecuted, it’s just that we call it in the State of Florida, sexual battery. Rape is a term that doesn’t exist anywhere really in the Statute. And a sexual battery is a crime that’s defined as it basically talks about non-consensual sex. Sexual battery talks about the either penetration of the sexual organ by either a penis, union with a sexual organ with a mouth to either the vagina or the penis, penetration of the anus – it gets pretty specific because sexual battery is actually involves a sexual organ. It can’t be kissing. It can’t be groping. But it’s actually penetration or mouth in union with the sexual organ.

B: One thing you’d mentioned in the last podcast – the overview – was just the difference in if somebody was injured by sexual battery in the sentencing, correct?

M: Yes, it’s a in that particular section of the Sexual Battery Statute it says that a person 18 years of age or older who commits a sexual battery upon a person 12 years of age and injures a sexual organ on that person, commits a capital felony. Now a capital felony it’s a long time ago Florida had certain crimes that were capital felonies obviously capital means the charge is where the sentence is they take your life. Capital punishment for instance. It’s not longer a crime where someone loses their life if they’re convicted and sentenced but capital felony now for these types of sex crimes is a life felony.

B: A life in prison?

M: Yes, and there’s no parole, no option for parole, no probation, it is for the rest of the person’s natural life they will spend in prison if they are convicted and sentenced of that charge.

B: As a Criminal Defense Attorney, what are some of the signs that you look for in consent is really the biggest thing here, correct?

M: Sure, on these types of charges, consent is the issues, because it’s not gonna be one of these strict liability type crimes where the age is the person wasn’t able to consent by law. It’s one of these issues where two people have sex and I can tell you as a defense lawyer it is not uncommon where one individual might be under the impression that the other is consenting and then the other party to the act may have a different impression. That does comes up and what I look for is kind of what I mentioned in the previous podcast, things about what the relationship was or what the people were doing the moments before the sexual activity occurred. Were they intimate prior to this act allegedly occurring? Were they planning on having sex? Was it everything that happened kind of a normal routine up until a certain point? These things matter because the prosecutor has the sole burden to prove that a crime was committed and specifically they have to prove that sexual battery occurred which means they have to prove penetration, they have to prove that sex basically happened. And then they have to prove that this victim did not consent. Now people can say, “I didn’t want to” but experience has shown me that there are times when reasons other than what happened in that immediate moment, folks say that it was a non-consensual moment. Sometimes that occurs because their misunderstanding about some circumstances that occurred. Sometimes that occurs because there are other influences, outside influences that cause them to change their perspective on what actually occurred. So the key is to know what the dynamic is in the relationship between the victim and the defendant. Did they know each other? What was the relationship like? Had they had sex before? And then, simply look at the facts surrounding the circumstances and what occurred. Obviously, when cases are violent, and people are severely injured, that’s obviously a set of factors that I’d be concerned about as a defense lawyer because in general terms people don’t typically consent to be injured and those are cases that become a lot more serious and they are punished a lot more seriously.

5:49 B: Are there – you mentioned the kind of relationship, are there other things that you look at – Communication back and forth via texting or messaging and just kind of see

M: Sure, I’ve had plenty of cases where there is an allegation of a sexual battery and there is communication subsequent to the event where it’s warm messages between both parties. They talk about meeting up later. And those are crucial pieces of evidence because it’s what happens after the effect. You know, if this person sexually battered an individual then at least the common sense expectation is that the other person would not want to have anything to do with the other individual. They’d at least be cold and not talking about engaging in another event where they’re together and meet up. So those are key. I don’t know why people make things up when it happens sometimes, there’s really no reason why. My only concern is what the facts and evidence is going to be when the prosecutor is looking at my client. And my job is to look at what those factors are and find out where the weakness is. Those post sex communications oftentimes are crucial in showing what really occurred that night.

B: In the last podcast, you also mentioned that husband and wife can have non-consensual and it be considered sexual battery, correct?

M: That’s correct. The statute doesn’t really take into account anything about the relationship except for if there’s a familial type relationship, like a father/son, father/daughter, mother/son, mother/daughter. There’s an enhanced penalty for that, but there isn’t some defense to sexual battery saying, “hey it’s my wife” or “hey, it’s my husband.”

B: OK. Alright, anything else that you wanted to cover on that?

M: Well, yeah, I think that the sexual battery statutes, a conviction on any type of sexual battery charge is absolutely devastating.  It has a life changing moment for a person, because if a person is convicted of any form of sexual battery, whether it be a second degree all the way up to a life in prison one, they’re going to be registered under the Florida Department of Law Enforcement Database as either a sexual offender or a sexual predator predator and that’s something that is public record and that will be there forever unless some court decides to change it. That’s something that it’s very hard to recover from, I would expect. I think that when someone’s name is out there on the internet and shows that they’ve committed a sexual crime of some type, it’s very hard for them to find a place to live and it’s very hard for them to find a job, and it’s certainly hard for them to find an accommodating atmosphere. Whether that’s well deserved or not, the part that is so serious is when these things are maybe some crimes that people shouldn’t be convicted of is when everything is on the table. Because you have a person’s life, you have a person’s entire future. Even if they beat the crime, even if they go to trial and we go to trial and is successful the jury is convinced and they’re found not guilty, it’s still very hard to recover from being arrested for such a serious crime like this.

B: It really is. Alright, well, we’re gonna pick up on the next podcast talking on kind of a similar realm. We’ve been speaking with Clearwater Defense Attorney, Mike Kenny, with the Bauer Crider & Parry Law Firm in Tampa Florida and the surrounding area, and this is the podcast.




Check out this episode!

Failure to Register as a Sex Offender in Florida

Failure to Register as a Sex Offender in Florida

Bauer Crider & Parry Podcast

Brad: Alright you’re listening to the podcast. We are speaking to Criminal Defense Attorney, Mike Kenny. Mike, we’re going to be talking today about the failure to register as a sex offender in Florida.

Mike: That’s right. Good morning. There’s actually two types of registration that people have to have with sex type crimes. The first type is to register as a sexual offender, and then a heightened registration, the next type is failure to register as a sexual predator. The designation means something. It means something as far as what the requirements are to register. It also is indicative of how serious the crime was. A person who has to register as a sexual offender is a person who has been convicted of any type of sex crime. Basically, any sex felony in the state of Florida. And that could be anything involving a sexual battery, you know and adult with an adult, or it could be any type of sexual crime involving a juvenile that’s a second or third degree felony. The sexual predator is reserved for a person who has been convicted at least one time of a first degree felony, and those are the most serious types of sex offenses really except for capital type crimes, or they have two separate convictions, whether it be a second degree felony or a third degree felony – two separate convictions at different dates. Those folks are sexual predators. They have heightened registration requirements where a sexual offender has to go into the sheriff’s office twice a year – once on his birthday and once six months after that. A sexual predator has to actually do it four times a year. And the idea behind it is so everyone can keep track of where everybody is and they know at all times where these people are living. I will tell you the most common types of crimes as far as failures to register, the most common types of issues that come up are that the person moves out of one address into a new address and they do not update anyone in the time period that they need to.  And it is quite a burdon to have to live under these rules your entire life but you don’t have the freedom to move from one place to the next without letting everyone know where you are first. And I think what some people run into, is they run into a problem where they’re living a difficult life in the situation that they are in – maybe some neighbors, some people in the community have a problem with where they are and they want to move somewhere else and find another place to live without that scrutiny and then they find themselves getting into trouble if they don’t update their address. But that’s usually the most common, that the person has changed their address and has not provided an updated address. The other type of failure to register crime that comes up is they don’t go into the sheriff’s office to update the information on the required dates. They have basically check in dates. These crimes are so serious now where they basically score a mandatory prison. Meaning that they are in and of themselves crimes that would send you to prison, let alone the fact that the person would have a prior history typically involving a sex offense. The unique thing about sexual offender crimes and sexual registration crimes is that there’s actually more than one type of address that a person can have. I’m involved in a trial now coming up which involves the type of address the person had. So for the most part a person has what’s called a permanent address as a sexual offender. And a permanent address is defined by statute as any location where a person lives greater than five days – five consecutive days – that’s considered your permanent address. So whether you’re staying at a hotel for six days or you’re staying at some park like an RV Park for awhile, that would be your permanent address. The other type of address a person can have is actually a temporary address. And a temporary address is defined as any location where a person is going to stay greater than five days in the aggregate. 4:40 And the aggregate means the combination, if you combine all the days together. And that kind of comes up if a person has maybe some family in another part of the state and they go and visit their family and they know they’re gonna visit their family throughout the year but it might not be consecutive days but it might be a couple days here, a couple days there, and a couple days there. That is something the person is going to have to register as a temporary address. Both of those addresses when registered are viewable, they’re public record. They’re on the Florida Department of Law Enforcement website. If a person was to do a website search of that person’s name, they’d find out exactly where he or she is registered as both their permanent and temporary address. Some confusion comes up as far as whether a person is living at a temporary address, whether that should be permanent or a permanent address that should be temporary, and that’s unique. I think the crux of that issue is whether or not it’s a consecutive stay or not, meaning whether you’re staying in there day in and day out for greater than five days. That’s gonna be your permanent address. There is even in an effort to accommodate every type of individual out there who might find him or herself with these types of charges, there’s even these transient types of addresses. Transient type of addresses are for folks who unfortunately find themselves as homeless and there’s literally like “under a bridge” type addresses. They basically inform the sheriff’s office where they’re going to be on a regular basis so they know where to find them. And I get the public policy behind it. Years and years and years ago there were some horrible crimes that happened to some children and the effort was to locate some individuals that might be the first suspects of certain types of crimes and they want to be able to locate these suspects as quickly as possible while there’s still a chance to find the victims in one piece. So I get the point behind it and certainly there’s no real objection to it. What I find is a problem with these types of crimes is that I mentioned I’m going to trial on a failure to register as a sexual offender charge. The facts as I look at them as we go through them I think there’s a very very strong case. I think factually my client is in a very good position. The problem is, these crimes just by their very nature, immediately draw attention in the mind of the juror and it’s usually not welcome attention. If the juror, the first probably two seconds of jury selection, when they hear that a person is accused of failure to register as a sexual offender, that juror has just been informed that the person has previously been convicted of a crime that would require him to register in the state of Florida as a sexual offender. And the first thing they think about is the most horrible type of sex crime you can think about against a child. That’s the natural way you know people think. So that’s a major obstacle to overcome even if your facts are great, you’re gonna have a juror who’s going to be thinking some pretty negative things about you. So, in my experience, it’s been in order to have an effective trial on those types of cases, you need to make sure you find out that your juror – you want to know the ones who kind of already got a bad taste in their mouth based upon the nature of the charge. And of course you can’t you can only get so deep on that. But you want to be able to present to the jury the facts and you want them to understand something about your client. Something about your client where they realize he’s not a name on a piece of paper with this horrible crime attached to it but you want them to see the big picture. Sometimes I talk to the jury about being courageous. A lot of these cases are about being courageous. It’s really easy to sit down, look at some facts that you don’t like, and say, “you know what, I don’t like the charge. I don’t like what this person was accused of doing in the past. I’m not even going to give it too much thought. This person is better off convicted anyway.” That’s the easy thing to do. It’s not always easy to be courageous and to be courageous is a person who looks at the facts and says, “I need to do what I know is right based upon the facts as I understand them. I may not like the crime that this person was convicted of. I might not even like this person, but I need to do what’s right because that’s what the law requires me to do.” So sometimes, as a defense lawyer, I really want to highlight how I want courageous jurors. Jurors who are able to almost hold their nose and check the box – almost do what they really don’t want to do but they know that they have to do it because it’s the right choice. And those are the folks that really are your best jurors because those are the folks who look at the facts and they don’t let those outside influences overwhelm their capacity to understand the truth.

9:42 B: That’s good. One question that I had. You mentioned that 16 is the consensual age for sex. That means basically, cause I believe in Oklahoma it’s 18 so you know an 18 year old and a 17 year old couple that have been together a long time and they have sex, the parent gets upset, something happens, they’re registered as a sex offender for the rest of their life. Is that kind of the same with say 16 and 15?

M: Yes, actually it’s kind of unique. I want to highlight there’s a unique part in there where there’s a change. So 16 is the age of consent and that works so a 16 yr old can have sex with any person who is 17, 18, 19, 20, 21, 22, even 23. Once you get past 23, and the other person is 16, once you are 24 or older the other person has to be at least 18. So it’s the reason why the legislature came up with that gap in years, the reason why is they didn’t want to have situations which probably happens more often than we’re prepared to recognize or admit, but folks in school – folks in high school. You have a freshman in high school who might be 14 or 15 and then you have maybe they’re maybe a little bit more mature emotionally and they end up talking to people who are a little bit older in high school and they end up engaging in a relationship with someone who’s maybe a Sophomore, Junior, or even Senior – a Senior you’re almost 18 if not 18 years old. And the legislature didn’t want to have a situation where they take two students who go to the same school and you’re basically making someone a sexual offender when the statute clearly was not designed to do that – punish high school kids like that. So what they tried to do is give a range. So it’s 16 up until 23 those two different ages are fine. Once you hit the age of 24, the other person has to be 18 years old. The other unique thing is, and it’s almost counter productive but if a person is under the age of 18, so they end up having sex with an adult and there’s one adult who is over the age of 18 and another person is under the age of 18, if that person gets pregnant, obviously if that girl gets pregnant, there is a crime for that called child abuse by impregnation. And so what that sets up is a scenario where the legislature says it’s legal for a 16 yr old to have consensual sex with a 20 yr old – there’s nothing about that that would be illegal. However, if the 20 yr old got the 16 yr old pregnant, that would actually be a crime called child abuse by impregnation. So it’s one of those weird catchalls that a person even though they might be considered permitted to have sex, you’re not out of the woods yet if somebody gets pregnant.

B: That is interesting. Alright, well you’ve been listening to the podcast. You’ve been listening to Attorney Mike Kenny at the Bauer Crider & Parry Law Firm on this one has been on Failure to Register as a Sex Offender in the State of Florida.

Overview Of Sexual Crimes

Tampa Sex Crimes Lawyer

Overview of Sex Crimes

Bauer Crider & Parry Podcast

Brad: Alright, good morning, this is the podcast. We are speaking to Tampa Sex Crimes Lawyer, Mike Kenny with the Bauer, Crider, & Parry Law Firm. Mike, how are you doing?

Mike: I’m doing well. Good morning, how are you?

B: Doing well, doing well. Well we’ve got some interesting topics that we are going to be discussing today and kind of the main one today is just kind of an overview of sex crimes.

M: That’s right. That’s right. The sex crimes statutes in Florida, and I say statutes because there is a couple of different sections that you’ll kind of find them in, cover a broad base of conduct that comes into play with sex related offenses. And kind of the way I look at it is you kind of have really two sections. You have this sexual battery section which is in Chapter 794 of the Florida Statutes, and that talks about basically consent type cases, cases where consent is actually an issue in the case. Where the person whose sexual activity was taken place with was not a willing participant. There’s a whole bunch of sections under that that we focus a lot of time on in our firm as far as defending. And then there’s another section, and that section falls under the section where we’re talking about really age of the victim. And those are your lewd or lascivious chapters and those talk about mainly the age of the victim. Basically the incapacity of the victim to even consent, even if the victim was a willing participant. So, it’s kind of broken down into those two parts, and they matter very much, because obviously they matter as far as what the defense might be in a certain set of circumstances and really what you want to look for as a criminal defense lawyer. I was a prosecutor for 5 1/2 years in Pasco County and I tried very many sex offenses. It’s one of the main investigations that I did on a regular basis was involving sex crimes once a week. And I can tell you that those two crimes are kind of handled differently. The consent oriented crimes, there’s a lot of focus on how the State might prove that the victim was not a willing participant, that the victim did not consent and there’s a lot of evidence that the State might point to. But when you start talking about sex offenses that are involving minor victims like children, consent isn’t really even a question or an issue. So, for instance, the Age of Consent, to have basically sex in Florida is 16 so anytime you have a case involving anyone under the age of 16 there could be a 15 year old and somebody older in school, maybe 17 or 18 in school, whether or not the 15 year old alleged that it was without her consent or his consent or not really is an irrelevant question because at the age of 15 they’re not really deemed legally able to consent so that doesn’t even come up in a jury instruction. All that has to be proven in a case involving someone under the age of 16 is that the act actually occurred. Whereas when you have a case involving two consenting adults, or shouldn’t say consenting adults but two adults, two 18 year olds or even two 17 year olds, you have to prove not only did the act happen, but you have to show the lack of consent on the purported victim in a case.

4:06 B: Mike, I wanted to kind of mention something there. You mentioned you were prosecution in Pasco County, correct? And so you kind of worked the other side of the bench and now you’re working the defense side. That’s why I like hearing your perspective on these things. What – you mentioned that there was certain evidence the state would look at in a conviction, correct? What were some of the things – and I know you’re working as a defense now, but what were some of the things that you were commonly looking for as a prosecutor.

M: Well, I guess it depends on what kind of case you’re looking at. If you’re looking at a case involving two adults, what you look at is the relationship between the two parties. What was involved leading up into that relationship, whether or not there was any physical force used in the sexual activity that happened. It’s not just that a victim would come in and say, “I didn’t consent to this” That obviously carries a lot of weight, but as prosecutors we also realize that we have to prove cases, so we have to look for certain evidence that might suggest or might prove beyond a reasonable doubt to the jury that the case is exactly what we say it is. So the dynamic of the relationship – obviously a relationship where there is a couple that knows each other for a long period of time is a little bit different than two strangers and someone alleges that they were sexually battered as they were jogging in a park. Obviously, that’s gonna be a case that’s gonna have a lot more, I would say, a lot more of an impact on a jury, because there’s two people who don’t even know each other, never met each other, and the jury might be a little bit more likely to be convinced that this was a situation that was nonconsensual, versus a situation for instance where you have a husband and a wife. A husband and wife have been married for several years. In the State of Florida, they don’t talk about the relationship being an issue to consent, all it talks about is that sexual activity happened without the other person’s consent. So a husband can be convicted of raping his wife and vice versa in the State of Florida.

B: Oh wow. Ok. Alright, so you kind of basically you kind of put it in two different categories, the consent and then the age and vulnerability, for the most part?

M: Yes, and I think that you’ll find that the statutes go on. Unfortunately there is a number of different ways, especially in this new world that we live in where computers are involved, there’s a number of different ways people can exploit other folks. So the Statutes kind of go on and on and on to capture every particular scenario that can be envisioned, but there’s the consent type statutes which are basically the sexual battery statutes. Sexual Battery in Florida is basically what people might understand as rape. We don’t have a rape charge, it’s called sexual battery. And those statutes talk about a person having sex with another person and that person either didn’t consent, that’s basically your standard – when I say standard, that’s your second degree felony. A second degree felony is punishable by up to 15 years in prison – that’s the maximum you can get for that. And then you kind of have different levels of a sexual battery. So one is just basically without consent. Two people have sex, one of the persons was not a consenting party to that, that’s a sexual battery. The next step is whether or not a person has sexual battery or is alleged to have committed a sexual battery and then the ideas that the person used force or threatened to use force. In that scenario, it rises up a level and becomes a first degree felony and then there’s  another level beyond that which talks about whether the person was actually physically injured, or the sexual organs of the person were physically injured and that’s a felony that can be punishable by life, even for a first time offense. So, you start off at the question of consent and then there’s enhancements to that type of crime which brings the punishment up in levels of severity.

8:34 B: One thing I wanted to ask on the age and vulnerability area, and you mentioned just kind of if they’re coherent enough to consent or not consent. Is that something that you always look at is whether alcohol was involved, drug use, that type stuff?

M: Well, sure that’s – that believe it or not can fall into just a regular sexual battery scenario. The as far as the alcohol involvement anyway or any of that. Consent is the question. So anytime a person alleges that he or she did not consent to the sexual endeavor, the issue is whether or not they were of sound mind to give consent or whether they were actually forced to do it. Whether they were threatened with force to do it. So a person can be absolutely under the influence and so inebriated that they don’t really recall the events that took place and there’s an argument that that was specifically an endeavor a sexual experience that did not involve consent, did not have consent from one of the parties. There have been plenty of cases that I had as a prosecutor where there are individuals at a party and one of the people passes out and when that one person passes out, the other person still engaged in sexual intercourse, and that would qualify as a sexual battery. The Statute actually specifically talks about cases where obviously we’ve heard the term “ruffy” before. The Statute specifically talks about a sexual battery would be a situation where a person engaged in sexual activity with another person when the act – the person committing the act – knew either by himself or knew that someone else administered an intoxicating drug or something that would sedate the other individual. And that comes up, has come up a lot in prosecution.

B: Alright, anything else, Mike? I know we’ve got a few more things we’re going to cover in the next few podcasts, but

M: Sure, yeah the interesting thing about the you know if you want to talk about the cases where you have people being drugged, the interesting thing is the most common date rape type drugs that have been used, are used because they are very quick to be basically not necessarily effective or work but your body processes them very quickly so within 24 hrs whatever that person was administered isn’t going to be there. So a lot of times the people don’t even realize what happened – the people being the victims – don’t even realize what happened until later. Don’t even, they’re curious as to how they found themselves in such a situation. And by two or three days later, it’s too late to even test for the presence of the intoxicating substance. But the biggest, I think the most important issue to look at when you’re looking at these two cases, is really the age is going to determine how the case is prosecuted, because if the victim is under the age of consent, meaning the victim is under 15, the prosecutor really I wouldn’t even expect him or her to even concern himself with the consent aspect, meaning to prove that it was a nonconsensual endeavor because it doesn’t matter. It’s not a relevant question. It doesn’t tend to prove of disprove anything that would be at issue in the trial. So all that has to be proven is that the act occurred and that’s a lot – I don’t want to say easier, but it’s one less thing that the prosecutor has to do versus a case where you have two adults who have met the age of consent in Florida.

B: Well, I’m gonna stop you there Mike, and we’ll pick up in the next podcast. Alright, you’ve been listening to Mike Kenny, Tampa Sex Crimes Lawyer at Bauer Crider & Parry and you’ve been listening to the podcast.

Check out this episode!

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The Tampa Police Department consists of at least 1,000 authorized personnel positions and at least 350 civilian and support staff. As the police department aims to lower crime rates in the city, the officers can be really strict in enforcing the law. With this, cases of wrongful accusations may also become possible. An individual accused of a crime must take steps to avoid conviction. In any case, it’s wise to get a criminal attorney as soon as possible. Read More →

Call a DUI Attorney: What are the Penalties for a DUI Conviction?

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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 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 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 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.