Thursday, April 26, 2012

Juvenile Crimes in West Palm Beach and Fort Lauderdale
Arrested for Possession of Marijuana in Fort Lauderdale?  

Arrested for Possession of Marijuana in West Palm Beach?  
Know Your Legal Rights When Dealing With Police in Florida.

Can the police search me whenever they want?  
The answer is NO. 
     The police are allowed to search you for weapons only, and only if, they have a reasonable suspicion to believe you may be carrying a weapon.  If the police feel something that they reasonably believe to be a weapon they may retrieve it from your pockets or waistband.  This is permitted for a Police Officer’s Safety. The police cannot go into your pockets for anything else.  

     For example, if you are walking home from school and a police officer stops you and requests to search your person then you should politely respond, “ I do not consent to searches.”  If the officer feels that safety is an issue, and they will always say that safety is an issue, they will pat you down.  A “pat down” means they can feel the outside of your clothing for any weapons.  If they feel something that is not a weapon and tell you to remove the item you must repeat the magic words, “no, I do not consent to searches” because if you remove the item from your pocket and it is something illegal you will be arrested.  If the police go into your pocket and remove it without probable cause to arrest that is illegal.  If you are illegally searched and arrested then your criminal defense lawyer will be able to file a motion to suppress the evidence and possibly dismiss the criminal case. 
     Please remember never touch or pull away from a police officer, as your problems will greatly increase.  Simply, repeat the magic words, “Officer, I do not consent to searches” and repeat several times if they don’t listen.  Never volunteer information to a police officer.  The only thing you should supply them with is your name.  Your constitutional rights are solid and they say that you don’t need to talk to the police.  So do not talk to them. Do not tell them where you are going, what you have been doing or your reason to be at your current location as it is none of their business.  If you feel you need to answer a question, think twice.  The police are paid to arrest people.  Everything you say will be used against you.   If a police officer asks me why I am at a particular location I say, “personal business.”  That is sufficient.  You do not need to answer their questions-respectfully decline to answer questions.

     If you have been arrested then the police are allowed to fully search you after you are arrested. They can search your pockets, and belongings that you are carrying, etc.  If arrested, remain silent and never pull away or touch a police officer or it will only get worse.  Remain silent and request a lawyer.  The wait is long when you are arrested but remain silent as eventually you will have a lawyer and your lawyer will fight your fight, not you.  If you fight or argue with police they will add additional charges-remain silent except when asking for a lawyer.  Asking police officers questions can waive your constitutional rights.  Police are arresting you so do you really think they are your friend? Common sense tells you that they are not and the Florida Supreme Court has ruled that police officers are allowed to lie to suspects during their investigation.  Expect everything they say to be a potential lie.  Remain Silent!

The case below involves a juvenile in Miami-Dade County that was being investigated for a burglary and was being detained temporally by police.  At the time, the police officer detained him, there was not sufficient probable cause to arrest him and the police were only allowed to pat him down for weapons.  The police in this case searched his pockets and found marijuana.  The search was deemed illegal by the District Court of Appeal because the juvenile had not been arrested and they had no reason to search him other than to pat him down for weapons. 

Note: Although the case was decided in Miami-Dade County, the law is the same throughout Florida.  Yes, there are different District Courts of Appeal (Appellate Courts) and sometimes they reach different conclusions, but if, and when that happens, there are often distinguishing factual differences that explain the different rulings.  If two or more District Courts of Appeal give conflicting conclusions on the same issue the case is sent to the Florida Supreme Court for a defining answer.
Check out the case below to understand the Court’s logic and why the search was illegal.

D.S., A JUVENILE, Appellant, vs. THE STATE OF FLORIDA, Appellee. 3rd District. Case No. 3D09-2558. L.T. Case No. 09-2521-A. Opinion filed April 11, 2012. An Appeal from the Circuit Court for Miami-Dade County, Mindy S. Glazer, Judge. Counsel: Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant. Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
(SUAREZ, J.) D.S., a minor, appeals from a withhold of adjudication of delinquency entered following an adjudicatory hearing. We reverse, as the trial court should have granted the motion to suppress filed by D.S.
D.S. was detained, along with other persons, on suspicion of burglary. He was later arrested for loitering and prowling and for suspected marijuana. He was not under arrest at the time another officer brought D.S. to Officer Lambert, who understood that she was merely detaining him while the other officers finished their investigation. Officer Lambert proceeded to fully search D.S., not pat him down, prior to placing him in her squad car to await the outcome of the investigation. She did not read him his Miranda1 rights, she did not see any bulges that might give her probable cause to search.2 She testified that she routinely searches suspects prior to placing them in her vehicle as a safety precaution. Upon fully searching D.S., she discovered a baggie of marijuana and at that point she arrested him.
The trial court erroneously denied D.S.'s motion to suppress. D.S. was not under arrest at the time of the search, he was merely detained and awaiting the conclusion of the officers' investigation into the burglary call. Officer Lambert's search of D.S. exceeded her authority where there was no reasonable suspicion to believe D.S. was armed and dangerous, and he had not yet been arrested. See D.B.A. v. State, 962 So. 2d 406 (Fla. 2d DCA 2007) (holding that The Florida Stop and Frisk Law authorizes a limited search to disclose a dangerous weapon where an officer has probable cause to believe that the detainee is armed with a dangerous weapon, that search may not go beyond a pat down of the detainee's outer clothing, and only if an officer reasonably believes that an object he feels during a pat down is a weapon may he seize the object) (citations omitted). We agree with the holding in T.L.F. v. State, 536 So. 2d 371, 372 (Fla. 2d DCA 1988), which provides that:

Under the circumstances of this case, an arrest would only have been appropriate if probable cause had existed to arrest appellant for the burglary. The police cannot be allowed to use the loitering and prowling statute to detain an individual for another offense for which probable cause is lacking and then use the fruits of the unlawful detention as evidence that the individual committed the other offense. . . . To allow such “bootstrapping” of evidence would lead back to the dark ages when police were able to use the loitering and prowling statute as a catchall charge to arrest persons at their whim.
We conclude that the order denying the motion to suppress should have been granted and accordingly, we reverse D.S.'s adjudication of delinquency and remand with directions that he be discharged.
Reversed and remanded with directions.
(SHEPHERD, J., concurring specially.) If the facts were as the State and the dissent propose, I would agree the adjudication should be upheld. But, they are not, so I cannot. The State argues, and the dissent accepts, that D.S. was searched incident to an arrest. However, the record reflects D.S. was not under arrest for any crime -- loitering and prowling, burglary, or anything else -- at the time he was searched by Officer Lambert. The record tells the tale.

Officer Veronica Lambert
Officer Veronica Lambert testified she responded to a burglary in progress. She did not talk to any other officers about the investigation. Pursuant to protocol -- five police units already were on the scene -- she “just stayed off” from the house. Although she did not have a clear view of the house, she saw D.S. emerge from the house with an officer escort. The officer brought D.S. to her to hold him pending completion of the investigation. There were no bulges or other evidence of a dangerous weapon on his person.
As even the dissent acknowledges, at that time, “[D.S.] was being detained” by Officer Lambert in “reference an investigation.” See dissent p. 17. He was not arrested. The search occurred before any arrest. This fact is unambiguously confirmed by Officer Lambert in her testimony:

Q When you came in contact with D.S., why was that?

A Well originally he was one of the suspects that were taken out of the house.

Normally what they do in a situation where you have a burglary in progress, if there's numerous suspects we like to keep them separate.

. . . .

We want to keep them separate so that they don't come up with a collaborated story.

I received one suspect, and the other ones were separated.

Q Did you go up to D.S., or did another officer bring D.S. to you?

A He was brought to me.

Q Okay, but did you see him coming from the vicinity of the house?

A Yes.

Q Is that the house where the burglary in progress was reported?

A Yes.

Q Okay. Now, when you came in contact with D.S., what did you do next?

A I know that he was searched because I had to put him in my vehicle. But I don't recall if I put handcuffs on or if they were already on. I don't recall that part of it, but I know that I did search him because he was going into my vehicle.

Q Now why exactly did you search him because he was going into your vehicle?

A That's something that we do for officer safety. It's an officer safety issue. Just to make sure there's nothing that will harm me, or harm him[ ], or anything like that.

Q Do you do it every time you arrest somebody?

A Absolutely.

Q And do you -

A Arrest, detain, it doesn't matter. For whatever reason.

Q Upon searching the Defendant did you find anything?

A Yes.

Q What did you find?

A A bag of marijuana, suspect marijuana.

. . . .
(emphasis added.)
On cross-examination, Officer Lambert again confirmed D.S. was not arrested when he was brought to her:

Q Was he arrested when he was brought to you?

A Well, I mean at that time he would have been detained.

Q Okay.

A Okay?

Q When you made contact with D.S., did you read him Miranda?

A No, I did not.

Q Did you ever ask him any questions as to why he was in the house?

A No ma'am.

Q Did you subsequently arrest him?

A I'm sorry?

Q You said when he was brought out to you he was detained?

A Right.

Q Then, you thereafter arrested him?

A Right. After the marijuana was found on his person.

Q Okay, but prior to that was there a basis to arrest him?

A Well, as far as the other officers that brought him out of the house, no. As far as I'm concerned with that, he was being detained by me in reference to them finishing their investigation.
(emphasis added).
The final confirmation of this fact occurred on redirect examination with the following colloquy:

Q Okay, so do you know if the officers who handed him off to you, if they were arresting him for anything, including loitering and prowling? Or burglary, or -

A Yes. It wasn't like a hold to identify. It was based on him being held pending investigation and getting information to charge him with, whatever charges, whether it be L and P, or burglary, or whatever the case was.

Q But ultimately there had already been a decision that he -

A Right.

Q -- should be detained?

A Right.

Officer Anthony Collier
Officer Collier arrived on the scene after Officer Lambert. Officer Collier testified as follows:

Q Upon arrival who did you make contact with?

A Upon arrival I made contact with D.S., the Defendant.

Q What did you do in the course of your investigation?

A I believe Officer Veronica Lambert was dealing with him, gathering some information from him. At that point, I took possession of him.

Q You said that you responded to a burglary in progress. Did you make contact with any officers on scene that had previously responded?

A Officer Lambert.

Q What was the nature of Officer Lambert's investigation?

A She explained to me that she had detained the Defendant, and she patted him down, and she was able to retrieve a baggy of suspected marijuana from his right front pocket.

Q Were you investigating any other charges on scene?

A Yes, I was.

Q What other charge were you investigating?

A Loitering and prowling.

Q Did you speak with anyone regarding the loitering and prowling?

A Yes, I did.

Q Who did you speak to?

A . . . Officer Lambert.

Q What were the results of Officer Lambert's investigation?

A She advised me that there were some other officers that responded to the scene as well, and that upon getting there they discovered the Defendant somewhere inside of the home.

. . . .

Q [W]as the homeowner inside the home?

A The homeowner wasn't inside the home, but I spoke to a witness who was on the scene.

. . . .

Q What did [the witness] tell you he observed?

A He told me he was visiting a resident at 2515 Northwest 158 Street, and he observed three black male defendants breaking down the door of the home.

Q Did he tell you that the Respondent was one of those individuals he observed?

A Yes.

Q Based on your investigation on the scene, did you make a determination as to probable cause?

A Yes, of course.

Q What was that determination?

A Based on the burglary in progress that I responded to.

Q What was the Respondent arrested for?

. . . .

A The arrest was for loitering and prowling, and for suspected marijuana.
(emphasis added).
On cross-examination, Officer Collier stated D.S. was “detained” when he arrived on the scene.3 He confirmed he arrested D.S. for loitering and prowling based on what fellow officers told him, since “[t]hey're officers just like me.”

The State's position during the hearing on the motion to suppress was that “[t]his was a search incident to arrest.” However, there can be only one conclusion drawn from the actual testimony: D.S. was not placed under arrest until after he was searched. It might have been that D.S. could have been arrested before the search, but, we, of course, must deal with the arrest we have, not the arrest we wish we had. As the Oregon Supreme Court has explained:

[A]n arrest is the crux of a “search-incident-to-arrest.” By definition a search ‘incident to' an arrest is a warrantless search that is justified by the fact that a suspect is arrested. The justification arises from the practical consequences of taking a person into custody, and it cannot extend beyond those practical consequences if the fact of the arrest is its premise.
State v. Owens, 729 P.2d 524, 533 (Or. 1986) (en banc) (quoting State v. Brown, 721 P.2d 1357, 1370 (Or. 1986)).
The dissent urges that two cases from this court, Freeman v. State, 909 So. 2d 965 (Fla. 3d DCA 2005), and Thomas v. State, 395 So. 2d 280 (Fla. 3d DCA 1981), require affirmance. However, in each case, the arrest preceded the search. Also in each case, the defendant argued the arrest was made on an unlawful charge and the search therefore was illegal. We held the searches nevertheless were lawful because in each case there was probable cause to arrest the defendant on another charge. In other words, the justification for the exception to the warrant requirement still applied.
For example, in Freeman, the defendant, Andrew Freeman, and another man were stopped at 4:30 a.m., carrying a large commercial-grade chain saw, a gas-powered weed whacker, a hedge trimmer, and two leaf blowers. Freeman, 909 So. 2d at 966. Freeman also was towing another bicycle alongside the one he was riding. Id. Noticing the substantial amount of lawn equipment and extra bicycle being carried by Freeman, Officer Brad Taylor, aware of a recent rash of lawn tool thefts from garages and lawn sheds in the vicinity, stopped the two men. After Freeman proved unable to describe the make, manufacturer, or description of what he claimed to be his own equipment and gave a false explanation why he was carrying the equipment around 4:30 a.m., Freeman was arrested for loitering and prowling. Id. at 967. He then was transported to the police station, where he was informed of his Miranda rights,4 and then gave a written statement to the officer. Id.
Freeman moved to suppress the fruits of the theft and the post-arrest statement on the ground there was no probable cause to support his arrest for loitering and prowling. We affirmed the trial court's denial of the motion, stating:

[W]hile the circumstances of this case and Freeman's behavior may not have been sufficient to support a loitering and prowling conviction, a crime for which he was neither tried nor convicted, they were more than adequate to support his arrest [for theft]. We therefore conclude that there was probable cause for the arrest and that Freeman's motion to suppress was properly denied.
Id. at 968 (footnote omitted).
Freeman, in turn, relies on Thomas. Thomas is factually indistinguishable from Freeman. Like Andrew Freeman, Andrew Thomas also was arrested for loitering and prowling. Thomas, 395 So. 2d at 280. A search of Thomas' person was conducted incident to that arrest. Thomas moved to suppress the fruits of a burglary found during the search. Id. Despite the fact the officers were of a mistaken and contrary belief at the time of the arrest, probable cause existed at the time of the search to arrest Thomas for the crime of burglary. Id. at 281. We affirmed the denial of the motion to suppress, stating, “Where, by objective standards, probable cause to arrest for a certain offense exists, the validity of an arrest does not turn on the fact that an arrest was effected on another charge.” Id. In the case before us, there was no arrest before Officer Lambert performed her search.
The police had every right to hold D.S. while they completed their investigation in this case. See State v. Reyes, 4 So. 3d 46, 48 (Fla. 3d DCA 2009) (discussing investigatory stops, during which an officer may temporarily detain an individual if the stop is supported by a reasonable suspicion that person committed, is committing, or is about to commit a crime) (citing Popple v. State, 626 So. 2d 185, 186 (Fla. 1993)). However, as the United States Supreme Court stated forty-five years ago in Sibron v. New York, 392 U.S. 40 (1968) -- the simultaneously issued, but lesser known cousin of Terry v. Ohio, 392 U.S. 1 (1968) -- absent an arrest, the officer “must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” Sibron, 392 U.S. at 64 (citing Terry v. Ohio, 392 U.S. at 21); Reyes, 4 So. 3d at 50; see also § 901.151(5), Fla. Stat (2009). There are no such facts to justify the search in this case. I know of no case that stands for the proposition an officer can search an individual simply because the individual is being placed in a police vehicle. See L.C. v. State, 23 So. 3d 1215, 1219 (Fla. 3d DCA 2009).
The trial court erred by refusing to suppress the marijuana found on D.S. in this case as fruit of an illegal search and seizure. See Wong Sun v. United States, 371 U.S. 471, 484 (1963). I agree the adjudication should be reversed.
(LAGOA, J. (dissenting).) Because I disagree with the majority's conclusion that there was no probable cause to arrest D.S., I respectfully dissent.
D.S. was arrested by Officer Collier for loitering and prowling and possession of marijuana. The petition charged him with possession of cannabis. His argument below, and on appeal, was that there was no probable cause to arrest him for loitering and prowling, and therefore, the search, which revealed the marijuana, was illegal.
In support of its reversal, the majority cites to cases from the Second District. This Court, however, is bound by its own precedent and both Freeman v. State, 909 So. 2d 965 (Fla. 3d DCA 2005), and Thomas v. State, 395 So. 2d 280, 280-281 (Fla. 3d DCA 1981), are directly applicable to this case. As this Court noted in Freeman, 909 So. 2d at 967-68:

In Thomas, arresting officers believed that the circumstances at the time of Thomas's arrest justified an arrest for loitering and prowling. Thomas maintained that an arrest on that charge was unlawful, and thus that the evidence obtained as a result of that arrest should be suppressed. We affirmed Thomas' conviction finding that there existed, notwithstanding the officers' mistaken and contrary belief, probable cause to arrest Thomas on a charge of burglary. Thus, we concluded that “[w]here, by objective standards, probable cause to arrest for a certain offense exists, the validity of an arrest does not turn on the fact that an arrest was effected on another charge.” Thomas, 395 So. 2d at 280-81 (citing Chaney v. State, 237 So. 2d 281 (Fla. 4th DCA 1970), and United States v. Ullrich, 580 F.2d 765 (5th Cir. 1978)). We went on to observe that “given the existence of probable cause to arrest Thomas for the offense of burglary, the validity of the search of Thomas is unaffected by the fact that the search preceded his formal arrest on that charge.” Thomas, 395 So. 2d at 281 (citing Rawlings v. Kentucky, 448 U.S. 98, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980), and Dixon v. State, 343 So. 2d 1345, 1347 n. 3 (Fla. 2d DCA 1977)); see also Blanding v. State, 446 So. 2d 1135, 1136 (Fla. 3d DCA 1984) (“[a]n arrest based on probable cause is not rendered unlawful because the arresting officer attaches an improper label to it”).

“Probable cause to arrest exists when the totality of the facts and circumstances within the officer's knowledge would cause a reasonable person to believe that an offense has been committed and that the defendant is the one who committed it. The facts constituting probable cause need not meet the standard of conclusiveness and probability required of the circumstantial facts upon which a conviction must be based. An officer is permitted to take a realistic view of the facts in making a probable cause determination, ‘for probable cause is a matter of practicalities, not technicalities.' ” State v. Cortez, 705 So. 2d 676, 678 (Fla. 3d DCA 1998) quoting State v. Russell, 659 So. 2d 465, 468 (Fla. 3d DCA 1995) (other citations omitted).
(Emphasis added). Therefore, even if no probable cause existed to arrest D.S. for loitering and prowling, as long as there was probable cause to arrest him on another charge, the search incident to arrest was lawful.5 See Lugo v. State, 992 So. 2d 415, 418 (Fla. 3d DCA 2008); State v. Orozco, 607 So. 2d 464, 465 n.1 (Fla. 3d DCA 1992).
Here, the officer who conducted the search, Officer Lambert, testified that she responded to the scene on a call for a burglary in progress, and that she saw D.S. being escorted out of the house. She testified that he was being detained in reference to the investigation of the call for a burglary in progress. The arresting officer, Officer Collier, testified that he responded to a burglary in progress. He also testified that when he arrived at the scene he spoke to a witness who observed D.S. and two others breaking down the door to the home in which he was found by police officers. It is undisputed that D.S. was found inside the home. Given this testimony, there was probable cause to arrest him for burglary. See State v. Clark, 721 So. 2d 1202 (Fla. 3d DCA 1998); Brescher v. Pirez, 696 So. 2d 370 (Fla. 4th DCA 1997); State v. Cote, 547 So. 2d 993 (Fla. 4th DCA 1989); McKee v. State, 430 So. 2d 983 (Fla. 3d DCA 1983). Accordingly, the fact that he was arrested for loitering and prowling does not render the search incident to arrest unlawful.
I would affirm.
1Miranda v. Arizona, 384 U.S. 436 (1966).
2The record indicates that D.S. may have been in handcuffs at the time.
3Officer Collier misspoke when he stated earlier in his testimony that Officer Lambert “patted him down.” Officer Lambert testified consistently during the course of her testimony that she “searched” D.S.
4Miranda v. Arizona, 384 U.S. 436 (1966).
5Not only is this Court bound by its own precedent of Freeman and Thomas, but neither case relied upon by the majority is applicable to the case at hand. The majority's reliance on D.B.A. is misplaced because this case does not concern a temporary stop or detention pursuant to the Stop and Frisk Law, but rather, was a search incident to arrest. See Thomas, 395 So. 2d at 281. T.L.F. is also not applicable because in that case the robbery occurred days before the defendant's arrest, 536 So. 2d at 372, unlike here, where an eyewitness observed and reported D.S. breaking down the door to the home in which he was found.
If you are arrested in Fort Lauderdale and need a Criminal Lawyer, contact The Law Office of Roger P. Foley at (954) 467-2946
If you need a Criminal Defense Lawyer in West Palm Beach, contact The Law Office of Roger P. Foley at (561) 746-7076
Mr. Foley is available to lecture at your High School and/or College University regarding Your Legal Rights When Dealing With Police.  Contact him at the above referenced numbers for more information. 

Sunday, March 25, 2012

Resisting A Police Officer With Violence in Florida

Resisting A Police Officer With Violence in Florida is a Felony Crime.   If you are arrested for the crime of Resisting an Officer With Violence in South Florida you should contact Criminal Lawyer Roger P. Foley.

Mr. Foley has offices in Broward and Palm Beach Counties.

Here are some things that you should know about the crime of Resisting an Officer With Violence:
  1. Its not hopeless - you can fight your criminal case. (See Florida Statute 843.01 for full details
  2. Resisting An Officer with Violence is a third degree felony
  3. A third degree felony is punishable by a maximum of five (5) years in a Florida Prison
  4. When Police use excessive force they often claim that the defendant resisted with violence and the defendant’s resistance is what caused the police to use force against him/her.   It justifies your bruises.   If you did not resist, then they would not have taken you to the ground,
  5. To find you guilty of Resisting an Officer With Violence the state must prove 4 elements beyond and to the exclusion of a reasonable doubt:
    1. (Defendant) knowingly and willfully [resisted] [obstructed] [opposed] (victim) by [offering to do] [doing violence] to [him] [her].   Offering to do violence means threatening to do violence.  
    2. At the time, (victim) was engaged in the [execution of legal process] [lawful execution of a legal duty].  
    3. At the time, (victim) was [an officer][a person legally authorized to execute process].
    4. At the time, (defendant) knew (victim) was [an officer] [a person legally authorized to execute process].
  6. The crime of Resisting an Officer With Violence is an offense that can be sealed or expunged from your record if any of the following are true:
    1. The state attorney’s office files a No Information - they decline to file official charges.
    2. The case is dismissed on a technicality.
    3. The case is Nolle Prossed by the State Attorney’s Office.
    4. The case goes to trial and you are acquitted of the charge.
    5. You receive a Withhold of Adjudication and have no other convictions on your criminal record.
  7. Get the notion out of your head that you can’t win.   If you did not commit the crime, hire a Criminal Defense Trial Lawyer that will be your voice in the courtroom.   Just because a police officer says it is so does not mean that your case is impossible.
  8. Hire the best criminal defense lawyer possible to defend you. Remember you can choose the players on your team.   Talk to several lawyers and then pick the Criminal Lawyer that makes you feel most comfortable.

If you are charged with Resisting a Police Officer With Violence, contact Florida Criminal Defense Lawyer, Roger P. Foley.

Mr. Foley is an aggressive criminal defense attorney who has a no-nonsense approach to defending his clients.   When accepting a criminal case he will do everything legally possible to win your case.   If your looking for a Criminal Defense Lawyer that brings his best effort on every case then contact Florida Criminal Attorney, Roger P. Foley.

Mr. Foley has been recognized as one of “Florida’s Legal Elite.”   Roger P. Foley has also been recognized as a “Florida Super Lawyer.”

Sunday, March 18, 2012

Diversion Program Issues

“If you tell the truth, you don’t have to remember anything.”Mark Twain

I have often wondered why some people take the time to find the right criminal attorney to represent them, sign paperwork, pay them, etc., and then feel the need to be dishonest. If I am the one who is going to represent you and defend you diligently regardless of your crime, it would be best if you were upfront with me.  No?

Let me share a great example of what happens when clients lie to their attorney.  Perhaps in reading the outcome some people will think twice if they are ever asked the following question:

  “Have you ever been arrested for a crime in Florida or anywhere else in the world?

I have clients come into the office all the time and one of the first questions that they are asked on their intake sheet is the question, "Have you ever been arrested? Have you ever been convicted?"   “No, Mr. Foley, I swear” and “Nope, my record is clean” are often their response.

The reason this question is asked to my client is because if they have not been arrested and they are truly a first-time offender, they may be eligible for some type of diversion program.

“What is a diversion program?”  First off, let me state again, it is for first-time offenders only.  So, if you have racked up a few misdemeanors or felonies convictions, you are ineligible.  Diversion programs are great for those who have been arrested for their first offense, and if the offender follows all of the stipulations set forth for the duration of the program (usually 6-12 months), then the case is dismissed and life continues on.

What is involved in applying to a diversion program?  That is where I come in.  Not every crime is eligible and some crimes are admitted on a case-by-case basis.   Entering any diversion program requires paperwork, background checks, and contacting the department of corrections, supervisor signatures, and several court dates.  It takes time and patience, and as I mentioned earlier, there are a lot of forms that come along with the process.  It is worth it for someone who is a first-time offender, as it is a guaranteed victory for someone who follows the rules and has no previous arrests or convictions.  If the offender does everything requested of them then the case is dismissed.  No attorney, no matter how great they are in the courtroom can guarantee you a victory but once in a diversion program, it is guaranteed that your case will be dismissed if you adhere to the rules.

Here is where the aggravating part comes in:  I start every conversation with my clients by telling them that what they say in my office is confidential.  I try to get to know each client and make them feel as comfortable as possible.  Why do some clients lie to me?  I wish I knew the answer to that.  What is frustrating about a client doing this in regards to the diversion program is that I have spent months filing paperwork, making phone calls, kissing the ass of supervising attorneys at the State Attorney’s office, and often going to several court appearances while I wait for a document that say my client’s request to enter a diversion program is granted.  I wait and wait only to receive a letter for the State Attorney’s office and Corrections that my client is ineligible because they have previous been arrested and have a criminal record.

Because this has happened repeatedly, I have had no choice but to do something about it.  Now, all of my contracts let the client know that if you lie to me and I spend time trying to get you into a diversion program and you are not admitted because of a prior arrest, then my work for you is complete, you do not get a return on your money.  If you wish, you can re-hire me as your lawyer for your case that will now be fought in a courtroom.  End of story.

There are a few particulars that I want to mention about diversion programs.  Many diversion programs are discretionary.  It is up to the prosecution to make that decision.  Sometimes juvenile records are used against you when applying to a diversion program, sometimes they are not.  For example, if you are 21 years of age and are arrested for the first time as an adult you would think that you are eligible to enter a diversion program.  That is not always correct as the state attorney can and often does look at your juvenile record and that juvenile record can prevent you from entering a diversion program.  Remember, it’s not a right it’s discretionary.

Second, if you are lying about not having any prior arrests or convictions, I will find out eventually.  One client recently told me they had no priors, only to find out they were an eight time convicted felon!  No surprise he was not eligible for a diversion program.

Remember, an attorney can withdraw from any case if they cannot effectively communicate with their client. Do you find it easy to effectively communicate with someone who is lying to you? Me neither.  Please, just be upfront and I will give you my best.

If you read this far, I want to thank you for taking some time to hear what I have to say and hopefully you learned a thing or two about the legal system.  I do not consider myself the next award winning writer, but I do like to discuss a variety of subjects on my blog and this was one that I thought was important.

Thank you.

If you have any questions regarding pre-trial diversion programs for either Felony or Misdemeanor cases contact The Law Office of Roger P. Foley, P.A.

Saturday, January 28, 2012

Grow Houses in Rental Homes

Hydroponics operations are often found within foreclosed and abandoned homes, however, such operations are also run in rental homes.

Many marijuana growers in Palm Beach County rent homes from landlords as tenants solely for the purpose of creating a grow house within the space. Growers typically look for homes in Palm Beach County with large attic space to accommodate the technology that will be used. In homes with sparse attic space, holes are cut in walls to provide for adequate ventilation. Operations are also run underneath the rental space to provide the needed ventilation. Ventilation is needed in grow houses not only because of the high intensity lamps utilized but also because the irrigations systems used for plant grown cause dampness in the home. In addition to physically altering the residence for ventilation, specialized curtains, flooring, and insulation are also used and modified to reduce the heat within the house.

Hydroponics operations in rental homes are discovered by landlords requesting to inspect the property. Many people rent homes and never even see their landlords throughout the entire lease period. Landlords have the contractual right under the lease to inspect their rental properties upon giving merely 24 hour notice to renters. Many landlords in Palm Beach County are wary of the fact that growers utilize rental homes for grow houses. When they begin to notice hydroponic materials, unusual modifications to the home, reports of high power usage, or even mold, they may request to enter the home themselves or report their findings to police officers in Palm Beach County.

Landlords are especially cautious when they suspect marijuana is being grown in their rental homes because Florida law allows charges to be brought against a homeowner or landlord who knowingly owns a house being used to grow marijuana, even if he or she does not live there. Typically, when landlords merely suspect that such an operation is underfoot, they will report their suspicions immediately to local law enforcement to protect themselves from prosecution.

If you or a loved is facing charges in connection with the operation of a Grow House in Palm Beach County, contact a Palm Beach County Criminal Defense lawyer today.

Thursday, December 1, 2011

Law Updates for November 24, 2011

L.M., 36 FLW 2467, 3rd DCA, CCW - Error to find juvenile guilty of CCW where weapon was BB gun which was not loaded with pellets and lacked a CO2 air cartridge and no testimony describing its operation of the nature and characteristics of injuries, if any, it was capable of inflicting, K.C.,49 So. 3d 841, 843(4th DCA 2010)

Ylomon, 36 FLW 2488, 4th DCA, Constructive possession - Court erred in denying JOA where State only proved that the defendant was sitting on a couch with a codefendant in close proximity to controlled substances and paraphernalia and no evidence was presented from which the State could infer that the defendant had the ability to exercise control over the drugs.

Jackson, 36 FLW 2499, 4th DCA, Conspiracy to traffic in oxycodone - No evidence to convict for conspiracy where there was no evidence of defendant's participation in any prior activity regarding drug transactions sufficient to establish an agreement to traffic in oxycodone.  Even if present at pre-arranged drug transaction and may have been a lookout is, insufficient to prove any implied agreement, maybe proof of trafficking but no proof of underlying understanding or agreement.

Gore, 36 FLW 2500, 4th DCA, Pharmacy and medical records - Trial Court properly denied motion to suppress pharmacy records which police obtained without a warrant or subpoena.  There is some expectation of privacy in pharmacy records.  Police may secure pharmacy records of Ch 893 controlled substances pursuant to a criminal investigation, but not pharmacy records of all prescriptions.  Trial court erred in denying motion to suppress medical records and physician statement which police obtained without a subpoena or defendant's authorization.

Thursday, November 17, 2011

Law Updates for November 11, 2011

Hernandez, 36 FLW 648, Fla, A Driver's License Suspension can be predicated upon a refusal to submit to a breath test, not only if the refusal is incident to a lawful arrest.  Driver can not be precluded from challenging whether the refusal is from an unlawful arrest.

Page, 36 FLW 2395, 4th DCA, Trial court erred in finding that the officer's use of defendants's name and date of birth for a warrants check turned consensual encounter into an encounter requiring reasonable suspicion.

Blue, 36 FLW 2399, 4th DCA, Jessica Lunsford Act went into effect July 1, 2007.  If someone's case happened in 2001 and VOP in 2009, they do not automatically have to wear the monitor, but can still apply monitor under 948.30(2)(c) if the court makes the requisite findings.

Harris, 36 FLW 2400, 4th DCA, Possession of cocaine with intent to sell - Evidence was insufficient to exclude the reasonable hypothesis of innocence that crack cocaine found in defendant's possession was for personal use. The officer's conclusion that the fifty rocks found were for sale to others was not supported by any corroborating facts other than the amount, and the fact that the defendant did not possess any paraphernalia, and the rocks were all in one package.  This is a good summary of the case law in this area.

The Law Offices of Roger P. Foley, P.A.

Monday, November 7, 2011

Law Updates for October 28, 2011

Perez, 36 FLW 2288, 2nd DCA, Limitation of actions - Trial Court properly dismissed grand theft charge where capias was issued within limitation period but not executed until eight years after the offense, when earlier than when the information was filed.

Baynham, 36 FLW 2291, 4th DCA, Speedy trial - Error to find that speedy trial period commenced on date defendant was taken into custody for acts of using a false name and riding bike without a light.  Trial Court misapplied "criminal episode" standard of speedy trial rule by placing greater emphasis on ongoing investigation of police, than actions of defendant. Delivery earlier same day of arrest but not charged for that offense for a year.

Dorsey, 36 FLW 2299, 4th DCA, Jury instruction, Stand your Ground Law - Trial Court erred in instructing jury on the stand your ground law,  rejecting defendant's proposed instruction, where there was evidence that defendant was engaged in an unlawful activity at the time of the shooting that adequately addressed the scope of the duty to retreat in these cases and was a correct statement of the law, not misleading or confusing.

Lanzo, 36 FLW 2335, 5th DCA, Burglary dwelling - Error to give stealth instruction after victim came home to see defendant in open garage during the day holding the victim's bicycle.  Error to permit stealth instruction where the defendant was seen in an open garage, in daylight hours, in full view of any passerby.  There was no evidence that defendant approached the home in a furtive manner.  Defendant left the garage by simply walking  down the street, and defendant readily spoke with the victim and the officer.

Price, 36 FLW 2343. 2nd DCA, "Under color of office doctrine", Officer did not violate color of office doctrine where officer could have made a citizen stop, where defendant's erratic driving was observable by any private citizen on the interstate, and the defendant's conduct amounted to a breach of the peace.  Officer did not use the power of his office to observe unlawful activity or gain access to evidence not available to a lawful citizen.

The Law Offices of Roger P. Foley, P.A.