Law Updates, May 1, 2009

Youngblood, 34 FLW 817, 2nd DCA, Error to deny motion to suppress statements made by def during videotaped interrogation by law enforcement where ofcs did not cease communication with the def and he unequivocally invoked his right to counsel. Police continued on a course designed to convince him to reconsider his invocation of his constitutional rights in order to protect his girlfriend.

Ortiz, 34 FLW 829, 5th DCA, EXIGENT CIRCUMSTANCES, Residence, warrant-less entry into def's home and subsequent seizure of cocaine and drug paraphernalia were improper where ofc had been informed by a local elementary school that six year old's parents failed to pick him up from school and school could not contact his parents by phone. Ofc drove child to home address, no lights were on in the house and no one answered when child knocked on the front door. No car was in the driveway and nothing was amiss. Ofc lacked reasonable basis to believe that grave emergency existed that it made imperative that he enter the house without a warrant
-CONSENT- Assuming that six year-old child had the authority to consent to ofc's entry into common areas of the home, record failed to establish that child could validly consent to entry of locked master bedroom where contraband was found, and nothing in the record demonstrates that once at the locked bedroom door, any exigency was apparent that authorized the officer to enter the bedroom. Court is unwilling to adopt community care taking exception in case of residential searches

Finney, 34 FLW 841, 2nd DCA, County court erred in sentencing def to jail for VOP where original plea that led to probation was without counsel and def did not waive his right to counsel. Indigent def was entitled to counsel unless court entered a written order of no incarceration. Could not impose jail for original charges, could not impose for VOP. Def did not waive right to counsel by signing deficient plea form. Plea form was deficient: provided misleading impression that indigent def lacks right to counsel so long as trial judge is not currently considering jail sentence as an appropriate sentence







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

Law Updates for April 24, 2009

Seavey, 34 FLW 762, 2nd DCA, L & L molestation. Collateral crimes were admissible even though they were 16 to 25 years ago - became of feature of the trial - state's use of collateral crimes during opening and closing arguments to argue the def committed the charged crime because he was a sexual predator, when considered in conjunction with prejudicial nature of collateral evidence, evidence impermissibly a feature of the trial

Brown, 34 FLW 773, 4th DCA, Poss of Xanax, constructive possession - error deny JOA where xanax was found in the center console of the vehicle jointly occupied by the def and another person - evidence that the def was nervous, he agreed to sell crack cocaine to an informant, and def closed the center console was insufficient to prove def's guilty knowledge

Brown, 34 FLW 786, 2nd DCA, Trafficking in cocaine-evidence insufficient to establish def's constructive possession of cocaine found in kitchen drawer of jointly occupied premises where the state did not establish the drugs were in the drawer were in plain view or present independent proof that def had knowledge of cocaine in the drawer - fact that other drugs were in plain view did not permit an inference that def knew cocaine was in the kitchen drawer, ofcs who served the search warrant saw cocaine in plain view on dining room table was not submitted for testing or introduced in trial - police could not prove that def possessed the only cocaine tested and introduced into evidence, could not be convicted of any cocaine possession - JOA as to the Trafficking charge





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