Wednesday, May 5, 2010

Law Updates for April 30, 2010

S.D.T. 35 FLW 879, 4th DCA, BOLO - Contents of BOLO Dispatch received by arresting officer were non-hearsay and were admissible to establish an element of the crime of resisting arrest without violence. BOLO not offered to prove the truth of its contents, but to establish the officer was engaged in the lawful execution of a legal duty when he commanded the juvenile to stop and the juvenile fled.

E.L.F., 35 FLW 883, 4th DCA, Self-defense - Error to deny JOA where juvenile presented evidence that he became involved in altercation as Good Samaritan when he attempted to stop the male victim from striking a woman, and that he acted in self-defense after victim began swinging at him and state's testimony was legally insufficient to rebut the testimony that the juvenile was acting in self-defense.

WHITFIELD, 35 FLW 915, 5th DCA, Automobile stop - Prolonged detention in writing citation after traffic stop for speeding - Error to deny motion to suppress drugs which were discovered when dog alerted on vehicle, where the officer detained the defendant for almost 30 minutes before issuing the citation, and dog search did not begin until after the citation had been issued and the purpose of the traffic stop was completed. Absent an articulable suspicion of criminal activity, the time the officer takes to issue the citation should last no longer than is necessary to make any required license or registration checks and write the citation. Completed traffic stop cannot be extended to conduct a dog sniff search, even if the delay is de minimis. WELL WRITTEN OPINION

Riles, 35 FLW 930, 1st DCA, Robbery - Trial judge should have given request for a special instruction for the "afterthought" defense. Force was done as to another offense and not the theft offense which was completed.

Nicholson, 35 FLW 931, 1st DCA, Trafficking in Hydrocodone, Constructive possession - State failed to prove, through circumstantial evidence or otherwise, that def knew the hydrocodone was hidden in a leather change purse on the living room coffee table next to the couch where defendant, his brother, and their girlfriends were sitting, even though leather change purse was in plain view. No record of evidence that the incriminating nature of the packaged contraband was immediately apparent. Requirement of plain view analysis.

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

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