Tuesday, August 3, 2010

Law Updates for July 30, 2010

Ferguson, 35 FLW 1612, 2nd DCA, Loitering & Prowling - Officer did not have probable cause to arrest the defendant, although engaged in unusual behavior. Defendant stopped when asked to do so by the officer, provided proof of identity, and where he lived, and explained he was in the area to visit a friend. The friend confirmed identity and said not unusual for him to visit her. Suspicious actions do not effect determination of probable cause. To believe Loitering & Prowling that offense must be complete before any police action occurs.

Pulcini, 35 FLW 1620, 4th DCA Unlawful sexual activity with minors, other crimes, wrongs or acts - Abuse of discretion to admit collateral crime evidence relating to acts that occurred 19 or 20 years before and involved a twelve year old child where collateral acts did not share sufficient points of similarity with charged crime to be admissible. Error not harmless where case boiled down to credibility of the victim's testimony contradicted by two defense witnesses and uncorroborated by any physical evidence, and state highlighted the improperly admitted evidence in closing argument.

Johnson, 35 FLW 1628, 4th DCA, Lewd or Lascivious battery - defendant was 37 and 13 year old girl - Trial court erred by admitting evidence the victim twice attempted to commit suicide after relationship was revealed and defendant was arrested. Error not harmless probative value outweighed by unfair prejudice. New trial.

*******, 35 FLW 1652, 2nd DCA, Pharmacy records - Trial court applied wrong statute when it suppressed prescription records obtained from pharmacy without subpoena or consent of patient. 456.057 applies to health care practitioners and excludes pharmacies and pharmacists. Standing error to fail to address state's claim that defendant did not have an expectation of privacy in prescription records as they were fake. On remand court should make a ruling of reasonable expectation of privacy in the prescriptions.

T.T.N, 35 flw 1653, 2nd DCA, Police stop outside of his jurisdiction - Municipal officers initiated a traffic stop, driver fled on foot, remaining passengers drove away in the vehicle. Fleeing driver apprehended and arrested, officer did not have jurisdiction to initiate an investigation at the vehicle's registered address in a different city. No evidence that juvenile was involved or about to be involved in crime at the time the officers arrived at the address of the vehicle's registered owner. Juvenile's attempt to run away was not sufficient to justify an investigatory stop. Trial court erred in stating that even if stop was unlawful, tube of cocaine dropped when officer approached was voluntarily abandoned. Officer's testimony showed that child submitted to the officer's authority after he was ordered to show his hands, and tube fell from juvenile's body.

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

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