Monday, May 2, 2011

Law Updates for April 22, 2011

Harris, 36 FLW 163, Fla, (another dog sniff case)  To meet the State's burden of probable cause to search a vehicle after a dog alert the State must show that the officer had a reasonable basis to believe the dog was reliable under the totality of circumstances standard.  To meet this burden the State must present the meaning of the particular training of the dog, field performance records, and evidence concerning the experience and training of the officer handling the dog, as well as any objective evidence known to the officer about the dog's reliability in being able to detect the presence of illegal substances within the vehicle.  Evidence that the dog has been trained and certified to detect narcotics, standing alone, is not sufficient to establish the dog's reliability for purposes of determining probable cause.

McCloud, 36 FLW 777, 4th DCA, Refusal to give LIO instruction for trespass where all elements of offense in charging document and evidence supported those elements.  Failure to instruct on offense one step removed reversible error.

Browning, 36 FLW 787, 1st DCA, Kidnapping.  Victim passenger in vehicle.  Defendant fled from police before arrested.  Detention of victim during commission of crime kidnapping, keeping victim in car against will, and driving off not incidental to crime of fleeing and eluding, consequential and substantial.  Victim forcibly removed from convenience store and from company of his friend, fleeing with victim in car made defendant's flight more likely to succeed as opposed to ordering victim to get out and waiting a few seconds for him to do it.

Montijo, 36 FLW 796, 5th DCA, In instructing jury on self-defense, justifiable use of deadly force, it was error to shift the burden to defendant to establish beyond a reasonable doubt that the victim was attempting to commit an aggravated battery on the defendant.  Burden never shifts to the defense to prove self-defense beyond a reasonable doubt.

Murphy, III v. Lamberti, 36 FLW 801, 4th DCA, trial court improperly revoked defendant's bond without finding that "no conditions of release can reasonably protect the community from risk of physical harm to persons or assure the presence of the accused at trial."  Trial court is not allowed to deny release solely on a finding that the defendant violated a condition of bond.

Dawson, 36 FLW 804, 2nd DCA, Pat down unlawful.  Officers did not have reasonable suspicion that the defendant was armed with a dangerous weapon.  Defendant stopped while walking along the highway, failed to comply with officer's requests to keep his hands out of his pocket was insufficient to establish reasonable suspicion where officers did not see any weapons or notice any bulges in defendant's clothing that would indicate he was carrying a weapon.

Sanchez-Andujar, 36 FLW 808, 1st DCA, Alibi witness.  Trial court erred in rejecting less restrictive measures and excluding defendant's alibi witness who had not been timely disclosed.  State did not trigger any defense obligation by filing written demand for notice of intention to claim alibi.  Exclusion of defense witness is not harmless error beyond a reasonable doubt that witness testimony could not have proved a reasonable doubt in minds of jurors sufficient to tip the scales in favor of am acquittal. Martin 41 So. 2d 1100(4th DCA 2010

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

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