Thursday, June 23, 2011

Law Updates for June 17, 2011

A.L.T., 36 FLW 1203, 4th DCA, Exceed scope of consent - Asked juvenile if he could search juvenile for weapons or drugs and then went through his wallet without further consent, finding an ID card of an elderly women whose home the juvenile later confessed to burglarizing.  Reasonable person would understand that the consent to search would constitute an agreement to only search for weapons or drugs.

Evans, 36 FLW 1205, 4th DCA, Prosecutorial Misconduct - Fundamental Error - State argument implied tampering by a witness without any evidence and of improper contact by that witness.  "they had three weeks to think of something and that they concocted their story."

Wheeler, 36 FLW 1239, 5th DCA, Search and Seizure-Vehicle-Curtilage - Where search warrant of a residence authorized search of any vehicle located within the resident's curtilage, search of defendant's car not authorized where the car was partially overlapping the portion of the driveway outside the chainlink fence surrounding the residence on but was not blocking ingress and egress to the property.  The fact that the homeowner chose to enclose the yard with a fence and defendant's vehicle was parked outside the fence is the most compelling factor.

Diaz, 36 FLW 1242, 5th DCA, hearsay - Error for trial court to admit testimony regarding an anonymous tip to police identifying defendant as a suspect where person who tipped off the police never testified at trial and testimony regarding the anonymous tip was excluded prior to trial with a motion in limine.  Non-testifying witness furnished the police with testimony of the defendant's guilt.  It is hearsay and not harmless beyond a reasonable doubt.  Evidence of the defendant's guilt was not overwhelming where victim could not identify defendant from surveillance video and did not mention prominent mole on defendant's face.

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

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