Law Updates for July 9, 2010

Caldwell, 35 FLW 425, Fla. Supreme Court, Miranda. An officer's reading of Miranda during a otherwise consensual search does not always transfer the consensual encounter into an investigatory stop. Reading of Miranda may add to the coercive nature of the encounter sometimes and must be decided on a case by case basis. In this case does not convert the consensual encounter into a seizure. Def not seized before voluntarily entered a police vehicle; confession not a product of an illegal detention.

Gomez, 35 FLW 432, Fla. Supreme Court, Forefeiture, Probable Cause. Seizing property initially does not require that the owner knew, or should have known after reasonable inquiry, that property was employed or likely to be employed in criminal activity.

Tindall, 35 FLW 1449, 4th DCA, Error to adjudicate def guilty of two counts of aggravated kidnapping where charges were based on movement of child victims of sexual battery from front door of the house to a bedroom where the sexual battery occurred and victims were held in the room for as the long as the crime occurred and then released.

Hill, 35 FLW 1455, 3rd DCA, Consent-Investigatory stop. Where one ofc positioned his vehicle directly in front of the def and pointed the vehicle's spotlight on the def, another ofc approached def on foot in a manner that indicated a sense of urgency, and immediately thereafter two other officers joined at the scene. Investigatory stop and not a consensual encounter, no reasonable suspicion of criminal activity, def's consent to search during the stop while the ofc retained his license to run a warrants check was not voluntary.

Lowe, 35 FLW 1463, 5th DCA, Lewd and Lascivious exhibition. Def's actions of placing a dildo in his mouth in the presence of a seven year old child does not constitute sexual activity within the statutory definition. Definition of sexual activity in the statute does not include the simulation of oral sex with an object. Error to deny the motion to dismiss the information.

Downs, 35 FLW 1465, 5th DCA, Sexual Battery on a child, Uncharged crimes. Def was charged with digital penetration of a child. Error to admit evidence of later incidents in which the def came into the bathroom while the victim showered and touched her inappropriately. Not admissible that was inexplicably intertwined with charged crime when two years after the charged crime. Not admissible as separate crime or acts of child molestation where the def had not been given notice of evidence the State intended to offer.


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

Law Update for July 2, 2010

Gonzalez and Garcia, 35 FLW 1402, 2nd DCA, Search warrant - Facts as alleged in pc affidavit, which reference uncorroborated tip that the def's were allegedly growing marijuana and selling cocaine, failed to demonstrate reasonable probability that contraband would be found in the residence at the time the warrant was issued. Info contained in the tip was received more than 3 months before warrant issued was stale. Def possession of one gram of cocaine on her person during a traffic stop did not suggest a fair probability that the def was selling cocaine from her home. Good faith exception to warrant requirement does not apply where objectively reasonable officer would have known affidavit was insufficient to establish probable cause.


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

Roger P. Foley Named Legal Elite by Florida Trend Magazine

FOR IMMEDIATE RELEASE:

Roger P. Foley Named Legal Elite by Florida Trend Magazine

Fort Lauderdale, Florida - July 8, 2010 – The Law Offices of Roger P. Foley, P.A. is pleased to announce that Mr. Roger P. Foley has been named to Florida Trend magazine's 2010 Legal Elite list which recognizes the top tier of attorneys practicing in Florida as chosen by their colleagues.

Balloting for this year’s list began in October 2009, when Florida Trend invited all in-state members of The Florida Bar to participate. Announcements in The Florida Bar News publicized the ballot deadline and voting guidelines. Lawyers were asked to name attorneys whom they hold in the highest regard or would recommend to others.

The ballots were processed, checked and tabulated by Bradenton-based Outsource America and Suncoast Opinion Surveys in St. Petersburg. Each lawyer was given a score based on the number of votes received: one point for votes from within their firm or three points for votes from outside their firm. Only lawyers who are currently licensed and practicing in Florida were eligible for selection.

The list of top vote recipients was further examined using membership status and histories provided by The Florida Bar. A panel of previous Legal Elite winners, representing different practice areas in cities across the state, reviewed the selection process and the list of finalists.

The Legal Elite Award is given to less than 2% of the active, practicing lawyers in the State of Florida.

Contact:
Arthur James
arthur@rpfoley.com
Law Offices of Roger P. Foley, P.A.
524 South Andrews Avenue, Suite 200N
Fort Lauderdale, Florida 33301
Ph 954-467-2946

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Law Updates for June 25, 2010

Yaqubie, 35 FLW 1342, 3rd DCA, Immunity/Stand your ground law. Error to treat def's immunity claim as an affirmative defense and to deny motion to dismiss because material facts were at issue. Statute is true immunity provision which requires the trial court to adjudicate disputed fact issues rather than passing them on to the jury. Remand for the court to determine if def's immunity claim is supported by the preponderance of the evidence.
N.B. There is conflict in this state on this issue, and the 4th does not follow the 3rd DCA opinion. This isssue is on appeal right now to the Florida Supreme Court in Dennis v. State.


Link to the ACLU Summary of the 2009 Supreme Court Term


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

Law Updates for June 18, 2010

Vice, 35 FLW 1273, 1st DCA. Aggravated Child Abuse - error to admit testimony of def's former husband and former mother-in-law regarding their observations of the def shaking a different child 6 years earlier without injuring the child, where the evidence was not relevant to any material fact at issue in which this infant sustained injuries formerly said to characterize Shaken Baby Syndrome. Paucity of evidence; reasonable possibility that this evidence contributed to the conviction.


T.M., 35 FLW 1290, 4TH DCA, Pat down of juvenile during an investigatory stop was unwarranted and illegal. No facts or circumstances to warrant the pat down for officer who safety-stopped juvenile in high crime area at 11 a.m. based on suspicion they were unlawfully missing school or were about to commit a burglary or drug sale. Officer admitted the answers they gave dispelled any concern related to crimes. Ofc did not observe any bulges that resembled a weapon near the waistline where juvenile was moving his hands. Juv did not attempt to grab anything from his pockets and ofc had no info linking to juvenile criminal activity involving a weapon.


Dixon, 35 FLW 1298, 4th DCA, Warrant-less entry into a home. Police entered the apt without consent and without exigent circumstances to justify the entry. Failure to protest the entry did not constitute consent to enter. Ofc had duty to investigate a 911 call until he was reasonably satisfied that no urgency existed or once urgent situation was no longer urgent. Exigency dissipated once ofc received the official description of robbery from the victim, who was out of harm's way and thereafter the conversation occurred at the apartment door.

Shelden, 35 FLW 1316, 2nd DCA, Corpus delicti - Trial court erred in admitting def's statement to police where the state failed to prove C.D. State's evidence showed a firearm was discharged inside def's home. No evidence apart from the def's statements that the shots were fired wantonly and maliciously.



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

Law Updates for June 11, 2010

Ferrey. 35 FLW 1242, 3rd DCA. Hearsay - Court was correct to order a new trial where the victim and the detective referred to the victim's neighbor, a non-testifying witness. Statements of the non-testifying witness inferred that the witness had observed the defendant. The defendant's right to confront the witness was violated. The error was pervasive court; did not abuse discretion in ordering a new trial.

McNeal, 35 FLW 1261, 2nd DCA, Fact that the dog had been trained and certified, "standing" alone is insufficient to give officers probable cause to search based on dog's alert. Trial court must consider other factors, including dog's past performance in the field.


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

Law Updates for June 4, 2010

Blair, 35 FLW 311, Fla., Error for the court to order pretrial detention based on def's failure to appear without finding that the failure to appear was willful and without determining whether conditions of release were appropriate as delineated in 907.041.

Miller, 35 FLW 1177, 4th DCA, Jury instructions - Trial court erred in refusing to give requested instruction on affirmative defense of lack of knowledge that substance he possessed was cocaine where def presented some evidence in support of defense.

Gestewitz, 35 FLW 177, 4th DCA, Police unlawfully detained the def outside of a bar after an argument with a bartender for the purpose of issuing a written trespass warning. Officer had no lawful purpose to detain the defendant because at the time he was detained there was no reasonable suspicion that the def committed the crime of trespass and the warning is a prerequisite of the crime. Def should have been given a verbal warning and allowed to leave with a friend.

Gonzalez-Ramos, 35 FLW 1203, 5th DCA, Trial court lacked jurisdiction to find the def in violation of probation where affidavit was filed and warrant issued after the term of probation expired. Probationary term was NOT tolled for the period of time between the issuance of the warrant and hearing on two prior violations where trial court did not extend the term of probation each time he violated, but simply continued(reinstated) the probation.


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