Law Updates for October 16, 2009

Aldin, 34 FLW 2046, 3rd DCA, search and seizure/consent - Where the def signed a form consenting to a search of the apt, but crossed out a part where it included a search of his vehicle. Search of def vehicle after towed to the police station was illegal. No valid consent and no search warrant. Not valid as a vehicle search incident to def's recent arrest. Tool boxes and gloves not admissible under inevitable discovery rule. Harmless error

Hardin, 34 FLW 2080, 2nd DCA, Trafficking in cocaine/search and seizure - Under totality of circumstances, def wife did not voluntarily consent to hand over to the officers a purse containing cocaine which she had concealed under the sheets of the bed, where three deputies, two of them male, were present in the room, and where the wife was naked under the sheets. Ofc advised def and wife at the outset they were looking for drugs, and ofcs, after a fruitless search of the motel room, had repeatedly told the wife that he knew she had drugs and promised her she would not charged if she cooperated. Although initial knock and talk were okay, continuing the encounter in the intimidating manner suggested by the record for at least an hour, and after two fruitless searches, exceeded the bounds of consent. Women consented to one women deputy to enter the room. No evidence she consented to the subsequent entry of two male deputies. Fact that car and license plate from an area that ofcs considered high in narcotic activity and difference between names on hotel registration and on license did not give reasonable belief that drug activity was afoot.



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

Law Updates for October 9, 2009

Light, 34 FLW 1974, 1st DCA. - Error to deny motion to suppress confession which was obtained through promises to the def. Confession not voluntary where ofc told def he could go home that day no matter what he said, and ofc misrepresented the law concerning the age of consent to def so he felt he was doing nothing wrong when he made admissions to the officer.

Roopnarine, 34 FLW 1982, 4th DCA - Error to exclude exculpatory witness based on def discovery violation where prejudice to state could be cured by another remedy short of excluding the witness. State alleged prejudice would be outnumbered on witnesses. State's prejudice could be cured by mistrial or continuance. The State right to numerical similarity of witness outweighed by def fundamental right to defend himself. New trial

Delgado, 34 FLW 1985. 3rd DCA-Kidnapping Def properly convicted where def and co-def jumped into pickup truck left running by the driver and drove away with a two year old asleep in the back of the truck. Reasonable to infer from the evidence that def became aware that the child was confined in the truck during the course of removing the radio and stealing other items from the truck. Confinement of child continued to theft of items in the truck and continued confinement was essential to def's attempt to avoid apprehension for theft of vehicle and its contents.

Moreno-Gonzalez, 34 FLW 1991, 3rd DCA, Search warrant supporting affidavit - Trial court erred in suppressing evidence on ground that the ofc did not sign affidavit in support of search warrant, where ofc swore to allegations in affidavit under oath before the judge, initialed each of the pages of the affidavit, and initialed each of the three pages of the search warrant

Battle, 34 FLW 2002, 4th DCA - Error to admit testimony of police ofcs regarding statements of witnesses who were unavailable because they had returned to Mexico. Admission of unavailable witnesses violated Confrontation Clause. Error to admit detectives's opinion testimony regarding def's guilt.

Mitrani/Venticinque, 34 FLW 2015, 5th DCA, Discussion of use/derivative immunity. Trial court erred in denying state motion to compel testimony of witnesses who had been subpoenaed for depos and who declined to testify despite being given use and derivative immunity.



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

Law Updates for October 2, 2009

Brown, 34 FLW 1940, 4th DCA, Rebuttal by prosecutor. State's rebuttal contained references to evidence never admitted at trial and went beyond its function as a reply to def's closing argument: Included a photo never introduced into evidence and mentioned a witness who never testified. Remand for a new trial.




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

Law Updates for September 25, 2009

Hernandez, 34 FLW 1883, 4th DCA, Lewd and Lascivious molestation, Williams Rule evidence - Trial court erroneously applied "light more favorable to the state" standard making multiple Williams Rule violations. New trial required where the only substantial evidence offered to corroborate the victim's version of events was testimony of victim of the prior alleged abuse.

J.J.V., 34 FLW 1890, 4th DCA, exceeding scope of consent: Juvenile consent to search the vehicle did not extend to the search of locked console in the vehicle where deputy asked for the key. Juvenile told deputy that the key was not available and only his mother had the key, and deputy, in spite of that, located the key himself and gained access to the console. Violation of juvenile's expectation of privacy. General consent did not extend to locked console. Juvenile set limits to the consent. Unable to protest held in the back of the officer's vehicle.

Haygood, 34 FLW 1905, 1st DCA, DWLS, evidence. Copy of def's DL record which reflected license was suspended for failure to pay traffic fine on one occasion and for child support delinquencies on two occasions provided notice given but did not list def's address. Insufficient to show that def was aware his license was suspended on date he was arrested. Suspended because of financial obligations. The presumption of knowledge caused by entry in DHSMV records does not apply and state has to prove the defendant actually received notice, Brown, 764/741(4th DCA 2000).

Law Updates for September 11, 2009

Pittman, 34 FLW 1809, 3rd DCA. Lewd and Lascivious. Info charged def with sex battery +12, did not adequately inform the def he would be subject to a conviction of LIO of lewd or lascivious battery, +12 -16. Remand to discharge the def from custody. State's last minute announcement on day of trial they intended to request jury charge on lesser offense clearly prejudiced the defendant and the nature of his defense

Mistral, 34 FLW 1817, 3rd DCA. exigent circumstances. Police received a call about a possible burglary in progress at def's residence, took him into custody in his front yard and conducted a protective sweep of the house. Sweep was illegal police entered the house without consent, exigent or a search warrant. Ofcs entered the house as a routine practice not on the basis of articulable facts that would warrant a reasonable belief that there was any dangerous individual inside whose posed a threat to those on scene.

Cable, 34 FLW 1827, 2nd DCA, knock and announce. Exclusionary rule applies to Florida statutory knock and announce law. Goes further than the U.S. Supreme court case of Hudson v. Michigan, certified to the Florida Supreme Court.



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

Law Updates for September 4, 2009

Nelson, 34 FLW 1743, 4th DCA, A def with a non-drug felony is eligible for alternative sanctions under 948.20. Circuit court erred in finding the def ineligible for an alternative sentence under 948.20 because he had a prior non-drug felony conviction, different than 948.034.

Tedder, 34 FLW 1789, 1st DCA, Def entitled to discharge when info not filed within 175 days of time of arrest. No merit to state contention that def was unavailable for trial because of his incompetency adjudication in a separate case and speedy trial period did not begin to run under rules of 3.191(k).



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

Law Updates for August 28, 2009

Hair, 34 FLW 1669, 1st DCA, Stand your ground law-776.032(1). Denial of motion to dismiss based on issues of disputed fact was incorrect and directly contrary to precedent expressly holding that a Motion to Dismiss based on "Stand your ground" immunity cannot be denied because of the existence of disputed issues of material fact. Victim unlawfully and forcibly entered the vehicle and was still inside the vehicle where he was shot.

McKeown, 34 FLW 1689, 4th DCA, Felony DUI. Error to permit arresting ofc to testify he only arrests one-half of the DUI suspects he investigates. Error compounded when the prosecutor mentioned during closing argument. Error not harmless where def presented ample evidence to contradict the state's theory that the def was impaired by alcohol.

Byers, 34 FLW 1707, 2nd DCA, Trafficking in methamphetamine. Error to deny JOA for trafficking based on constructive possession. Def did not have dominion and control over backpack found in passenger side of the floorboard of vehicle during a consensual search, but established def only knew the drugs were in the car he drove to the motel and def knew a second man was going to sell the drugs and def agreed to drive a man to the motel in exchange for a small amount of the drug.




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