Jacksonville Criminal Defense Attorney Blog

Don’t Talk to the Police in Your Sex Crime Case

Published on: February 9, 2020 | by Roelke Law, P.A.

In November 2017 I blogged on the topic of talking to the police. In that blog, I explained it’s rarely advisable to speak with the police about your criminal case. Regardless of whether you’ve yet been arrested, it’s usually in your best interest to remain silent and to not talk with the police until you’ve consulted with your lawyer. Some recent arrests underscore why you shouldn’t talk with the police in connection with your sex crime case.

Seventeen men ranging in age from 19 to 77, including two Disney employees and a former middle school principal, were arrested in November 2019 in connection with a child pornography investigation in Polk County, Florida. The operation, called “Guardians of Innocence IV: Fall Haul 2019,” was conducted by undercover detectives and a computer crimes team. Many of the arrests resulted from referrals from the National Center for Missing and Exploited Children.

Among those arrested was Brett Kinney, aged 40. Mr. Kinney was a guest experience manager at Disney World, where he had worked for the last 15 years. Kinney was charged with 24 counts of possession of child pornography. Mr. Kinney told the officers he was addicted to child pornography and had been viewing it for 22 years.

While Mr. Kinney might have thought his comments to the police might help him, instead they most likely harmed his case. His statements indicate he had a very long-term child pornography addiction which, due to its two decade duration, would be difficult to treat. Because of his long-term pornography addiction, the prosecutor and/or the judge in Mr. Kinney’s case would be very concerned about his risk of reoffending after his arrest. To manage the risk of Mr. Kinney reoffending, they would be inclined to seek a lengthier prison and probationary term than if he were at a lower risk of reoffending. So, Mr. Kinney’s well-intended statement to police provided a basis for a longer prison term in his case. Continue reading

Anonymous Tips Often Don’t Justify You Being Stopped by the Police

Published on: January 27, 2020 | by Roelke Law, P.A.

Were you arrested based on an anonymous tip? If so, your stop by the officers may have been unlawful and you may be able to get your case dropped.

The Fourth Amendment to the United States Constitution and its Florida analog establish the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” absent a warrant or a judicially-recognized exception. A police officer therefore may temporarily detain you only if he has a reasonable suspicion you have committed, are committing, or are about to commit a crime. To avoid a Fourth Amendment violation, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. A hunch or mere suspicion that you’re engaging in criminal activity is insufficient to support a stop.

Reasonable suspicion, in turn, depends on both the content of information possessed by police and its reliability. Both factors—quantity and quality—are considered in the totality of the circumstances—the whole picture to be considered when evaluating whether there is reasonable suspicion.

Assessing the constitutionality of an investigatory stop requires two-steps. First, the facts leading up to the search must be identified. Secondly, it must be determined whether those facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion of criminal activity to justify a stop. Reasonableness is measured in objective terms by examining the totality of the circumstances. The subjective intentions of the officers is irrelevant.

If you were stopped based on an anonymous tip, the critical issue is whether the limited information the officers were provided, along with your conduct, meets the constitutional standard for an investigatory detention. In other words, the key question is whether the detaining officers had a well-founded and reasonable suspicion that you had committed or were about to commit a crime sufficient to justify your immediate detention. Continue reading

Domestic Violence Injunctions Will Be More Difficult to Obtain in 2020

Published on: January 17, 2020 | by Roelke Law, P.A.

In past blogs I’ve discussed the strict requirements for obtaining an Injunction for Protection against Domestic Violence. A decision from the First District Court of Appeal today in Hart v. Griffis indicates injunctions will be tougher to obtain as we go forward into this new year.

Griffis involved a former wife and former husband who were married with five minor children. The former husband happened to be a state circuit court judge at the time. The couple divorced in May 2013, but shared parental responsibility.

In the summer of 2018, the parties agreed for their children to attend school in Gilchrist County. Shortly thereafter, however, the former wife objected to the arrangement. A family court judge then ordered the children to remain enrolled in Gilchrist County.

The judge / former husband later filed a Petition for Injunction for Protection Against Domestic Violence, claiming the former wife committed or threatened to commit domestic violence. After an evidentiary hearing, the trial court found the former husband was a victim of domestic violence or had reasonable cause to believe he was in imminent danger of becoming a victim by the former wife. The trial court also found the former wife’s past conduct was intentional and willful with the intent to cause the judge/ former husband to be removed from office or to be subject to disciplinary proceedings that could impair his ability to remain on the bench. The trial court therefore granted the petition for injunction. The former wife appealed. Continue reading

Not All of Your Bad Acts Can be Used Against You

Published on: November 27, 2019 | by Roelke Law, P.A.

A recent decision by the First District Court of Appeal makes it clear the prosecutor generally cannot use other bad acts you may have committed to prove you did the act for which you are currently being prosecuted.

In Stephen Trahan v. State, while parked in his driveway the victim’s truck was broken into, ransacked and his backpack stolen. A few days later, the victim happened to see Mr. Trahan walking through his neighborhood with what appeared to be his stolen backpack. He confronted Trahan and demanded he hand over the backpack. The police were summoned, and a subsequent investigation ultimately resulted in Trahan’s arrest on burglary charges.

As the case progressed, the victim’s ownership of the backpack became the dispositive factual issue. If proven, it would be the link between Trahan and the vehicle burglary. During the trial, the State introduced evidence that when Trahan was arrested, a checkbook belonging to a third party with no connection to the burglary was found inside the backpack. Trahan’s lawyer objected to the admission of this evidence. The trial court nonetheless admitted it, and Trahan was found guilty.

Domestic Violence Injunction Requires Recent Conduct

Published on: November 21, 2019 | by Roelke Law, P.A.

Has a Petition for Protection against Domestic Violence been filed alleging you did something to warrant issuance of an injunction? If the allegations don’t show the petitioner is the victim of recent domestic violence or is in imminent danger of becoming a victim of domestic violence, the Petition should be dismissed according to a recent decision by the First District Court of Appeal.

In that case, a mother challenged a domestic violence injunction entered against her at the behest of her daughter. The daughter sought an injunction on behalf of her minor daughter alleging her mother had physically abused the daughter as a child, had attempted to interfere with paternity proceedings involving the minor granddaughter and had involved the Department of Children and Families in unfounded attempts to take the minor child away, and that the grandmother tries to control her adult daughter. The trial court entered a permanent injunction.

The appellate court reversed the injunction on the ground the allegations were legally insufficient to support the entry of a domestic violence injunction. A domestic violence injunction may issue to protect a member of the movant’s family or household “who is either the victim of domestic violence as defined in s. 741.28 or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence.” Florida Statute § 741.30(1)(a). “Domestic violence” is defined as “any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.” Florida Statute § 741.28(2). The appellate court concluded the injunction was improper because there was no evidence that the minor child was the victim of domestic violence or in imminent danger of becoming a victim. Continue reading

Significance of a Green Tongue in a DUI Arrest

Published on: November 14, 2019 | by Roelke Law, P.A.

Driving under the influence (DUI) is a criminal offense in Florida. The offense is proved by impairment of “normal faculties” by drugs or alcohol and/or by an unlawful breath or blood alcohol level of 0.08 or above. Impairment of normal faculties by alcohol can be determined by testing blood, breath or urine. But it is much more difficult to determine impairment of normal faculties by marijuana or other drugs.

Currently in Florida, there is no definitive way, like a blood or breath test, to determine marijuana intoxication. Rather, the only way to determine whether someone’s normal faculties are impaired by marijuana is to assess whether they possess their normal faculties. Normal faculties includes the ability to perform the many mental and physical activities of daily life, such as walking, talking, seeing, hearing, driving and making judgments. Normal faculties are normally assessed in Florida DUI cases via the administration of roadside tests known as field sobriety exercises (FSEs).

In addition to administering FSEs, officers commonly note certain physical observations such as blood shot, watery eyes, pupil dilation, facial flushing, and speech slurring to bolster their conclusion someone’s normal faculties are impaired. And, in some marijuana-based DUI cases, officers across the United States are alleging that people who’ve recently smoked marijuana have green tongues. In fact, law enforcement officers are instructed to look for a “possible green coating” in one world-wide specialized training program. Continue reading

Woman Arrested for DUI Hadn’t Been Drinking Recently

Published on: November 4, 2019 | by Roelke Law, P.A.

Most driving under the influence (DUI) cases begin the same way. You’re pulled over by the police for a traffic infraction such as speeding, failing to maintain a single lane or for a license tag or tail light violation. The officer approaches your car and asks for your driver’s license, vehicle registration and insurance card.

The officer then notes you purportedly have bloodshot, watery eyes and the odor of an alcoholic beverage on your breath. But you haven’t had anything to drink, or if you did, it wasn’t enough to make you impaired.

You’re then asked to perform some roadside sobriety exercises. Feeling confident, you agree. Despite doing pretty well, however, the officer says you failed. You’re then handcuffed and taken to jail. At the jail you agree to take a breath test. To your surprise, your result is above the legal limit of 0.08. Case closed, right? Not so fast! Continue reading

Judge Says Police Claiming to Smell Marijuana Are Liars

Published on: October 7, 2019 | by Roelke Law, P.A.

Did the police justify their search of your vehicle by claiming they detected the odor of marijuana? If they did and there was in fact no marijuana smoked or recently in your car, your lawyer may be able to question their credibility based on a New York judge’s recent comments reported in The New York Times.

As in Florida, courts in New York have long held an officer may effect a warrantless search of a car and its occupants if they smell marijuana coming from the vehicle. But in late July of this year, a judge in the Bronx said officers base vehicle searches on the smell of marijuana too often to be believed. And, the judge has urged her fellow jurists across the state to stop letting police officers get away with lying about smelling marijuana as an excuse to search a vehicle.

“The time has come to reject the canard of marijuana emanating from nearly every vehicle subject to a traffic stop,” Judge April Newbauer wrote in a decision in a case involving a gun the police discovered in car they had searched after claiming to have smelled marijuana. She added, “So ubiquitous has police testimony about odors from cars become that it should be subject to a heightened level of scrutiny if it is to supply the grounds for a search.” Continue reading

Probation Officer’s Hearsay Testimony Insufficient to Prove You Violated Your Probation

Published on: September 22, 2019 | by Roelke Law, P.A.

Has your Probation Officer either threatened to violate, or actually violated, your probation? If so, there are many ways a knowledgeable Jacksonville criminal defense lawyer can help prevent, or substantially reduce, any adverse effects on you. A recent case from the First District Court of Appeal provides one example.

Jalyn Viriginia Brownsworth plead no contest to grand theft and was sentenced to 24 months of probation. Shortly after imposition of sentence, her probation officer filed an affidavit of violation of probation alleging Jalyn had failed to submit to undergo a required drug/alcohol evaluation.

At the revocation hearing, Jalyn’s probation officer testified she had been scheduled for an evaluation that later required rescheduling. The probation officer further testified that when she later contacted the evaluation facility staff, she was told Jalyn failed to attend the rescheduled appointment. Based on Jalyn’s purported failure to attend the rescheduled evaluation as related by the probation officer, the trial court found Jalyn to have violated her probation. Jalyn appealed. Continue reading

Recordings Made Without Your Permission Sometimes May Be Used Against You

Published on: September 15, 2019 | by Roelke Law, P.A.

Many people believe if someone records them without their permission, the recording cannot be used in court. A recent decision by the First District Court of Appeal, however, shows that is not always the case.

Corey Smiley was invited to the home of the women with whom he shared a two year old child. While there Smiley and the woman got into an argument. The woman recorded the argument on her cell phone. The video depicted Smiley questioning the woman about the video and repeatedly trying to grab her phone. It further showed Smiley shoving the woman and threatening to shoot her and their child. The woman asked Smiley to leave her home several times. The woman claimed after the recording ended Smiley brandished a gun. She then fled with their child.

Smiley was arrested and charged with aggravated assault by threat with a deadly weapon and domestic violence battery. Smiley subsequently sought to exclude the cell-phone video on the ground it had been illegally recorded without his consent. The trial court denied his request and admitted the video at his trial. Smiley was convicted of the charges. Continue reading