Jacksonville Criminal Defense Attorney Blog

Carrying A Concealed Weapon Is Now More Difficult For The State To Prove

Published on: June 15, 2020 | by Roelke Law, P.A.

The First District Court of Appeal just made it more difficult for the State to prove you committed the crime of carrying a concealed weapon. In Stanley John Kilburn v. State of Florida, Mr. Kilburn was charged with carrying a concealed weapon. Kilburn filed a motion to suppress, contending he was illegally searched. The trial court denied his motion. Kilburn then pleaded no contest to the charge while preserving his right to appeal the trial court’s denial of his motion to suppress.

At the hearing on Kilburn’s motion to suppress, Deputy Beach of the Escambia County Sheriff’s Office testified when was patrolling a hotel parking lot one morning, he noticed a pickup truck parked with the driver’s door open. He also noticed the truck had a cloudy license plate cover.

Deputy Beach parked and approached the truck to discuss the license plate cover with Kilburn and to give him a verbal warning about the license plate cover. Deputy Beach testified he “was just going to have a talk, it wasn’t — it really wasn’t even investigatory at that point.” Continue reading

Early Release and ROR Bonds Available to Avoid Coronavirus Exposure in Jail

Published on: March 24, 2020 | by Roelke Law, P.A.

Is someone you know or love currently in a Jacksonville area jail? If so, they may be eligible for immediate resolution of their case and release from the jail due to the coronavirus. And, even if their case can’t quickly be resolved, they may be eligible for an ROR bond or other nonmonetary conditions of release so they can be immediately released from jail.

On March 20, 2020, the Office of the State Attorney for the Fourth Judicial Circuit, encompassing Nassau, Clay and Duval counties issued a memorandum acknowledging its responsibility to assist with containing the spread of the coronavirus to its staff, corrections officers, civilian jail employees, court staff and the overall inmate jail population in those counties. The State Attorney recognized “[e]very individual, business, and public agency has a duty to help flatten the curve of this pandemic’s growth. Criminal justice agencies are no exception.” Critically, the State Attorney announced to limit the spread of the virus it was temporarily implementing strategies “[t]o safely reduce the jail population, which from a public health perspective, includes some of the most at-risk individuals in our community.”

Therefore, effective immediately, and continuing for an as yet unspecified time, the State Attorney has implemented the following new policies and procedures in criminal cases pending in the Fourth Judicial Circuit. First, the State has implemented an expedited case resolution procedure for inmates currently serving their sentence in jail for non-violent misdemeanors or felonies. For those inmates, a review will be conducted to determine whether they present a danger to the community. If they do not, then absent objection of any victims, those inmates are eligible for a time served or probation sentence and immediate release from the jail. Continue reading

Warrants Based on Suspicions or Conclusions Are Insufficient to Search Your Home

Published on: February 24, 2020 | by Roelke Law, P.A.

Were drugs, illegal firearms or other contraband discovered during a warrant-based search of your home? No matter what the police found, you may be able to get your case dropped.

Searches based on warrants are preferred over warrantless searches by the courts. That’s because the grounds for the warrant are first reviewed by a judge before the warrant is issued. That review makes it more likely any search of your home does not violate your Fourth Amendment right to be free of unreasonable searches than if the police proceed with a warrantless search.

But just because the police searched your home pursuant to a warrant doesn’t guarantee they can use all of the evidence obtained in that search to convict you of a crime. A recent case decided just this month explains why. Continue reading

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