Tuesday, August 25, 2009

Law Updates for August 21, 2009

Hatcher, 34 FLW 1643, 1st DCA, Constructive possession. Officers who observed the def and another man sitting at a table located in the front of a residence between a fence and the street in an area known as a high narcotics area lacked pc to arrest the def for possession of the baggie of cocaine sitting on top of the table within 12 to 18 inches of the def where there was no evidence that the baggie was the def's, that the def exercised dominion and control of the baggie, or that the def knew of the baggie's illicit contents prior to the arrest. Error to deny motion to suppress.

Walden, 34 FLW 1162, 1st DCA, Hearsay, 911 call. Error to admit part of call as hearsay where the robbery victim asserted that another person just saw the def get into a red Cadillac. Error was harmless where both the victim and the witness, whose statements were relayed, were cross-examined at trial and witness testified he never actually saw the robber enter the car and could not see the occupants of the vehicle because it was dark and the vehicle was 200 to 300 feet away.

Pearson, 34 FLW 1664, 1st DCA, Writ of prohibition. Speedy trial, in Georgia, error to deny motion for discharge where def was arrested on Florida warrant and booked into a county jail in foreign state pending extradition back to Fla. Def was subsequently charged with and convicted of a crime in foreign state and jailed there as a result. Def was brought back and charged with information 579 days after the initial arrest in the foreign state. Speedy trial period not tolled where no information or indictment was filed in Fla. Failure to hold trial in Fla not attributable to the def , where state was always aware of def's incarceration and could have filed information prior to the def's return to Fla, thereby removing the case from the speedy trial rule.

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

Wednesday, August 19, 2009

Law Updates for August 14, 2009

Flowers, 34 FLW 1577, 4th DCA, Confidential Informant (CI) - Police had probable cause to seize the def when he arrived at a parking lot where CI had arranged to meet the def, given that the police confirmed informant's reliability by matching apt address and vehicles which informant id'd to def's driver license and vehicle registration, and by observing def arrive for another drug buy at specific time and place at which the def told him and given informant's statement he repeatedly bought drugs at def's apt in recent past. K-9 alert to def's vehicle gave police further cause to search the vehicle. Probable cause for issuance of search warrant for def's apartment based on informant's corroborated knowledge and results for vehicle search.

Cobb, 34 FLW 1600, 5th DCA, Hearsay-Dying Declaration- Although murder victim's dying declaration was testimonial, trial court did not err in allowing officers to testify as dying declaration is an exception to the Sixth Amendment Confrontation Clause. Def's right of confrontation was not violated because he had opportunity to cross-examine the officers about the dying declaration.

Gil, 34 FLW 1602, 5th DCA, Due process was not violated by police act of notarizing affidavits that had been signed by a CI using a fictitious name. Use of false name was for purpose of protection. Erred but did not intent to commit a fraud when he notarized the affidavits. Learned from his mistake and now includes the term "alias" on future affidavits.

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

Wednesday, August 12, 2009

Law Updates for August 7, 2009

Ramirez, 34 FLW 1520, 1st DCA, voluntary statement of def- Trial court erred in denying motion to suppress taped interrogation video, where detective offered several times to help the def in exchange for his cooperation without specifying the type of help he could offer. Absence of an express quid pro quo did not insulate police misconduct from claims of undue influence or coercion. Under totality def's statements were induced by improper police misconduct.

Monforto, 34 FLW 1538, 2nd DCA, deadlocked jury. Instructions improper where remarks could be interpreted as coercive. Jury could think not go home until they reached a verdict. Trial court spoke to jury foreman about the nature of the dilemma and he said legal issue, went back and jury never sent a question to the court, verdict came back ten minutes later even though twice before said they had reached an impasse. Jury announced numerical split, court gave improper Allen instruction, fundamental error.

J.C., 34 FLW 1542, 2nd DCA, Officer illegally detained juvenile without reasonable suspicion of a crime where 2 officers wearing range vests and badges pulled over, exited their car, and while approaching juvenile told him, "Hey, I've got to talk to you for a minute. Hang on." Statement amounted to order and show of authority. Reasonable person would not feel free to walk away but feel compelled to comply with a police officer's command to "hang on." Investigatory stop for which reasonable suspicion was necessary. Error deny motion to suppress.

McLaughlin 34 FLW 1555, 2nd DCA, GT Statute of limitations. State did not commence prosecution within the applicable statute of limitations. Evidence was insufficient to prove that "other process" issued after the information was filed where nothing in the record showed that counsel filed a written plea of not guilty or that counsel was notified of the def's arraignment, or that def or counsel knew that an information was filed against the def and that her prosecution was going forward in the usual way.

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

Wednesday, August 5, 2009

Law Updates for August 4, 2009

Navamuel, 34 FLW 1487, 4th DCA, - Error to deny motion to suppress evidence where law enforcement agents initially searched the def's home without a warrant or valid consent and then continued the search with a warrant based on illegally obtained evidence. Consent to search home is deemed involuntary where state failed to show, by clear and convincing evidence, a break in the chain of events of from the time the officers conducted the illegal stop and frisk in the def's driveway and obtained the def's consent to search the home. No argument or evidence that there was reasonable suspicion to justify an investigatory stop when the def was encountered in the driveway. Police did not have a reasonable belief that def was armed and dangerous to justify the pat down. Even if it was originally a consensual encounter, the illegal pat down converted it to an investigatory stop.

Hernandez, 34 FLW 1488, 4th DCA, Entrapment - Trial court erred in applying subjective entrapment as opposed to objective test(due process). Where claim was based on government's egregious conduct, court is unwilling to make rule that it is a per se violation for a government informant to offer illegal drugs to a known drug addict as an inducement to enter into illegal activity. Remanded to consider the right test.

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