Is the content on your cell phone protected by the 4th Amendment?

The Florida Supreme Court recently visited the topic of whether or not the content on your cell phone is protected by the 4th Amendment and answered the question in the affirmative in Smallwood v. State of Florida. (SC11-1130, May 2, 2013).

The issue in the case was: "DOES THE HOLDING IN UNITED STATES V. ROBINSON, 414 U.S. 218, 94 S. Ct. 467, 38 L. Ed. 2d 427 (1973), ALLOW A POLICE OFFICER TO SEARCH THROUGH PHOTOGRAPHS CONTAINED WITHIN A CELL PHONE WHICH IS ON AN ARRESTEE’S PERSON AT THE TIME OF A VALID ARREST, NOTWITHSTANDING THAT THERE IS NO REASONABLE BELIEF THAT THE CELL PHONE CONTAINS EVIDENCE OF ANY CRIME?"

 

The answer: 'NO.'  

 

The Court began with the premise that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment subject only to a few specifically established and well delineated exceptions."  The court further stated "we have carefully reviewed and considered the decisional law that addresses this unresolved Fourth Amendment issue, and we conclude that the line of cases requiring law enforcement to obtain a search warrant before accessing the data, information, and content of an electronic device cell phone that is removed from a defendant at the time of arrest is, quite simply, more persuasive."

 

If you have been arrested, you have rights against unreasonable search and seizure.  If you think that your rights have been violated, contact a Criminal Defense Attorney. 

Correcting an Illegal Sentence

What is an illegal sentence?  An illegal sentence is one which, when imposed is violative of our Constitution in that it constitutes cruel and unusual punishment when imposed.

The Third District Court of Appeal, State of Florida on April 24, 2013 most recently advised us as to what exactly constitutes an "illegal sentence" and the manner in which to go about rectifying the same in Lightsey v. State of Florida.

Here, the trial Court imposed a life sentence on a juvenile (16 years of age) for a robbery.  The Court stated that this sentence clearly constituted as an illegal sentence.  Further, it instructed as to how one may correct the same providing a procedural framework for all of us in the criminal field (see Rule 3.800(b)).  "Rule 3.800(b)(1) provides that a motion to correct an illegal sentence may be filed in the trial court during the time allowed for the notice of filing a notice of appeal of sentence...  If a motion is filed under subdivision (b)(1), the motion shall stay rendition of the sentencing order.  Further, rule 3.800(b)(2) provides that if an appeal is pending, appellate counsel is permitted to file and serve a motion to correct illegal sentence in the trial court before the party's first appellate brief is served, and it a motion is filed in the trial court, appellate counsel shall file in the appellate court a notice of pending motion to correct an illegal sentence, which notice extends the time for filing the brief."

Accordinly, on should: (1) Bring the sentencing error to the attention of the trial court at the sentencing hearing OR in a motion filed post sentencing; (2) If this is not accomplished, file a motion to correct an illegal sentence under rule 3.800(b)(1) BEFORE a notice of appeal is file; (3) Under 3.800(b)(2), prior to filing the defendant's initial brief, file a motion to correct illegal sentence in the trial court AND notify the Appellate Court of the pending motion to correct illegal sentence.

If you think that you have been illegally sentenced, contact an experienced criminal defense attorney.

Jury Selection - Striking for Cause

An interesting jury selection decision here in Florida was published yesterday in: ERNEST LARON BLAKE, Appellant, v. STATE OF FLORIDA, Appellee. 1st District. Case No. 1D12-1385. Opinion filed April 8, 2013.

The Court there held that it was an error to grant, over defendant's objection, state's challenge for cause as to prospective juror who indicated that he was engaged to a public defender in a different circuit where, although juror acknowledged that fiancee talked to him about the types of cases she worked on, juror indicated he would have no problem finding a person guilty if the evidence supported such a result.

The Court further held that the error not harmless, although state still had an unused peremptory challenge that could have been used to strike this juror.

From a procedural standpoint, it is important to object not only at time of striking, but also before the panel is sworn in as a whole in order to preserve the objection for appeal (as this lawyer did here).  As a result of this attorney's diligence the instant conviction was overturned on appeal. and remanded for a new trial.

Should you be in need of an attorney or be representing yourself pro se, remember that jury selection may be better conducted by a competent criminal defense attorney.

Florida v. Jardines

Florida v. Jardines (argued before the U.S. Supreme Court) resulted in a huge drug law/criminal defense/protection of our civil liberties victory today.  Justice Scalia upheld the Florida Supreme Court's decision holding that a dog sniff on private property implicates the fourth amendment. 

The basic premise is this: The Police took a drug-sniffing dog to Jardines’ front porch, where the dog gave a positive alert for narcotics. Based on the alert, the officers obtained a warrant for a search, which revealed marijuana plants; Jardines was charged with trafficking in cannabis. The Supreme Court of Florida approved the trial court’s decision to suppress the evidence, holding that the officers had engaged in a Fourth Amendment search unsupported by probable cause.  The US Supreme Court thereafter upheld the decision of the Florida Supreme Court.

What does this mean?: The 'curtilage' around one's house is entitled to the same protection as one's home.  The police may still approach one's property in order to speak to you, but a search with a drug dog exceeds the permitted social norm and is therefore, a search.

Such situations require the experience of a criminal defense attorney.  Should you find yourself in a like situation, contact a lawyer immediately.

Supreme Court Hears Equal Protection Argument for and Against Gay Marriage

While this blog is predominantly focused on criminal litigation, today the U.S. Supreme Court in Hollingsworth v. Perry will hear argument for and against Gay Marriage.

The question before the Court is whether the "Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man and a woman."  This should be an exciting day in the Supreme Court.  Thereafter, on Wednesday the Court will hear argument in US v. Windsor in order to determine whether section three of the Defense of Marriage Act violates the fifth amendment's equal protection of law guarantees.

Both of these issues are fundamental in determining where gay rights will proceed hereafter.  Decisions can be found on the Supreme Court Website here.

As always, should your rights be violated contact us. 

Criminal Court Hearing Dates and Clerk Services

www.themiamidefender.com
Most recently I had an issue arise with a client concerning a hearing date which was listed on the clerk's docket, but we (the state attorney and myself) had already addressed.

What do you do in this situation if you think your case has been resolved however the court's docket is not reflecting the same?

You contact your attorney.  The attorney will likely get in touch with the ASA (assistant state attorney) on the file and will attend the hearing (likely arranging for your lack of presence before the court) and prevent a larger problem from potentially occurring down the road.

Think of the converse scenario: you do nothing about it.  What will happen.  Perhaps nothing will happen because the judge recalls that your case was disposed of.  However, perhaps he or she (through the course of 1000s of names and faces every day) will forget that you were ever there and will issue a bench warrant for your arrest.  Perhaps even worse you are charged with violating your probation and put back in jail until such time as the court can sort the issue out.

Better safe than sorry.  Call your attorney.  If you do not have counsel or have been charged with a criminal matter, contact our offices: The Law Office of Robert J. Lee, P.A. at 305-322-9971.

MIRANDA WAIVER

You may or may not be following the Dennis Escobar trial involving the shooting of a Miami Dade Police Officer during a traffic stop back in 1988, but if you are you know that a significant ruling was pronounced concerning Miranda Waiver.

Almost everyone knows that they have a right to remain silent.  What they don't know, as Mr. Escobar apparently did not either back in 1988, is that you can invoke your right to remain silent and thereafter, retract that invocation.

What does that mean to you?  That means you need not say ANYTHING to the police after you invoke your right to remain silent.  If you want an attorney, ask for one and STICK TO it.  Do not volunteer a statement later on (even after invoking your right to remain silent) as by reengaging the police or investigators you may have effectively waived your right to council.


If you are in need of defense council, do not hesitate to contact our office at 305-322-9971.  We now have two locations in Downtown Miami and Coral Gables to better serve your needs.  You may also visit our website at www.themiamidefender.com for additional information.

If you want to read more about the Escobar trial, follow the link below.

Judge: Jurors can hear about confession in killing of Miami officer - Miami-Dade - MiamiHerald.com