The Hemisphere Project (the govt is tracking your cell calls)

For (@ least) the last six years the US govt, in an effort to thwart drug dealing, has been tracking your cellphone usage. The program is called "the Hemisphere Project" and you can read about it here: (http://www.nytimes.com/2013/09/02/us/drug-agents-use-vast-phone-trove-eclipsing-nsas.html?pagewanted=1&_r=2&smid=tw-nytimes&partner=rss&emc=rss&).

George Zimmerman's Attorneys Seeking Costs

The latest in the Zimmerman saga: his attorneys are seeking to have such costs as depositions and expert witness fees expended in the course of defending his case reimbursed by the State of Florida post-verdict.  The entire article (as published in USA Today) can be found here.

In the instance you or someone you know is in need of legal counsel, contact a criminal defense attorney.

FEDERAL SENTENCING, MANDATORY MINIMUMS?

 Federal Mandatory Minimums Get a Facelift: Alleyne v. United States

Alleyne was charged with using or carrying a firearm in relation to a crime of violence which carries a 5-year mandatory minimum sentence, that increases to a 7-year minimum “if the firearm is brandished,” and to a 10-year minimum “if the firearm is discharged.” 

“In convicting Alleyne, the jury form indicated that he had “[u]sed or carried a firearm during and in relation to a crime of violence,” but not that the firearm was “[b]randished.” When the presentence report recommended a 7-year sentence on the §924(c) count, Alleyne objected, arguing that the verdict form clearly indicated that the jury did not find brandishing beyond a reasonable doubt and that raising his mandatory minimum sentence based on a sentencing judge’s finding of brandishing would violate his Sixth Amendment right to a jury trial. The District Court overruled his objection, relying on this Court’s holding in Harris v. United States, 536 U. S. 545, (In 2002, the Court decided in Harris v. United States that Apprendi (see below) did not apply to facts that would increase a defendant’s mandatory minimum sentence, and therefore that a judge could constitutionally decide to apply a mandatory minimum sentence on the basis of facts not proven to a jury) that judicial fact finding that increases the mandatory minimum sentence for a crime is permissible under the Sixth Amendment. The Fourth Circuit affirmed, agreeing that Alleyne’s objection was foreclosed by Harris.”

The Court in a five-to-four decision by Justice Thomas (joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan), held (on June 17, 2013) “that the defendant’s seven-year mandatory minimum sentence violated his Sixth Amendment right to trial by jury because the question of brandishing was never submitted to the jury.  The Court’s opinion explains that the logic of Apprendi (Apprendi v. New Jersey stands for the fact that any facts which increase a criminal defendant’s maximum possible sentence are considered “elements” of the criminal offense that must be proved to a jury beyond a reasonable doubt) requires a jury to find all facts that fix the penalty range of a crime.  According to the Court, the mandatory minimum is just as important to the statutory range as is the statutory maximum.  The Court made clear that its holding was not designed to limit the discretion of the trial judge in imposing sentences within the range defined by the statutory maximum and mandatory minimum.  The Court therefore vacated Alleyne’s sentence and remanded the case for resentencing in line with the jury’s verdict.” See ScotusBlog for full cite.

What does this mean to you and me?  It means that the Court finally recognized that all of the evidence of a crime must be presented to the jury in order that the judge consider the same in the sentencing phase (if you are found guilty that is).  If you believe that you are facing an illegal sentence, contact a criminal defense attorney.

A bizarre twist on your right to remain silent (or suspension of the Fifth Amendment)

A bizarre twist on your right to remain silent:

The Fifth Amendment Provides: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."

However, in Salinas v. Texas, the Supreme Court held yesterday that silence during a "pre-custodial" interrogation is admissible as evidence of guilt.

The Court further stated that: "Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self- incrimination in response to the officer’s question. It has long been settled that the privilege “generally is not self- executing” and that a witness who desires its protection “ ‘must claim it.’ ...Because petitioner was required to assert the privilege in order to benefit from it, the judgment of the Texas Court of Criminal Appeals rejecting petitioner’s Fifth Amendment claim is affirmed.."

What does this mean to you?  In order to invoke your right to remain silent you now may need to speak up.

If you have been charged with a crime, hire an experienced criminal defense attorney and remember, you do have a right to remain silent, however, apparently you must now first invoke it.

Fourth Amendment Nullified By the Supreme Court

On June 3, 2013  the U.S. Supreme Court ruled in Maryland v. King (12-207) that “When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” (at 28) 

The 5-4 majority opinion of the Court was delivered by Justice Kennedy and joined by Chief Justice Roberts and Justices Thomas, Alito and Breyer. Justice Scalia filed a dissenting opinion joined by Justices Ginsburg, Sotomayor and Kagan.

It is the opinion of the majority, as is evidenced above, that upon arrest we have not 4th Amendment right (against search and seizure) to prevent DNA testing.




In the dissent (written by Scalia) he stated:

"The most regrettable aspect of the suspicionless search that occurred here is that it proved to be quite unnecessary. All parties concede that it would have been entirely permissible, as far as the Fourth Amendment is concerned, for Maryland to take a sample of King’s DNA as a consequence of his conviction for second-degree assault. So the ironic result of the Court’s error is this: The only arrestees to whom the outcome here will ever make a difference are those who have been acquitted of the crime of arrest (so that their DNA could not have been taken upon conviction). In other words, this Act manages to burden uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations."

Scalia concluded stating:

 “ ... I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection. I therefore dissent, and hope that today’s incursion upon the Fourth Amendment, like an earlier one, will some day be repudiated.”

The link to the case can be found here. If you have been arrested in Miami-Dade, Palm Beach or Broward County, you can find your attorney here.

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