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

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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

Family law

This week, The Law Office of Robert J. Lee, P.A. expanded its practice to include family law. While Its founder, Mr. Lee has experience in civil litigation and family law, not until recent were cases outside criminal litigation accepted. As such, please contact us with all of your family law, divorce, child support, alimony, and estate planning needs.

FLORIDA CIVIL THEFT

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While my practice is predominately criminal I started in civil litigation and an area that I really think can help people in terms of prompting wrong-doers attempting to separate them from their money and/or services is the "Florida Civil Theft" Statute.  The Statute states as follows:

772.11 Civil remedy for theft or exploitation.—

(1) Any person who proves by clear and convincing evidence that he or she has been injured in any fashion by reason of any violation of ss. 812.012-812.037 or s. 825.103(1) has a cause of action for threefold the actual damages sustained and, in any such action, is entitled to minimum damages in the amount of $200, and reasonable attorney’s fees and court costs in the trial and appellate courts. Before filing an action for damages under this section, the person claiming injury must make a written demand for $200 or the treble damage amount of the person liable for damages under this section. If the person to whom a written demand is made complies with such demand within 30 days after receipt of the demand, that person shall be given a written release from further civil liability for the specific act of theft or exploitation by the person making the written demand. Any person who has a cause of action under this section may recover the damages allowed under this section from the parents or legal guardian of any unemancipated minor who lives with his or her parents or legal guardian and who is liable for damages under this section. Punitive damages may not be awarded under this section. The defendant is entitled to recover reasonable attorney’s fees and court costs in the trial and appellate courts upon a finding that the claimant raised a claim that was without substantial fact or legal support. In awarding attorney’s fees and costs under this section, the court may not consider the ability of the opposing party to pay such fees and costs. This section does not limit any right to recover attorney’s fees or costs provided under any other law.

(2) For purposes of a cause of action arising under this section, the term “property” does not include the rights of a patient or a resident or a claim for a violation of such rights.

(3) This section does not impose civil liability regarding the provision of health care, residential care, long-term care, or custodial care at a licensed facility or care provided by appropriately licensed personnel in any setting in which such personnel are authorized to practice.

(4) The death of an elderly or disabled person does not cause the court to lose jurisdiction of any claim for relief for theft or exploitation when the victim of the theft or exploitation is an elderly or disabled person.

(5) In a civil action under this section in which an elderly or disabled person is a party, the elderly or disabled person may move the court to advance the trial on the docket. The presiding judge, after consideration of the age and health of the party, may advance the trial on the docket. The motion may be filed and served with the civil complaint or at any time thereafter.

 

This statute essentially states that should someone have "defrauded" you of an asset/money(s) which is/are rightfully yours, you may send a letter containing the aforementioned verbiage from the statute (cited above) via certified mail (return receipt requested) and should said party NOT return your money(s) owed within the 30 (thirty) day period proscribed by the statute, you may thereafter file suit for triple the amount owed, attorney fees, and costs.

 

This statute helps to avail those wronged by a party who may otherwise have no incentive to return expropriated money as it carries the weight of potentially paying TRIPLE.  Should you desire to further explore the potential for treble damages in your case contact our office and we can set up a free initial consultation.

Substance Abuse and Federal Sentencing

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The Law Office of Robert J. Lee, P.A.

When the Federal Court sentences a defendant to a term of imprisonment, the Probation Officer in charge of completing the Presentence Investigation Report may recommend to the bureau of prisons that the defendant be placed in a residential substance abuse program for those who qualify (18 U.S.C. Sect. 3621(e)).

Pursuant to the bureau of prisons program statement (P.S. 5331-02), those serving 37 months or more may be eligible for a sentence reduction up to 12 months; those serving between 31 and 36 months may receive a reduction of up to 9 months; and those serving less than 31 months may be eligible for a reduction of up to 6 months for participation.

As such, review carefully the bureau of prisons program statement (P.S. 5331-02) and determine whether you may be eligible. For example, those with prior convictions of homicide, rape, robbery, aggregated assault, arson, kidnapping or an offense which involves sexual abuse of a minor may not be eligible.

For further information regarding P.S. 5331-02 and how it may affect your case and/or sentencing please visit www.TheMiamiDefender.com (The Law Office of Robert J. Lee, P.A.) or call us at 305-322-9971 for a free initial consultation.

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4th (Fourth) Amendment Seizures of persons

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"Is it unreasonable for an officer to stop me on the street and request to search my luggage or person absent probable cause?"

That depends:

The US Supreme Court has recognized three categories of law enforcement encounters with individuals:

1.) 'casual encounters'
2.) 'temporary detentions' and
3.) 'arrests'

The first type of encounter, a 'casual encounter' has been held NOT to be a seizure of your person and therefore, any information obtained by law enforcement during this 'casual encounter' can be used against you!

The Court has stated that a casual encounter is one where the individual is free to terminate the encounter at any time and without repercussion.

The Supreme Court went on to explain in US v. Drayton that "law enforcement officers do NOT (emphasis added) violate the Fourth Amendment's prohibition of unreasonable seizures merely by approaching individuals on the street or in other public places and putting questions to them if they are WILLING TO LISTEN (emphasis added)... Even when law enforcement officers have no basis for suspecting a particular individual, they may POSE QUESTIONS, ASK FOR IDENTIFICATION, AND REQUEST CONSENT TO SEARCH LUGGAGE (emphasis added) -- provided they do not induce cooperation by coercive means... If a reasonable person would feel free to terminate the encounter, then he or she has not been seized."

Now, what the Court is saying here is that a police officer may initiate conversation with you or I just as any other 'normal' individual and in spite of our programming to the contrary (to give deference and respect to officers of the law) we may "terminate" or ignore the officer and end the conversation absent ramifications.

Clearly (given the above flawed opinion) no member of the Supreme Court has ever had a run-in with the law. No 'reasonable person' would possibly feel free to unilaterally terminate a conversation with a law enforcement officer. This 2002 Supreme Court decision, while preposterous however, is the unfortunate state of the law.

As such, so long as you are 'free to leave' there is no detention and therefore no Fourth Amendment violations regarding a seizure of a person should an officer of the law stop you in the street to 'chit chat.'

In closing - if you are randomly stopped by an officer while walking around town and do not wish to partake in their conversation, remember: you don't have to talk back. Ask them if you are free to go and if so, end the conversation at that.

www.TheMiamiDefender.com : call us at 305.322.9971 for a free legal consultation!




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MIAMI CRIMINAL DEFENSE

This blog is meant to accompany the newly created website for the Firm "The Law Office of Robert J. Lee, P.A." This is a full service firm with offices located in Downtown Miami Florida.

Please visit our website at www.themiamidefender.com

www.themiami.defender.com