Law Offices of Russo Pelletier & Sullivan: Search and Seizure

May 11, 2018

Attorney Marc Pelletier on WTSP 10 News - Your License Plate Cover Could Result in a Traffic Stop

Most of our traffic laws in Florida are well-intentioned and are motivated by a desire to protect the motoring public. On the other hand, the law regarding license plate holders does not appear to have any rational relationship to insuring a safe driving environment. A recent Third District Court of Appeal opinion about this statute leads to the conclusion that it serves no other purpose beyond giving law enforcement the opportunity to pull motorists over who are otherwise obeying Florida’s traffic laws.

The Law

License plate covers are governed by two Florida statutes. Florida Statute 316.605 provides, in pertinent part, that the license plate shall be fastened to the vehicle in such a “manner as to prevent the plates from swinging, and all letters, numerals, printing, writing, the registration decal, and the alphanumeric designation shall be clear and distinct and free from defacement, mutilation, grease, and other obscuring matter, so that they will be plainly visible and legible at all times 100 feet from the rear…”

Florida Statute 320.061 provides that “a person may not alter the original appearance of a … license plate …, whether by mutilation, alteration, defacement, or change of color or in any other manner. A person may not apply or attach a substance, reflective matter, illuminated device, spray, coating, covering or other material onto or around any license plate which interferes with the legibility, angular visibility, or detectability of any feature or detail on the license plate.”

See our previous article: Your Vehicle's Decorative License Plate Frame Could Result in a Traffic Ticket

**The Pena Decision**

The facts of the Pena case are rather simple, and not in dispute. The defendant was operating a motor vehicle in the Miami area. He was stopped by law enforcement after a police officer observed that the vehicle had a metal license plate frame that obscured the words “MyFlorida.com” on the top of the plate and “Sunshine State” on the bottom. During the traffic stop, law enforcement discovered that the driver had a suspended license. A subsequent search of the car, based upon “an odor of marijuana” (no marijuana was discovered in the car) revealed the presence of a bag of Alprazolam pills, for which the defendant did not have a prescription. The defendant’s counsel filed a Motion to Suppress, challenging the legality of the traffic stop. This motion was granted by the trial court and all evidence, including the pills and confession, were suppressed as “fruit of the poisonous tree.” Essentially, the Court’s granting of the Motion to Suppress had the effect of dismissing the felony charge against the defendant. The State then appealed this ruling.

An appeal of a final order from a felony trial court is filed with the applicable “District Court of Appeal.” In this particular case which occurred in Miami, the Third District Court of Appeal had jurisdiction over the matter. The appellate court reversed the decision of the trial court, finding that the 2014 version of the statute specifically prohibited a motorist from obscuring the word “Florida” on his or her license plate. The court cited to a 1957 Florida Supreme Court case that “the Legislature, under its police power to protect the public from dangerous instrumentalities using the highways, has imposed rigid restraints, regulations, and restrictions upon the use of motor vehicles.

The Legislature Broadened the Scope of this Law

The court in Pena reversed the trial court because, at the time, Florida Statute 316.605(1) specifically provided that the word “Florida” could not be obstructed. Effective January 1, 2016, the statute was amended so as to remove the words “and other identification marks upon the plates regarding the word ‘Florida.’” Thus, this amendment had the effect of prohibiting a motorist from having a license plate that covered any and all “letters, numerals, printing, writing,” etc.

WTSP 10 News Interviews Russo, Pelletier & Sullivan Senior Partner Marc Pelletier

On Wednesday, May 10, 2018, Attorney Marc Pelletier was contacted by WTSP 10 News regarding his input on the recent Pena decision. Mr. Pelletier offered this practical tip to viewers of the Tampa Bay News outlet: “if you have a license plate cover on your vehicle, take it off.” With the current state of the law, an obstruction of any number or letter on your license plate, regardless of the readability of the license plate number on the tag, will allow the police to conduct a traffic stop and have non-consensual contact with an otherwise law abiding citizen.

If you have been charged with a crime following a traffic stop, we are lawyers that can help!

If you have been arrested for a criminal offense following a traffic stop, our Pinellas County Criminal Defense team can help. Call us at 727-578-0303 to schedule a free consultation to discuss how we can best defend your case.

June 27, 2017

Florida Imposes New Mandatory Prison Sentences for Trafficking of Fentanyl

This month, Governor Rick Scott signed House Bill 477 imposing new minimum mandatory prison sentences on individuals convicted of trafficking in Fentanyl or Carfentanil. See: Drug Trafficking in Florida... A Crime You Thought You Understood. Unsurprisingly, this legislation was passed after the governor had designated Florida's opioid epidemic as a statewide emergency earlier this year.

As the image depicts, Fentanyl and Carfentanil are highly concentrated drugs that require a substantially less quantity to induce similar effects as herion.

Effective October 1, 2017, Florida Judges will be required to impose the following minimum mandatory prison sentences for those individuals found in possession of Fentanyl and Carfentanil:

4 Grams but less than 14 grams – 3 years mandatory prison sentence

14 grams but less than 28 grams– 15 years mandatory prison sentence

28 grams or more – 25 years mandatory prison sentence

Our office has written several past articles and posted website pages on related topics:

Record Pinellas Oxycodone Prosecutions – How Did We Get Here?
Generic Oxycontin Likely to Fuel the Pain Pill Addiction Epidemic
Heroin Now Used As Pain Pill Substitute
Pinellas County Prescription Fraud
Doctor Shopping the St. Petersburg / Clearwater Area
Outstanding Pinellas Warrants for Drug Offenses
Florida Legislature Changes Trafficking in Hydrocodone and Oxycontin Laws
Focusing on the Pill Problem in Pinellas
Oxycodone...A Scavenger Hunt in Pinellas for Those with Addiction
Prescription Drugs - An Open Invitation into Pinellas County's Criminal Justice Center

Understand the Concept of "Mixture" In Drug Trafficking Offenses

Florida drug trafficking laws are written in such a way that if an individual is simply in possession of a threshold amount of a controlled substance it is considered a "trafficking" offense, regardless if he has never participated in the manufacturing or selling of the drug. Further, the total weight calculation is not based solely on the amount of Fentanyl or Carfentanil that the individual may possess. Rather, Florida law considers the entire "mixture" of substances contained in the pills. This means that if 1 gram of Fentanyl is cut with 3 grams of cocaine or Aspirin, the accused would be still subject to the 3 year minimum mandatory prison sentence under the Law.

Possession of Fentanyl vs. Trafficking of Fentanyl

The criminal defense attorneys in our office can encourage the Pinellas prosecutor to amend your charge to the lesser offense of "simple possession." This might be an effective strategy when the following factors are present:

When the Fentanyl was seized by law enforcement, it was not found to be individually packaged, manifesting an intent to sell;
You were not in possession of a significant amount of cash or a firearm suggesting your involvement in the distribution of prescription medication;
At the time of your arrest you never told the police that you intended to sell the pills found in your possession or that you had sold controlled substances in the past;
Your possession was motivated strictly by your need to feed your addiction;
We can prove that you have a legitimate addiction and that the best interest of justice point to the superiority of substance abuse counseling over imprisonment;
No scales, baggies or cutting agents were discovered as evidence in your case;
Your prescription medication addiction may have originated by an initial, lawful prescription provided to you by your physician.

We Can Help With Your Controlled Substance Charge

The lawyers in our office are former state prosecutors and are highly experienced in defending drug trafficking charges. You should contact our office to schedule a free initial consultation. At this meeting we can discuss the possibility of challenging the admissibility of the State's evidence. Let us examine an entrapment defense and consider the role that a confidential informant may have played in your arrest. We can discuss the facts of your case and ascertain whether your charge may be a good candidate for an amendment to a "simple possession offense." We can also determine your eligibility to participate in the Pinellas County Drug Court.

What to do if you are arrested for Trafficking in Fentanyl

If you are arrested for the offense of trafficking in Fentanyl in the Clearwater or St. Petersburg area you should contact an experienced Pinellas County criminal defense attorney. We are former state prosecutors that can help.

The Law Offices of Russo Pelletier & Sullivan, P.A.
Attorneys at Law
Former State Prosecutors
9721 Executive Center Drive North
Suite #120
St. Petersburg, FL 33702

Contact our office to discuss your options
(727) 578-0303
Free consultations

Visit our Informative Criminal Defense website: www.defensehelp.com
Visit our Prescription Drug Defense Website: www.floridaprescriptionfraud.com

June 26, 2017

Pinellas County Sheriff’s Office Purchases Evidence Tracer Laser System

This month the Pinellas County Sheriff’s Office purchased a Coherent Inc. TracER™ Laser System for their Forensic Sciences Division. This luminescence device is an 8watt 532nm high performance portable system that will be used at crime scenes to locate trace evidence of fingerprints, skin, body fluids, fibers bone fragments and even narcotics residue. The Tracer Laser System is said to provide law enforcement with an unprecedented level of investigative examination. The intensity of the laser is such that it can locate evidence that could previously go undetected.

How Does the TracER™ Laser System Work?

The instrument weighs under 45 pounds, has an instant on/off capability and operates on AC current in a laboratory setting. However, it also has its own built in battery power supply. This enables the TracER™ to be portable at crime scenes for up to 90 minutes. The battery is capable of recharging through a vehicle’s cigarette lighter. Lasers are considered the optimum light source for non-destructive latent evidence detection. Blocking filters, goggles, a fifteen-foot flexible fiber optic cable and a built-in camera combine to create “spectral brightness” to uncover and to image capture trace evidence. The manufacture promotes the machine by saying that CSI technicians will be able to see more at a crime scenes in less time.

What Other Types of Evidence the Laser Can Uncover?

Gunshot residue
Semen
Blood (Including, old blood covered in fresh paint)

How Can a Laser Impact my Pinellas Criminal Case?

A laser is capable of uncovering both incriminating and exculpatory evidence. “Exculpatory evidence” is evidence that tends to excuse, justify or absolve the alleged fault or guilt of a criminal defendant. The landmark U.S. Supreme Court case of Brady v. Maryland requires the prosecution to turn over exculpatory evidence to your attorney. In fact, the Brady decision says that prosecutors and law enforcement have a “duty” to disclose all material and relevant evidence that is favorable to the accused. The Supreme Court ruled that this obligation is supported by your constitutional right to due process and is consistent with the prosecutor’s obligation to “seek justice.”

The TracER™ has been available to police departments for the past eleven years. The manufacturer’s earlier laser, “The Incriminator” was released for law enforcement use in 1997. This technology has long used by the FBI, the military and other law enforcement agencies across the country. This begs the question as to why it took the PCSO so long to secure this instrument? If the PCSO investigation in your case occurred prior to the purchase of the laser, it could be argued that their investigation was conducted in a slip-sod elementary fashion. The argument goes that “had the laser been employed in your case, it may have uncovered evidence suggesting that the offense was committed by one or more other individuals. This could lead a jury to find “reasonable doubt” in your case, justifying a “not guilty” verdict. Florida’s Standard Jury Instruction Chapter 3.7 states that “A reasonable doubt as to the guilt of the defendant may arise from the evidence, conflict in the evidence, or the lack of evidence.” Further, that “If you have a reasonable doubt, you should find the defendant not guilty.”

How Our Clearwater - St. Petersburg Criminal Defense Team Can Help

Attorneys Marc Pelletier and Timothy Sullivan are former State Prosecutors. Their background and experience can be used to evaluate the police practices employed in your case. They can also point to the failure of law enforcement to take steps that would be considered prudent in an otherwise thorough investigation. These Pinellas County defense attorneys are highly dedicated to leaving “no stone unturned” in the meticulous review and preparation of their clients’ cases.

The Law Offices of Russo Pelletier & Sullivan, P.A.
Attorneys at Law
9721 Executive Center Drive North
Suite #120
St. Petersburg, FL 33702

Contact our office to discuss your options!
(727) 578-0303
Free consultations

Our Website Provides Significant Insight into Florida Criminal charges & Possible Defenses: www.defensehelp.com

Posted at 08:51 PM in Florida Crimes and Offenses, Florida Criminal Law, Search and Seizure | Permalink | Comments (0)

July 07, 2014

Pinellas Heroin Arrests Becoming More Common

The National Institute on Drug Abuse has recently released a report that includes findings from the Florida Medical Examiner’s Commission. Both the federal and state agencies are observing a steady decline in deaths associated with prescription opiate pain pills, oxycodone and oxycontin. However, the report finds that Florida’s pain pill crackdown has resulted in the unintended consequence of an enormous increase in the importation of Mexican white heroin. The National Survey on Drug Use and Health reported that the number of persons using heroin in 2012 doubled since 2007. In Pinellas County, Operation PAR projected that in 2014, admissions to their treatment center for heroin addiction will be three times the number of their patients in 2012.

Ready Availability of Heroin

The ready availability of heroin has caused the street price to plummet. Heroin costs half as much today as it did in 2010. The difficulty in obtaining pain pills, combined with easily obtainable heroin has resulted in a sharp increase in the number of our clients being arrested for the felony drug charge of “possession of a controlled substance.” The National Institutes of Health has declared that drug abuse patterns in Florida reflect that the sunshine state is currently suffering from a “heroin epidemic.”

Sudden Spotlight on Heroin

Government reports and media headlines of this nature have grabbed the attention of local law enforcement agencies in the Clearwater / St. Petersburg area. The spotlight on heroin has likewise been further illuminated because of an 89% increase in heroin related fatalities in 2012. The statistics for 2013 are scheduled to be released any day by the Florida Medical Examiner’s Commission. There is a general consensus to expect a further escalation because. The latest “Hot Spots” for heroin have developed beyond South Florida into the locally surrounding areas of Tampa, Orlando and Sarasota.

Pinellas Sheriff Announces Crack Down on Heroin Possession

On May 16th, 2014 Pinellas Sheriff Bob Gualtieri told Tampa Bay Times Reporters:

“Its almost like, ’Here we go again.’ Just like with pill mills, we’re trying to get in front of this. We have a lot of investigations going on. We see the trend. We’re trying to head it off.”

Felony Conviction Restrictions

Possession of even a trace amount of heroin constitutes a felony offense. A conviction for a felony carries with it collateral consequences that can affect you for a lifetime. These include:

Summary denial of employment applications;
Statutory disqualification for a variety of occupational or professional licenses;
Denial of a United States passport;
Automatic mandatory two year suspension of your drivers license;
Loss of civil rights;
Disqualification to vote;
Ineligibility to serve as a juror;
Loss of right to own, use or possess a firearm;
Disqualification of concealed firearm/weapon permit;
Adverse effect on credit;
Denial of lease and home owner’s association applications;
Ineligibility to hold public office;
In some instances, denial of temporary federal assistance or food stamps;
Ineligibility to be licensed or work in daycare;
In some instances ineligibility for foster family or adoption approval;
Eviction from public housing;
Ineligibility for student loans, educational grants work-study benefits and aid;
Ineligibility to enlist in any branch of the armed forces;
Ineligibility for U.S. citizenship and potential deportation.

Why it Makes Good Sense to Consult With A Criminal Defense Attorney

There is an old cliché first coined by Henry Kett in 1814 that Abraham Lincoln later made famous. The proverb states “Every man who is his own lawyer, has a fool for a client.” This adage recognizes that although American law permits an individual to represent himself in criminal court, to do so is often a foolish endeavor.

The law is highly complex and your personal emotions could interfere with your ability to make decisions that are in your best interest. You are likely to be less objective about your case then independent counsel. More importantly, an experienced Pinellas county criminal defense lawyer is apt to identify weaknesses in the prosecutor’s case or suggest strategies that you would have missed.

How to Avoid a Felony Conviction for Possession of Heroin

A lawyer must investigate the facts and circumstances of every criminal case. When it comes to drug possession charges, your attorney will want to scrutinize the lawfulness of the search and seizure conducted by the police and determine whether your Fourth Amendment rights were violated. An illegal search or seizure can result in the inadmissibility of the heroin in any criminal court proceeding. Such a finding, will typically result in the dismissal of the charge;

If the amount of heroin seized was minimal, sometimes an early intervention by your lawyer can be successful in having the charge reduced to a misdemeanor possession of drug paraphernalia charge;
If the heroin was not found on your person then you were not in “actual possession.” The Pinellas prosecutor will therefore be forced to pursue your case on a theory that you were in “constructive possession.” A motion to dismiss might be appropriate depending on whether evidence exists that would show you had knowledge of the drug’s presence, whether you could have exercised dominion and control over the contraband and if you knew of its illegal nature;
If the search and seizure was lawful in your case, your attorney can look to alternative methods of avoiding a felony conviction. For example, depending on your prior criminal record, a strategy might be employed through a plea bargain to secure a withhold of adjudication. In the alternative, if you have a prior criminal record, a prison sentence may be avoidable and a withhold of adjudication may still yet be obtainable through your successful participation in Pinellas county’s drug court program;
Some of our clients have their possession of heroin charges outright dismissed after completing a diversion program called “Pre-Trial Intervention.”

Can My Record of Arrest be Sealed or Expunged?

Avoiding a felony conviction will often allow our clients to seal or expunge their heroin arrest records if they have never previously been convicted of a criminal offense. See: Do All Employers Run Criminal Background Checks? and Seal or Expunge Your Pinellas County Criminal Record & Land That New Job.

Take the First Step – Learn Your Options

Call our office at and schedule a free consultation. Together, we can review the facts and circumstances of your case and discuss which course of action is in your best interest in your efforts to avoid a felony conviction for possession of heroin. It is important to have a strategy designed to achieve the best possible outcome. We can help!

At Russo & Russo, we are Pinellas attorneys who represent clients charged with possession of heroin and other criminal offenses arising out of St. Petersburg, Clearwater, and the Pinellas County area.

Call a Former State Prosecutor
Free Consultation: 727-578-0303

Possible Criminal Defense Solutions: www.defensehelp.com
Get Help After a Pinellas DUI Arrest: www.duistpetersburglawyer.com
Injured Because of Someone’s Negligence? www.injuryorarrest.com
Unable to Work? www.mydisabilitylawyer.com

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Posted at 04:49 PM in Florida Crimes and Offenses, Florida Criminal Law, Pinellas County Drug Court, Search and Seizure | Permalink | Comments (0)

December 21, 2011

Pinellas Defense Attorneys Reveal Illegal Police Tactics in Doctor Shopping & Prescription Fraud Investigations

The St. Petersburg, Florida criminal defense team at Russo & Russo, P.A. have noticed a growing trend in doctor shopping, drug trafficking and prescription fraud investigations by local law enforcement. Pinellas County Sheriff’s Detectives, along with police officers in the surrounding St. Petersburg / Clearwater areas are increasingly using “Blast Faxes” to “blanket” countless pharmacies. The police are seeking information about prescriptions the pharmacy has on file for a particular person of interest. Sometimes, these “blast faxes” are not limited to a particular county, but can be targeted to an entire large region of Florida.

Local Pharmacies Routinely Respond to Blast Faxes

When pharmacies receive these requests from law enforcement, they normally respond by providing information about the nature and quantity of controlled substances that were prescribed and purchased by the customer in question. The pharmacies appear all too happy to respond to the fax. They voluntarily agree to provide the records and generally do not require a subpoena or search warrant to produce the information. The police officer personally visits the individual pharmacies and secures copies of pharmacy records that include the names and addresses of the prescribing physicians. Sometimes, the police officer collects copies of the prescriptions themselves. All of this is done through the voluntary compliance of the pharmacy without any official legal process having been undertaken.

Securing the "Narcotics Agreement” Signed by the Suspect

Armed with this evidence, the crafty detective hits the road to pay a call on each of the suspect’s doctors. Displaying his badge with the façade of lawful authority and a hint of intimidation, the police officer will secure “narcotic agreements” from the patient’s file. These routine documents are typically signed by a patient early in the doctor/patient relationship. (Characteristically this takes place when the patient fills out his identifying information, insurance coverage and prior ailments.) The “narcotic agreements” typically provide that the patient agrees not to obtain a similar prescription from another doctor without first securing permission. It is also common for such agreements to provide a host of other prohibitions, such as assurances from the patient that he will not sell, trade or exchange his medications for money, goods or services.They often include an agreement on the patient’s part that the patient will fill all of his prescriptions at a single pharmacy and that he will take his medication only at the dosage prescribed. (See sample: “narcotic agreement”)

Some “narcotic agreements” are drafted by attorneys retained by the physician. Of course, these lawyers make every effort to protect the best interests of the doctor. As a result, sometimes the written “narcotic agreements” will contain language waiving doctor/patient confidentiality. These clauses are included to provide protection for the doctor at the expense of the patient. Common contract/narcotic agreement language may include: “the doctor has the right to release medical information to law enforcement and to fully cooperate with any investigation by the police.” See: “Police Requests for Patient Narcotics Agreements: Placing Physicians Between a Rock and a Hard Place” that appeared in the Florida Medical Association Magazine, Fall 2008.

Interviewing the Suspect’s Doctor

After obtaining the “narcotic agreement” the detective will normally interview the doctor and make the following critical inquires:

1.) Did the suspect/patient inform you that he was seeing another physician? and;

2.) Did the suspect/patient withhold information from you that he had secured a similar prescription from a second doctor?

But, Not So Fast….

Although not all appellate judges are in agreement, the decision of Scott Lee Mullis v. State of Florida, by the Second District Court of Appeal interprets Florida Statute Section 893.07(4) to authorize police officers to secure pharmacy records without the benefit of warrant, a subpoena, or even prior notice to the patient. Therefore, in most cases, prescription information and other documents secured from your pharmacist by “blast faxes” would constitute lawfully secured evidence in a criminal prosecution.

However, it is what police officers do next with that information that crosses the line in the eyes of the law. A law enforcement officer is prohibited from securing your medical records, patient histories, progress notes or medication records without first providing you with advanced notice that they intend to seek a court order. The police are also prohibited from soliciting your medical and prescription drug information by questioning your doctor, or any member of his medical staff.

This protection is guaranteed by your “right of privacy” under article 1, section 23 of the Florida Constitution. The Florida Supreme Court in State v. Johnson expressly found that this privacy right extends to your medical records. Likewise, medical records are protected against the prying eyes of law enforcement under Florida Statute Section 456.057. There is even a strong argument under Florida Administrative Code Sections 64B15-14.005 (5)&(8) “Standards for the Use of Controlled Substances for Treatment of Pain” that the “narcotics agreement” itself constitutes a protected medical record since it contains “instructions and agreements” pertaining to your medical care.

Unless you have previously signed a proper release, or the police first secure a valid subpoena, search warrant or court order, they are prohibited from seeing your “Narcotics Agreement,” as well as, any and all medical records held by your doctor’s office.

Why We are Qualified to Help With Your Prescription Drug Arrest

Our office maintains a rather comprehensive website dedicated to Florida Prescription Fraud cases. We are former state prosecutors who limit our practice to appearing only within the Pinellas County Criminal Court system. As a result, we are not only accustomed to regular dealing with our local State Attorney’s Office, but we are also very familiar with the customs and practices of the Pinellas County Circuit Court judges who will be assigned to your case. We routinely represent clients charged with prescription drug offenses and make regular appearances on behalf of clients in the Pinellas County Drug Court.

Our law firm has been“AV Rated” and we are included in the prestigious “Bar Register of Preeminent Lawyers.” What that means, is that we have been judged by other lawyers as possessing the highest level of skill, integrity and ethical standards. As such, you can feel comfortable knowing that we are committed to extending our clients the highest level of professional care.

We Can Help With Your Prescription Drug Charge

A Defense Team of Former State Prosecutors
Free Consultation - (727) 578-0303
Discuss Your Options & Possible Solutions

Our Websites:
Review Our Pinellas County Criminal Defense website
Pinellas County DUI Website Answers Common Questions
Learn if You Qualify for Social Security Disability Benefits

Green _check-mark_final Some Possible Solutions to Your Drug Charge

Pinellas Drug Court – St. Pete Times 12/18/11

Prescription Database Training in Florida

Watch Video on Felony Conviction Ramifications

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Posted at 07:21 PM in Florida Crimes and Offenses, Florida Criminal Law, Pinellas County Drug Court, Prescription Drug Offenses, Recent Court Cases, Search and Seizure | Permalink | Comments (0) | TrackBack (0)

November 10, 2010

GPS Tracking: A Technologically Advanced Infringement of Your Fourth Amendment Rights?

The Fourth Amendment of the United States Constitution guarantees the people the right to be free from unreasonable searches and seizures. But that right has been slowly eroded by an many "exceptions to the warrant requirement." Since 1791, the US government has been hard at work to create exceptions to your right to be free from unreasonable or unwarranted searches and seizures.

One would think that St. Petersburg police officers should not be allowed to go onto your driveway, crawl under your car, place a GPS tracker (link 3) on your bumper, and monitor your every movement for over a month... all without a warrant. Such disregard for personal property and privacy does not seem to even come close to comporting with the notion of being secured in your effects against unreasonable searches and seizures. But the Federal District Court of Appeals for the 9^th Circuit, (United States of America v. Juan Pineda-Moreno) and at least one District Court in Florida have held that the surreptitious placement of a GPS tracking system onto your car, while it’s parked in your driveway, is not technically a search under the Fourth Amendment.

Apparently, you have no expectation of privacy in your driveway, unless you can afford to have a gated private drive. But even if you have the financial ability to afford a gated private drive, the Courts' decisions suggest that all law enforcement has to do is follow your car and wait for you to thereafter park anywhere in a public place. For example...while you are in the store buying groceries, the police could lawfully be hiding a tiny device on your car that will tell them everywhere you go and how long you stay.

The Court’s rationale in these cases hinges on the premise that:

1.) An individual has little expectation of privacy in their movements in public areas;

2.) That law enforcement has long "tailed" suspects through the old fashioned method of simply surreptitiously following them. Such a police practice did not require a warrant. Under this view, a GPS tracker is merely a more convenient method of following a suspect's movement, but represents no more of an intrusion or "search."

In our opinion, such an analysis misses the mark entirely. The greatest problem with the unfettered use of GPS trackers is not just the ability it gives to the police to follow a particular persons movement. It's the fact that the police can conduct the monitoring 24 hours a day, seven days a week, without committing any real investigative resources to the operation. Such unrestricted power exposes the public to the very real danger that their movements can be tracked, catalogued, and recorded at the whim of "Big Brother..." all without the need for a showing of "probable cause."

As of now, these GPS trackers have been used primarily in drug trafficking cases. The next step could likely be the police using GPS to monitor the comings and goings of all those on probation. Beyond that, it won't be long before someone gets the bright idea to use GPS to keep tabs on those person convicted of a felony, or monitor the vehicle of somebody that has a suspended license. Many members of the public might not object to the use of the device in this manner. However, they miss the real danger that this practice has the ability to make all of us suspects, all the time.

Already a "cheap" technology, a wider application of GPS tracking by the police will no doubt continue to develop. Whereas our own Second District Court of Appeal has yet to rule on this issue, we are hopeful that when it does, the court will embrace the important principles of privacy embodied in the U.S. Constitution.

Arrested for a Drug Offense in Pinellas County? We Can Help!

We are experienced criminal defense lawyers who regularly prescription fraud, doctor shopping, and other drug related offenses arising out of the St. Petersburg /Clearwater area.

Contact our office for a free consultation with an attorney:
(727) 578-0303

Visit our comprehensive website at: www.defensehelp.com
Visit our DUI website at: www.duistpetersburglawyer.com

Useful Links on This Topic:

Consider Possible Solutions For Your Pinellas Criminal Charge
Tracking Devices You Can Purchase on the Internet
Felony Drug Possession in Florida
Appeal Court OK's Warrantless GPS Tracking by Feds
California College Student Discovers GPS Tracking Device on His Car

View a C-Span Video Discussion Regarding Police Use of GPS and the Landmark Decision of United States of America v. Juan Pineda-Moreno

Technorati Tags: constitution,fourth amendment,searches,seizures,warrant,GPS,car,attorney,lawyer,st. petersburg,clearwater,drugs,police,Pinellas,tracker,tracking

Posted at 04:27 PM in Florida Crimes and Offenses, Florida Criminal Law, Florida Traffic Offenses, New Florida Laws and Legislation, Search and Seizure | Permalink | Comments (1) | TrackBack (0)

July 05, 2010

How to Handle a Call From a Family Member or Friend From the Jail

The Dreaded Middle of the Night Call From the Pinellas County Jail

It's two in the morning and you are awoken by a ringing telephone on your night stand. This can't be good! It never is. You drag yourself to the edge of the bed and at the same time attempt to clear the cobwebs from your head. Picking up the phone you you hear several people yelling. The acoustics are poor and in the midst of all the din you discern the familiar, yet frightened voice of a family member or friend. He tells you he's been arrested and he is scared. He is very scared. You learn that he is in the Pinellas County Jail and he wants you to get him out as soon as possible. Well of course you will help, you tell him. "But what happened," you inquire. "What did you do? Were you drinking?"

You May Have Just Facilitated a Confession!

Despite your best intentions to help, your discussion about the facts of the case over the jail phone may have just amounted to a recorded confession.That is because all incoming and outgoing telephone calls from the Pinellas county jail are recorded by the Pinellas County Sheriff's Office. If a case is later set for trial, the recordings are routinely reviewed by prosecutors to ascertain whether any incriminating statements can be used against the accused to help secure a conviction. In the example above, if your friend or relative unknowingly answered the questions "what did you do?" or "were you drinking?" he may have provided the the prosecutor with the very ammunition needed to sink the ship.

Normally, the fourth amendment to the United States Constitution would protect you from a warrantless recording of your telephone conversation. However, the courts have ruled that for security purposes, an inmate has no "expectation of privacy” from phone calls made from inside a jail or prison. The logic or rationale is that by virtue of his incarceration, the inmate gives up a limited amount of his rights since he could be planning an escape or break-out from the correctional facility or making plans to secure contraband or a weapon that could jeopardize the safety of the correctional officers. Thus, the jail is authorized to record and "eavesdrop" on any conversations conducted through the jail facility's phone system.

Likewise, the protections afforded by Miranda warnings and the Fifth Amendment don't apply, since the application of those principles are only applicable to "custodial interrogations" conducted by the police or governmental agents.

What Should You Do?

If you get a call from the Pinellas county jail...

1.) Advise your friend or relative to remain calm. Remind them that they are not being housed in a state prison facility. It would be extremely rare for them to suffer an assault or injury in the Pinellas county jail facility;

2.) Immediately inform them that your telephone conversation is being routinely recorded and for that reason you should not discuss the facts of their case either directly or indirectly;

3.) As tempting as it may be to tell their side of the story, instruct them not to relate the facts of their case to any other inmate in the Pinellas county jail. That person could later be called as a witness against them by the prosecutor and in turn shown favoritism in their own prosecution.

4.) Reassure them that you will be immediately contacting an attorney to learn your best options for securing their release. Inform them that this might include efforts to secure an R.O.R. (Release on their Own Recognizance without posting a bond); posting a cash bond, or in the alternative, using the services of a bail bondsman to post a surety bond.

There Will Be Plenty of Time To Later Discuss the Facts of The Case

If you do get a call from the jail in the middle of the night, resist the urge to find out what led to the arrest. It's better to concentrate on securing the release of your friend or relative in the cheapest and quickest manner possible. You can then carefully select a criminal defense attorney with the appropriate background and experience to address the legal problem. There will be plenty of time to later sit down in the comfort of his office and discuss the facts of the case.

Watch our video on Outstanding Warrants which discusses the three
methods for securing a person’s release from the Pinellas County Jail.

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St. Petersburg / Clearwater DUI Defense Lawyers

Memo to Hogan Family: Phone Conversations in Jail are Recorded

Remorse in Courtroom Isn't Shown in Phone Calls From Pinellas Jail

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Charged with a DUI or a Criminal Offense?

We Can Help!

Russo & Russo are attorneys who represent clients charged with Traffic Tickets, DUI and criminal offense arising out of St. Petersburg, Clearwater and other areas of Pinellas County.

Call Us for a Free Consultation at: (727) 578-0303

Technorati Tags: Pinellas,Jail,recorded phone calls,Lawyer,attorney,confession,st. petersburg,clearwater,Sheriff,prosecutor,criminal defense,miranda,conversation,telephone,bond,R.O.R.,outstanding warrant

Posted at 01:23 PM in Arrest Warrants, Florida Criminal Law, Search and Seizure | Permalink | Comments (0)

March 23, 2010

Locals Likely to Get Caught Up in Spring Break Police Crackdown

DUI Checkpoints & Zero Tolerance on Treasure Island

As more than 1.7 million college students begin their annual Spring Break, police in Pinellas County are anxiously awaiting their arrival. Law enforcement will have stepped up patrols on all the beaches. Our office has confirmed that there will be a greatly increased police presence, with special emphasis on all offenses associated with alcohol consumption (open alcohol containers, disorderly intoxication, and driving under the influence).

Security camera surveillance, undercover officers, and DUI checkpoints are just some of the tactics local law enforcement are using this Spring Break season to send a "zero tolerance" message. Undercover officers working with Department of Alcohol, Tobacco, and Firearms agents will focus on identifying and arresting underage drinkers. Law enforcement intends to employ frequent DUI patrols on Sunset Beach. In addition, there will be coordinated DUI checkpoints along Gulf Boulevard. You can count on aggressive, large scale DUI enforcement, for Spring Breakers and any locals caught in the same net.

The Squeaky Wheel Gets the Grease

After an outcry from Treasure Island residents who have tired of dealing with rowdy partygoers, the City Commission has responded by steadily increasing police presence. Numerous angry complaints at city commission meetings and video posts on the Internet regarding beach disturbances recently prompted new laws banning beer kegs and glass bottles from Sunset Beach.

The Treasure Island Board of Commissioners also went one step further in anticipation of the 2010 Spring Break rush. The city website warns beachgoers to "Smile! You're on camera!" since high-resolution security cameras on poles have been mounted to the north and south of the ever-popular Caddy's on the Beach bar. Police now have a far easier method to monitor crowds on the beach and identify potential criminal activity. The city has gone so far as to establish a new Twitter page in an effort to warn students who plan to party on Treasure Island's beaches.

Park at Your Own Risk

Outraged Sunset Beach residents initiated a lawsuit against the city for failing to enforce parking regulations. Fifteen residents have filed a separate lawsuit against Caddy's for violating city parking regulations and allowing parking to overflow into once quiet residential neighborhoods. As a result, watch out for increased parking enforcement and tickets. Despite the fact that not everyone parking near the beach is looking for a drink at Caddy's, both Spring Breakers and locals can expect a parking citation frenzy.

Public Arrests Designed to Send a Zero Tolerance Message

In an effort to deter others from committing crimes, law enforcement will now be initiating more arrests on the beach rather than simply issuing "notice to appear" citations for court. They plan on sending a sobering message by making routine public arrests for the purposes of having crowds witness a suspect handcuffed and placed into the back of a police cruiser. Any criminal offense committed, even those of a minor nature, will prompt police to take swift action and deliver offenders directly to the Pinellas County Jail.

The Wrong Place at the Wrong Time?

With all of the increased police activity on Treasure Island this Spring Break season, we question whether a trip to Sunset Beach is really worth the hassle. For that matter, we anticipate law enforcement agencies in every beach community will be on "heightened alert" during Spring Break. Nevertheless, if you decide to visit, be aware that no one, whether a local or not, will be immune to the zero tolerance attitude of the police.

Charged with a DUI or a Criminal Offense? We Can Help!

Call Us for a Free Consultation at: (727) 578-0303

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Technorati Tags: Spring Break Law Enforcement,Treasure Island Spring Break,Zero Tolerance Law Enforcement Policy,Disorderly Intoxication,Possession of Alcohol Under 21

Posted at 05:07 PM in DUI Detection and Enforcement, Florida Crimes and Offenses, Florida Criminal Law, Florida DUI Law, Florida Traffic Offenses, Search and Seizure | Permalink | Comments (0) | TrackBack (0)

March 19, 2010

Cultivation of Marijuana & the Florida "Grow House Eradication Act"

According to Time Magazine, Florida is currently the United States leader in indoor marijuana cultivation. The escalation of marijuana operations in Florida is the result of the large residential foreclosure market in Florida. Marijuana growers have been quick to exploit the abundance of relatively inexpensive suburban homes. The crisis currently affects much of the state, with grow-houses raided in 40 out of 67 counties in the year 2008. Over the past 20 years, approximately 2.9 billion dollars worth of marijuana has been seized from indoor and outdoor cultivation sites in Florida.

Marijuana that is grown indoors can be grown hydroponically. Instead of using soil, the grower would supply the plant with a nutrient enriched water solution. This method of growing allows drug manufacturers to artificially increase the level of THC in the plants. Hydroponically grown cannabis is on average 4 times as strong as the marijuana grown outdoors in the 1980’s. The rise in strength has led to a corresponding increase in value, with some sellers receiving as much as $8,000 per pound when sold in the north-eastern United States.

For a survey of the positions taken by law enforcement officers concerning the effects of grow houses see: Marijuana Grow Houses: Florida’s Silently Growing Epidemic.

The Grow House Eradication Act

In 2008, Charlie Crist signed the Grow House Eradication Act into law to combat what government authorities perceive to be an "epidemic." The Act unsurprisingly received praise from the law enforcement community and was strongly supported by Attorney General of Florida, Bill McCollum.

The enhanced penalties provided for in the Act are found in Fla. Stat. 893.1351:

A person who leases or owns a structure or vehicle who knows it will be used for the sale or manufacturing of a controlled substance faces a 3^rd degree felony.
A person who is in actual or constructive possession of a similar structure or conveyance commits a 2^nd degree felony.
If a minor is present in the structure or conveyance and the person knows that the minor is present then they commit a 1^st degree felony.

The statutory provisions apply to individuals determined to intend the marijuana for sale or distribution. The presence of 25 or more marijuana plants is presumptive evidence of the intent to sell or distribute. Before the law was enacted, 300 plants were required before a presumption of an intent to sell or distribute could attach. The substantial reduction in the number of plants required to meet the threshold for intent could lead to small time growers facing penalties as if they were drug kingpins.

Florida Drug Charges Should Be Taken Seriously

Drug charges stemming from marijuana and other drugs can be classified into three distinct categories: misdemeanor possession of marijuana, felony possession of a controlled substance and drug trafficking. Many charges are further refined based on the weight of the drugs seized. In particular, drug trafficking charges carry mandatory minimum terms in state prison based on the total weight of the drugs seized. Even a charge as seemingly simple as misdemeanor possession of marijuana can have far-reaching consequences, including a mandatory driver's license suspension and a permanent record of arrest and conviction.

Due to the severe penalties for drug charges, our office recommends proactive solutions tailored to fit the individual circumstances of our client’s cases. Depending on the facts and circumstances of your case, our office may attempt to have your charges dismissed through a PTI Diversion program, seek a withhold of adjudication to prevent a formal conviction, and work to avoid the imposition of a jail sentence.

After being arrested for a drug related crime, it can be difficult to secure employment. Many employers are concerned about prior drug use and may associate it with poor work performance or a propensity toward other crimes. It is all too easy for a manager in this economic climate to completely overlook a job candidate based on prior criminal charges. However, securing the best possible outcome could qualify you to have your criminal records sealed or expunged.

October 23, 2009

New Police Methods Being Employed to Reduce Number of Intoxilyzer Refusals

In 2005, DUI arrest statistics were collected by NHSTA from across the country to determine how the rate of refusal to submit to a breath test varies from state to state. The rates ranged from a meager 2% refusal rate in Delaware to an astounding 81% refusal rate in New Hampshire. Florida had the third highest refusal rate in the country at 41%. It is widely known that drivers who refuse to submit to a breath test are statistically more likely to ultimately avoid a conviction for DUI. In view of these statistics, states with high refusal rates nevertheless have a number of tools at their disposal to lower the rate of refusal, such as:

Administratively revoking the driving privilege of motorists who refuse to submit to a breath test or subjecting them to criminal penalties for their refusal.
Florida has adopted both of these methods in an effort to combat their high refusal rate. In Florida, the first refusal carries with it a one year license revocation and the second refusal is a mandatory 18month revocation. Further, the second refusal is an independent criminal charge. See 2009->Ch0316->Section%201932#0316.1932">Fla. Stat. 316.1932(1)(a);

Using a refusal as evidence of guilt for the underlying charge of DUI.
In Florida, a prosecutor can inform a jury that the DUI driver refused to submit to a breath test and argue that the “refusal” is proof of a “consciousness of guilt.” In other words, the driver refused the breath test only because he knew the results would be over the presumptive level of impairment.

Allow police officers in limited circumstances to secure a blood sample without a warrant, with reasonable force if necessary, from an uncooperative driver.

In Florida, drivers who have been involved in an accident and transported to a medical facility for treatment can be requested to submit to a blood draw if the taking of breath or urine becomes impossible or impracticable. An extreme statutory remedy of a “forcible blood draw” is available only when the driver caused the death or serious bodily injury of themselves or another person. See 2009->Ch0316->Section%201933#0316.1933">Fla. Stat. 316.1933(1).

Florida Law Enforcement Now Securing
Blood Draws in Routine DUI Arrests

There is currently no statutory limitation on the use of a warrant by law enforcement to secure a blood sample against the will of a person who is routinely arrested for DUI. Consequently, Florida courts are required to look to the Florida Constitution for guidance as to whether new programs designed to collect blood samples at DUI check points or incident to arrest will pass constitutional muster.

Such programs could be arguably constitutional in Florida because Article I Sect. 12 of the Florida Constitution states that the protections against unreasonable search and seizure are identical to the protections offered by the U.S. Constitution. Thus, Florida State court judges are instructed by the Florida Constitution to follow U.S. Supreme Court precedent when construing the right against unreasonable search and seizure. Unlike some sister states, Florida affords no greater 4^th amendment protections to its citizenry that those afforded by the U.S. Constitution.

The Fourth Amendment of the U.S. Constitution provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Under the Search and Seizure provision of the Fourth Amendment of the U.S. Constitution, forcible blood draws subsequent to an arrest for DUI are lawful. The U.S. Supreme Court in Schmerber v. California, 384 U.S. 757 (1966) has long ago ruled that a blood sample may be taken from a DUI suspect. The Court in Schmerber determined that blood draws are not prohibited by the right against self-incrimination. The U.S. Supreme Court did of course put a limitation on the collection of blood, by requiring that the blood must be drawn pursuant to a lawful arrest.

Getting a warrant requires preparation of a sworn affidavit that establishes probable cause and review by an impartial magistrate (Judge). Of course, time is of the essence since alcohol in the blood stream may be eliminated by the human body with the passage of time. For this reason, Florida prosecutors are currently taking steps to streamline the process of securing evidentiary blood samples from persons routinely arrested for DUI.

In Brevard County, the Palm Bay Police Department sought to overcome the limitations of a driver’s refusal to Submit to a breath test. Law enforcement employed a template type document on a word processing machine inside of their mobile breath testing van. They quickly prepared an affidavit requesting the issuance of a search warrant for the extraction of a sample of the Defendant’s blood to test its alcohol content. The arresting officer then executed the affidavit and faxed it along with a proposed search warrant to the home of a local judge. The judge signed the warrant and faxed it back to the officer who transported the Defendant to the hospital for a blood draw that was performed by a certified phlebotomist. It’s important to note that the specimen was taken without the permission and consent of the driver who voiced his objection to same. A subsequent motion to suppress the blood results was denied by the court and the Defendant’s blood alcohol results were subsequently introduced into evidence against him. State v. Isley, 11 Fla. L. Weekly Supp. 1102a (Brevard County, September 15, 2004) See also: State v. Dunning, CT23787AXXX-MA (Duval County, Feb. 13, 2009); State v. McKinnon, CT18431AXXX-MA (Duval County, Feb. 19, 2009); State v. St. George, CT24421AXXX-MA (Duval County, January 29, 2009).

The Isley court found that:

1. The DUI blood draw warrant was in conformity with 2009->Ch0933->Section%2002#0933.02">Fla. Stat. 933.02(2)(a) which authorizes the use of any warrant for property that constitutes the means to commit a misdemeanor, i.e. the mixture of blood and alcohol;

2. Florida’s Implied Consent Law did not preclude the issuance of a search warrant for blood extraction in DUI cases;

How Some Drivers May Be Able To Avoid Blood Draws in Routine DUI Arrests

A close reading of the Isley decision reveals that law enforcement’s request for the warrant to extract the driver’s blood may have been denied by the judge, had the Defendant not assured the police officer that he did not suffer from any medical condition that would be aggravated or affected by the blood draw. For example, had the driver indicated that he suffered from hemophilia or AIDS, the judge would in all likelihood have refused to sign the warrant.

DUI prosecutions are recognized as perhaps one of the most complex criminal cases to litigate. They involve scientific evidence, breath testing administrative rules, DHSMV administrative proceedings, field sobriety testing and a host of evidentiary issues.

If you have been arrested for a DUI in Pinellas County, Florida you need a lawyer with the unique experience and background to thoroughly investigate all of your defenses. You can visit our DUI Web site at: www.duistpetersburglawyer.com for answers to Frequently Asked DUI Questions.

The Law Offices of Russo & Russo
Former State Prosecutors
877 Executive Center Drive West
Suite #112
St. Petersburg, FL 33702

Free consultations that are focused on creating an effective legal strategy to achieve the best possible outcome.
Call 24 Hours: (727) 578-0303

Related Links:

Cops Drawing Blood in DUI Fight

Palm Beach Sheriff's Office Draws Blood at DUI Checkpoint

There Will be Blood, at DUI Checkpoints

Duval Judges Mull Legality of Forcibly Drawing Blood in DUIs

Technorati Tags: DUI,breath test refusal,blood testing,warrant,Florida,implied consent,checkpoint,Pinellas County,administrative suspension

Posted at 03:18 PM in Alcohol Breath Test Devices, DUI Detection and Enforcement, Florida Crimes and Offenses, Florida Criminal Law, Florida DUI Law, Florida Traffic Offenses, Recent Court Cases, Search and Seizure | Permalink | Comments (0) | TrackBack (0)

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