The Amount of Bail Bond Depends On Circumstances of Each Case

Under the Criminal Procedure Rules, Statutes of Florida and the Constitutions of the United States and Florida, anyone who is arrested has the right to have a reasonable bond set in their case.  A bond is a deposit of money or in some cases a written promise to forfeit real property (land or home) which is held by the Sheriff’s Office until the case is completed in order to insure that the arrested person will appear back in court for future hearings on the case and that there will be no further violations of the law while on release.  In many cases involving minor charges where the arrested individual has a local residence and otherwise has employment, family or other significant ties to the community, a low bond or even a release upon recognizance – no bond required (ROR) will be set by the arresting officer or the jail booking desk.  In other cases involving more serious crimes the bond will be set at an amount which is supposed to reflect the seriousness of the crime charged and the past criminal history of the arrested person, as well as any other factors which might indicate a likelihood that the person may not appear in court in the future, or might pose a danger to the community if out on release.  In some cases where the charged offense is very serious, involves violence or harm to others or if the arrested person has a bad prior criminal record, no bond will be set on the case.  In those cases the arrested person will have to remain in jail unless a judge agrees to set a bond at a bond hearing held later.  Persons who are already on felony probation, pre-trial release on bond or ROR on another case or who have previously been found to be Habitual Offenders will generally not be given a bond upon arrest and will have to remain in custody until a judge agrees to set a bond following a hearing.

The Bond Amount Can Be Posted By An Arrested Person or Their Family or Friends

If a bond is set in an arrested case the arrested person may get out of jail by depositing the amount of the bond with the jail personnel.  The amount of bond money which is held by the Sheriff’s Office will be released at the end of the case, or in the event that a judge reduces the bond amount while the case is pending.  However, it is important to know that the Clerk of Court will deduct any amounts which are owed for fines, court costs, restitution or jail inmate fees from the bond amount before refunding it.

It May Be Preferable To Engage a Bail Bondsman To Post A Surety Bond

In many cases, where the bond amount is too large for an arrested person or their family to raise, or to avoid having the Clerk of Court deduct fines and costs from amounts posted by friends or family, it is preferable to engage the services of a Bail Bondman to post a surety bond in the case.  Typically a bail bondsman will charge 10% of the bond amount in order to post the surety bond.  This is the Bail Bondsman’s fee for their service and is non-refundable.  Sometimes the Bail Bondsman will require that collateral on a home, land or vehicles be arranged in the event that the arrested person flees.  The arrangement with a bail bondsman is subject to negotiation as with any business contract.  Once someone is released from jail on a pending criminal charge they generally must follow the directions of the bail bondsman regarding travel and reporting in.  Bail bondsman may decide to come off of the bond whenever they feel that the arrested person is a risk of violating the conditions of bail and they have authority under the law to detain the person they have bonded out and deliver them back to the jail.  Bail bondsmen must be licensed and bonded and there are many bail bondsmen in the Tampa Bay area who can be easily located near the jails or in the telephone book or on the internet.

Courts Use Uniform Bond Schedules To Provide Guidance For Bond Amounts In Cases

In the Tampa Bay area the courts have set uniform bail bond schedule which gives guidance to arresting officers and jail booking personnel as to the amount of bond which the judges would like to see in various types of charges and circumstances.  The latest uniform bail bond schedules for Hillsborough (Tampa) and for Pinellas (St. Petersburg, Largo, Clearwater) can be seen by clicking the links below:

Hillsborough Uniform Bond Schedule

Pinellas Uniform Bond Schedule

How An Attorney Can Help When The Bond Is Too High

In cases involving more serious charges or where the arrested person has a prior criminal history or was already on probation when the arrest occurred hiring an experienced criminal attorney can be a benefit.  Everyone who is arrested and held in jail on criminal charges will be brought before a judge within 24 hours of the arrest at an Advisory Hearing.  One of the issues the judge will consider at an Advisory Hearing is whether an ROR release or a lower bond amount is appropriate for the case.  An experienced criminal attorney will be able to assist the accused individual and their family, friends, employers or ministers to best prepare an appropriate and effective presentation to the court to ask for a bond reduction.  Even if the judge refuses to lower the bond at the first Advisory Hearing, everyone has the right to have a Bond Hearing before a judge at a later time in order to present reasons to the court why the arrested person would not be a flight risk or risk to the community if released from jail.  In some cases, if a reduction of a bond amount is granted, significant money can be saved from the amount which would otherwise be payed to a bail bondsman.  As always, the sooner that an experienced criminal attorney is retained to begin working to investigate and defend criminal charges the better.  The early stages following an arrest for criminal charges are often the most crucial time to have an attorney speak to police and prosecutors on behalf of the accused in order to persuade them to drop or reduce the charges.

The Law Office of Garry Potts is ready and able to represent clients throughout the Tampa Bay area in addressing bail bond matters.  With over 23 years of experience as an attorney in the Tampa Bay area and as a former prosecutor for 15 years, Garry Potts has the experience to work with clients charged with crimes in dealing with the police, prosecutors and the criminal justice system.  You can speak with Mr. Potts regarding a case by calling (727) 538-4166 or through email by clicking here.

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Expunge Criminal Arrest and Court Records To Keep Prior Criminal Charges Private

If you have had a prior arrest or criminal charge that was dropped by the State Attorney’s Office, dismissed by the court, or if you have had a prior charge sealed for more than ten years, you may be eligible to have that arrest and charge expunged from official records.  An expunction will require government agencies to destroy or obliterate all records of your arrest and prosecution.  Only one copy of the records of your old case can be saved, and it will be sealed and maintained by the Florida Department of Law Enforcement.

Once your prior criminal case has been expunged, you may lawfully deny that it ever happened in most situations.  Even if you are giving a sworn statement or deposition in a civil case you will be allowed by law to deny that you had ever been arrested for that charge.  There are some exceptions in which a person will have to disclose and admit a prior, expunged criminal record, such as: application to work for a criminal justice agency; becoming a defendant in a new criminal prosecution; another petition for sealing or expunction in a different case; application for admission to The Florida Bar; seeking employment with an agency or State contractor to work with the elderly, disabled adults or children; employment with a School Board or other educational institution; or applying for employment or access to one of the major seaports in Florida.

The process for obtaining a court-ordered expunction of a prior criminal record begins with determining your eligibility.  Call Attorney Garry Potts today at (727) 538-4166 or email him now by clicking here to make an appointment for a free consultation to review your possible eligibility to have your record expunged.

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Sealing Criminal Arrest and Court Records Will Protect Your Reputation

As soon as the nightmare of a criminal arrest and prosecution have ended and the task of reclaiming one’s life, employment and family and friendships begins, the challenge of explaining the arrest booking photo and court records which are often available as public records to the world begins.  Employers, landlords and schools frequently ask if there are any prior arrests or criminal charges when they are considering new employees, tenants or students.  Wouldn’t it be a relief to be able to hide the online photo and records and legally deny that the entire situation ever happened?

Sealing of Criminal Records in Florida Can Make Them Disappear As If It Never Happened

If you meet the criteria to be eligible for having your arrest and charge sealed, the law will require that the Clerk of Court and each police agency involved in the case actually seal their files and records, hiding them from public view.  The Sheriff will be ordered to remove the arrest booking photo from public view, including a website, and the Florida Department of Law Enforcement will be ordered to remove mention of the arrest and charge from any criminal history supplied to the public.  What’s more, the law of the State of Florida will permit the formerly accused person to lawfully deny, even under oath, that the arrest or criminal court case ever happened, in most cases.

If You Meet the Criteria You Can Be Eligible For Sealing a Criminal Record

Before someone will be legally eligible to have a past arrest or prosecution sealed, they must meet several criteria:

• They must not have been adjudicated guilty or adjudicated delinquent for any criminal charge, or comparable ordinance violation in the past ever, including the charge that they are trying to get sealed.  This is why it is important to always try to have a charge either dismissed or have the adjudication withheld on a case, if a plea offer is taken.
• They must never have had a previous sealing or expunction for any criminal case.
• The criminal charge that they are attempting to have sealed must not involve any of these charges or an attempt or conspiracy of them:
• Murder or Manslaughter
• Kidnapping
• Scheme to Defraud
• Various types of sexually related crimes
• Domestic violence, including domestic battery
• Child abuse or child sex crimes
• Lewd and lascivious acts against elderly or disabled adults
• Offenses by public officers or public employee
• Drug trafficking or manufacture of drugs (including growing marijuana)
• Arson
• Aggravated Battery or Assault
• Illegal Use of Explosives
• Aircraft piracy
• Robbery
• Carjacking
• Residential Burglary
• Home Invasion Robbery
• Terroristic act

If the crime for which someone is arrested or charged is one of the above, they must get it dismissed or reduced to a non-disqualifying charge and obtain a withholding of adjudication upon sentencing in order to qualify for sealing the record

• The probation or other court supervision for the charge which is sought to be sealed must be completed and terminated.

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One of the most common criminal charges that can bring ordinary people into contact with the criminal justice system is for domestic violence.  Commonly called spouse abuse, domestic violence under the Florida law includes violence and any criminal offense which results in injury to someone who is considered by the law to be a family or household member.  You should know that Florida’s law defines “family or household  member” very broadly and the term includes not only spouses or close family, but anyone who is living together as family, or used to live together as family.  People who have had a child together are also considered to be family or household members, even if they have never lived together in the same home, as well as people who are in a romantic or dating relationship.

Florida Law Requires Police and Prosecutors To Take Action In Domestic Violence Cases

One major difference with domestic violence charges is the way the law treats their investigation and prosecution.  Because domestic violence is one of the most commonly reported crimes and at times leads to serious injury or death to family or household members, the Florida law, under Chapter 741, requires any law enforcement officer who is called to a reported incident of domestic violence to conduct an investigation, write a report and, if an arrest is not made, give reasons in the report for the failure to arrest.   Many people, following a heated argument with a loved one in the home, call 911 or the police department out of frustration or concern, expecting only that an officer will come and calm or frighten the other household member.  Generally when law enforcement is called to the scene of a domestic disturbance, their policy is that “someone is going to jail”.

Charges May Not Be Dropped Easily In Domestic Violence Cases

Florida statutes, under § 741.2901 also require the prosecuting attorney’s office to develop special domestic violence units and to prosecute reported acts of domestic violence as criminal acts rather than as private personal family matters.  This means that even if the “victim” who made the initial complaint to law enforcement later changes their mind and wishes that all charges be dropped, often times the State Attorney, who prosecutes crimes in Florida, will be reluctant to do so and will refuse to simple dismiss the arrest charges.  The prosecutors will attempt to prove the charges of domestic violence by using recorded 911 calls of the victim as admissible “excited utterances”, other statements made by the victim to witnesses or medical personnel, and any statements or admissions made by the accused defendant.

Domestic Violence Charges Can Take Many Forms

While most people usually think of spouse abuse as taking the form of a misdemeanor domestic battery, which is an unlawful touching or striking of a household or family member, there are several acts which can lead to even more serious charges of domestic violence:

• Domestic Assault

- a domestic related assault is an intentional, unlawful threat to commit violence to a family or household member, with the apparent ability to do so.  Mere empty threats are not enough; it requires the doing of some act which creates a well-founded fear for the victim that the threatened violence is imminent.  Second degree misdemeanor, punishable by up to 60 days jail.

• Misdemeanor Domestic Battery

- unlawful touching or striking a family of household member.  First degree misdemeanor punishable by up to 1 year jail; if bodily harm resulted intentionally, requires a 10 day minimum jail sentence.

• Felony Domestic Battery by Strangulation 

- unlawfully and with intent impeding the normal breathing or circulation of the blood of a family or household member or of a person with whom he or she is in a dating relationship, so as to create a risk of or cause great bodily harm by applying pressure on the throat or neck of the other person or by blocking the nose or mouth of the other person.  Third degree felony, punishable by up to 5 years prison.

• Felony Domestic Battery

- unlawful touching or striking a family of household member intentionally causing great bodily harm, permanent disability, or permanent disfigurement; or by use of a deadly weapon.  Third degree felony, punishable by up to 5 years prison.

• Witness Tampering by Depriving the Means to Call 911

- Witness or victim tampering can be charged under circumstances where someone, during the course of a domestic argument, takes or hides a telephone from a household or family member who is threatening to call 911 or the police department.  Any attempts to hinder or delay the reporting of a crime will likely result in an additional charge for this crime.  In addition, attempting to talk a family or household member out of testifying or going to court could also be charged as witness tampering.  The level of crime and punishment for witness tampering is the same as for the crime which was being reported.

• Injunctions for Protection Against Domestic or Repeat Violence

-  Anyone who alleges that they have been the victim of domestic violence, or that they have reasonable cause to believe they are in imminent danger of becoming a victim, can file for an Injunction for Protection.  The Petition for Injunction is a sworn affidavit filed at the Clerk of Courts Office at most courthouses in the the Pinellas and Tampa Bay area.  The Clerks of Court will assist in the preparation of the Petition and it will be sent to a Circuit Court judge who is available for reviewing those Petitions.  If the Petition gives enough facts to allege previous acts of violence or reasonable cause for fear of future imminent harm, the judge will issue an Temporary Injunction.   The Temporary Injunction will be served on the person to whom it is directed, called the Respondent, and will be effective as an injunction until a hearing is held before a judge, usually within a couple of weeks.  At the hearing, a judge will hear evidence and legal argument from both sides and determine whether or not to issue a more permanent injunction, or to dismiss the Petition altogether.   An injunction will order that the person who caused the violence or fear not have contact or come within 500 feet of the victim. In addition, no person under an injunction for violence may possess or purchase a firearm.  Injunctions for protection will be enforced by the police by an arrest if they are violated.

Convictions for Domestic Violence Have Severe Effects

The results of a conviction for a crime involving domestic violence can have life-long severe effects.  In addition to the ramifications that any criminal conviction has on a person’s reputation and ability to find employment, an adjudication or even a withholding of adjudication for a crime involving domestic violence is never eligible for sealing or expunction from the public records.  And under the Federal Firearms Brady Act, either an adjudication or a withholding of adjudication for a domestic-related crime involving violence will prevent a person’s ability to ever purchase a firearm legally.

Defending the Domestic Violence Charge in Pinellas & Tampa Bay

Once you or a loved one has been arrested, charged or placed under investigation for a domestic violence crime, the time to begin your legal defense starts immediately.  Law enforcement investigators may try to interview the suspect and it is vital to have an experienced attorney speak on the accused person’s behalf!  Any statements made by the accused individual can be used against them and often will mean the difference between a provable case for the State Attorney or one which must be dropped for lack of evidence.  If the loved one or family member who made the initial complaint to the police has had a change of heart, or now realizes that they exaggerated the incident out of emotion or alcohol use, it is important that the police and the prosecutor learn of the truth about what occurred during the incident and learn that their “victim” is not in fear and does not wish for the case to be handled criminally.

As a former 15-year prosecutor in the State Attorney’s Office and as a criminal defense attorney Garry Potts has handled hundreds of domestic violence investigations, prosecutions and jury trials.  He has the knowledge of the criminal justice system and of the laws to assist in getting both sides of the story out to the police and the prosecutor assigned to the case in a calm, truthful manner in order to encourage other outcomes for the case rather than a criminal prosecution and eventual conviction.

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Florida Drug Law Punishes Innocuous Activity

As a follow-up to last month’s blog article on the Florida Federal Middle District’s declaration of Florida’s drug possession, delivery and sale statute unconstitutional, I note that today Judge Milton Hirsch, newly elected Circuit Court Judge for the 11th Circuit in Miami – Dade, issued his Order in the consolidated cases of 39 defendants charged with violations of Florida’s drug possession, delivery and sale law, Section 893.13, in which he held that drug statute to be in violation of the U.S. Constitution and dismissed the charges against all defendants, declaring that “…any prosecution brought pursuant to that statute is subject to dismissal.”  Judge Hirsch is the first Florida State Judge to side with the Federal Middle District Court of Florida’s ruling in Shelton v. Florida in holding that the State’s drug possession, delivery and sale statutory scheme, Sec. 893.13 as amended by Sec. 893.101 unconstitutional in violation of Federal Due Process requirements.

Judge Hirsch based his dramatic opinion (no hyperbole here – he quoted Shakespeare, Mark Twain and invoked allusions to a Category 5 hurricane) upon two main principles.  First, that the drug statute violates the Due Process requirements of the U.S. Constitution by permitting criminal prosecution for a serious crime for conduct which is inherently innocent without requiring the State to prove, as an element of the crime, that the accused had knowledge or intent to commit the actual crime.  In this instance, Florida’s drug law only requires that the State prove that an accused person knew that they possessed a substance, later determined to be illegal drugs; but never requires the State to prove that the accused themselves were aware that the substance was illegal. Because the statute, as amended by the Legislature in § 893.101, creates an unconstitutional “strict liability” crime which criminalizes conduct without regard to unlawful intent, it violates the principles of Due Process required under the 14th Amendment to the U.S. Constitution.

Strict liability criminal statutes criminalize conduct by a wrongdoer without proof of knowledge or intent to commit the offense.   Strict liability crimes are permitted for conduct which is inherently illegal, such as crimes against the elderly and statutory rape (no defense permitted as to ignorance of the victim’s age) and speeding (no defense that you were unaware how fast you were going).

In this case, however, Judge Hirsch reasoned that the act of carrying an unknown package or substance for another, without knowledge of its illegality or nature would be an inherently innocent act and would include “…within its wingspan those who meant no wrong.”  The statute further requires an accused person who was innocently and unknowingly carrying an illegal substance for another to bear the burden of proving in court that they were innocent, thus shifting the burden of proof from the State to the accused.  The Judge’s opinion held that the statutory scheme “…punishes an activity…that is inherently innocuous, rather than one that is inherently dangerous.”  Washington, at 7.

Secondly, the Judge’s Order is based upon his legal determination that, under the unique circumstances of the statutory and judicial background of this statute, he is bound legally to follow the opinion of the Federal Middle District Court in Shelton.  Judge Hirsch reasoned that, although case law would require him to follow Florida State court opinions on the constitutionality of a statute, in this set of circumstances, admittedly unusual, the Florida Supreme Court had already rendered their opinion that the Legislature’s amendment of the drug possession statute was inadequate and essentially rewrote it in their opinion in Chicone v. State, 684 So. 2d 736 (Fla. S.Ct. 1996) and therefore, he was not only free to follow the Federal District Court’s opinion, but legally bound by it.

The Other Side of The Argument

Suffice to say that Florida prosecutors and the Attorney General’s Office disagree.  Under their reasoning, not only are Florida State courts not bound by the Federal District holding in Shelton, but that opinion is fundamentally flawed and there is nothing Constitutionally wrong with Florida’s drug possession statute, as amended by the Legislature to shift the denial of knowledge of the illicit nature of a substance to an affirmative defense by the accused.  This side of the legal argument maintains that Florida’s drug possession law is not a “strict liability” statute, but one which clearly requires the State to prove knowledge and intent of possession of the substance in question – an illegal drug.  And because they have to prove that an accused was in knowing possession of an illegal substance, there is no Constitutional protection for that possession and any explanation as to how they might be innocently holding illegal contraband is a matter to be explained by the defendant in the form of an affirmative defense.  The fact, they reason, that an accused may have to declare innocence by virtue of ignorance of the nature of the substance is too deep in the onion layer of proof to justify a violation of Due Process.  The statute, § 893.101, clearly provides the opportunity for the accused to present an affirmative defense that they were somehow duped into innocently possessing illegal drugs.  Furthermore, the State’s side argues, there are many similar instances of this sort of statutory scheme:  those who commit sexual acts with underage children or who batter or steal from the elderly do not even have an ability to defend their ignorance as to age; those accused of possession of unlawful firearms cannot even defend upon ignorance of the nature of the item found in their possession and the defendant charged with the enhanced (2nd degree felony) crime of Residential Burglary cannot excuse themselves from legal liability by claiming that they didn’t know it was a dwelling that they broke into.

Keeping in mind that prior to Judge Hirsch’s ruling several other courts in Florida had denied defense attorneys’ motion to dismiss drug charges based on Shelton, the legal battle is far from decided.  State Circuit Court judges in Miami-Dade, Pensacola, Hillsborough Counties and another Federal judge for the Florida Middle District Court in Jacksonville have all declined to follow Shelton and denied motions brought before them by attorneys on behalf of those accused of drug crimes under the Florida statute.  Ultimately this legal “category-five hurricane” is likely to be more of a tempest in a teapot.

While the legal principles underlying the Federal opinion and defense attorney motions are important in attempting to preserve any eroding of the liberties created by our Bill of Rights and subsequent U.S. Supreme Court decisions, the perils posed by allowing the State to prosecute individuals without providing proof as an element of the crime that the person knew that the substance found in their possession was illicit are few and far between.  The vast majority of prosecutions for drug possession and sale involve facts which make it clear that the accused individuals were frantically aware that the were holding something that they did not want the police to know about.  The most common scenario which populates the criminal system which could claim shelter under a Shelton analysis is one in which a defendant is found with drug paraphernalia, such as a crack pipe, with minute traces of already smoked residue of cocaine in it.  A popular defense to charges of possession of drugs based upon the residue, possibly only detectible by microscopic analysis and gas chromatography, is that the accused was unaware that there were any drugs left on the pipe, and consequently, they are only guilty of mere misdemeanor possession of paraphernalia.  This type of factual scenario ultimately leads to penetrating cross-examination of the State’s witnesses by the defense attorney and heated arguments to the jury as to why the proof of knowledge of the drugs is evident from the circumstances of the arrest.  And frequently, the jury will side with the accused and only find guilt for the lesser charge of paraphernalia, if it was ever charged to begin with.

Even the nightmare scenarios posed by the opinions striking the drug statute as unconstitutional which paint the picture of the innocent person holding a backpack or carrying a package given to them by another would be protected by the statute’s requirement that the State prove, as an element of the crime, that the accused was aware of the presence of the illicit substance contained in the package.  In many cases those accused of the “constructive possession” of drugs which were found near, but not on them, would remain protected by the standard jury instructions, based upon the statutory definition of “constructive possession” which requires the State to prove that the accused had either exclusive control over the substance or “knowledge and control” of the illicit substance.  Those found innocently holding another’s back pack without being aware of its contents would be protected by the constructive possession jury instructions.  Those for whom it can be proven, beyond a reasonable doubt, knew that there were pills, rocks, powder or weeds in the pack are somewhat less susceptible to the argument that they were engaging in “activity…that is inherently innocuous”.  Those individuals however, even though they have a lot of explaining to do, would still be afforded Due Process protection by the jury instruction which instructs that if the jury has a reasonable doubt on the question of whether defendant knew of the illicit nature of the controlled substance”, they “should find defendant not guilty.”   Florida Standard Criminal Jury Instruction 25.7 Drug Abuse – Possession.

In our earnest attempts to protect any erosion of the liberties given to us under the Bill of Rights of the U.S. Constitution, defense counsel will continue to rightfully file motions to dismiss and habeas corpus motions on behalf of clients accused or convicted of drug possession, delivery, sale and trafficking.  The debate as to how fine to draw the line of presumption of innocence and how deep the government must plunge into the murky factual depths of knowledge and intent of each aspect of criminal conduct will go on, hopefully, for as long as this nation of free people exists.  Until the appeals of the various cases argued under this issue are resolved, the smart money is betting that very few defendants are going to go free – at least until the Florida or U.S. Supreme Courts resolve the matter.

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Two recent Florida cases, one of them from the Tampa Bay area, have solidified the requirements that law enforcement and the State must prove in order for drug dog alerts to rise to probable cause to support a search under the Fourth Amendment of the U.S. Constitution.  On April 21, 2011 the Florida Supreme Court cleared up a conflict between several District Courts of Appeal by holding in Harris v. State, No. SC08-1871 (Fla. 2011) that the State must provide evidence of a drug dog’s and its’ handlers experience and  training as well as the canine’s field performance records in order to make a prima facie showing that the drug dog’s positive alert for narcotics was reliable enough to constitute probable cause under the Fourth Amendment.  And on August 3, 2011, the Second District Court of Appeal, which covers the Tampa, Clearwater, St. Petersburg, Sarasota and Lakeland areas, released their opinion in Wiggs v. State of Florida, Case No. 2D09-3545 (2DCA 2011) which not only reaffirmed the requirement for field performance records of a drug canine before a positive alert could count as probable cause to support a search, but also made it clear that the results of those field performance records would be subject to analysis by judges in determining whether the dog’s alert was reliable.

Drug Dog Sniff Evidence Often Taken For Granted By Courts

The use of drug dogs, or K-9′s, by law enforcement and the military to locate illegal substances by smell dates back at least to the 1960′s.  The legal reliability of drug dogs’ superior smell and ability to locate contraband was accepted by most courts almost as a given fact.  Perhaps guided by everyday knowledge of the dog’s superior seeking abilities and a long history of use as human and animal trackers, many courts simply accepted without discussion the reliability and trustworthiness of drug dog alerts while carefully analyzing narrower legal issues.  For example, the U. S. Supreme Court, in the landmark Fourth Amendment case of United States v. Place, 462 U.S. 696 (1983),  considered the limitations to investigatory detentions for the purpose of conducting a drug dog sniff test, all the while without questioning the ultimate value and reliability of such tests.  And more tellingly, in another landmark search and seizure case the U. S. Supreme Court actually declared that, “The courts are not strangers to the use of trained dogs to detect the presence of controlled substances in luggage. … A negative result would have freed Royer in short order; a positive result would have resulted in his justifiable arrest on probable cause.”  Florida v. Royer, 460 U.S. 491, 505 (1983).  This pronouncement was made as part of the main opinion of the Court without any discussion of justification or cite to authority.  Because of this and other similar blind acceptances of the reliability and trustworthiness of drug detection dog alerts, other courts were similarly in blind acceptance of the value and reliability of canine search results for drugs while giving detailed analysis and discussion of underlying issues such as which circumstances would Constitutionally permit a dog sniff search.  See ILLINOIS v. CABALLES, 543 U.S. 405 (2005) (determined that drug dog sniff search of car on side of highway is reasonable if detention is not prolonged).

This seemingly unconditional acceptance of the reliability of drug dog sniff alerts for drug contraband led several courts to ignore the issue, or, if presented with evidence that drug dogs were not infallible, to adopt perfunctory requirements for qualifying their reliability.  In the Florida appellate case State v. Laveroni, 910 So.2d 333 (2005), the Fourth District Court of Appeal, which handles appeals for the Ft. Lauderdale / Broward County area, held that to show a prima facie case of reliability for purposes of establishing probable cause of an individual drug dog’s alert, the State merely had to show that the dog had been trained and certified.  That Court went on to explain that the mainstream rule in the United States did not require the government to make any further showing of reliability.  The Fourth D. C. A., in Laveroni, expressly disagreed with a case which had been decided by the Second D. C. A., which covers appeals from the Tampa Bay area.  That case, Matheson v. Florida, 870 So.2d 8 (2003), was the first in Florida to consider the problems inherent in drug dog alerts and to require that the State make a showing of the dog’s reliability and trust worthiness, not only by simply stating that the dog was trained and certified, but also by admitting records of the dog’s track record in the field since it’s training.  Unfortunately, the Fourth D. C. A., soon joined by the First D. C. A. (Tallahassee area) and the Fifth D. C. A. (Orlando / Daytona Beach area), decided that it should not be up to the State to lay a track record of reliability for drug dogs, but, rather, up to the accused to show that the dog had an untrustworthy record of alerting on drugs in the field.  This requirement, in effect, shifted the burden of proof to a defendant to show that a particular drug detection K-9 was unreliable.  The data which was necessary to make such a claim was often unavailable to the accused and thus, made it difficult if not impossible for someone who had been subjected to a search of their body or vehicle to contest the actual reliability of the drug dog alert which had provided legal justification for the search under the Fourth Amendment.

Drug Dog False Alerts – Handler Error and Too Sensitive Noses

Although it is an accepted fact that dogs possess an extremely sensitive sense of smell, which allows them to detect objects such as illegal drugs in minute quantities, there are several factors which can lead to an unreliable, false alert by a drug dog.  Under the legal requirements followed by the majority of courts until the past few years, a drug dog who gave a signal to its handler, called an alert, that drugs were present in a location would establish legal probable cause to permit a seizure and search of the location, typically a person’s clothing, bags or vehicle.  In effect, the dog became an essential source of information used to support legal probable cause for a search.  But, because dogs are incapable of testifying or being cross-examined in court, it was often left to speculation whether or not the scent alert had been accurate.  In fact, as discussed below, in many cases police drug dogs are quite capable of making an erroneous alert, which would lead to an unwarranted search of a citizen’s person or private belongings.

Because drug detection dogs are born with an extremely sensitive sense of smell, they do not have to be trained to detect drugs or other contraband.  The training that drug dogs go through, as explained by the testimony recited in the various cases cited, is more concerned with focusing the dogs’ attention on a particular substance on command and particularly on conditioning the dogs to react in a consistent, predictable manner in order to communicate to their handlers when they have located those substances.  However, being living animals, dogs are capable of becoming tired, annoyed or distracted and can on occasion give a false reaction, or alert, when no drugs are actually present.  The major types of problems which the courts in the recent cases found that can occur with drug dog alerts include:

1. Inattention or distraction leading to a false alert;
2. Inability due to inadequate training to distinguish between actual presence of drugs and a mere residual odor of drugs;
3. Reacting to cues given to them, either intentionally or unintentionally, by their handler – thus giving an alert in order to please their handler rather than because they have found drugs, and;
4. Miscommunication errors by the handler in recognizing or interpreting their dog’s behavior and mistaking it for an alert.

The courts considered that one of the most significant problems was that of false alerts due to an inadequately trained dog’s hypersensitive smell and ability to detect a residual odor from drugs that were no longer present.  As testified to by various handlers in these cases, a dog’s ability to smell is so sensitive that it often will detect the odor of drugs that have merely been transferred to an object by contact – such as someone who had handled drugs and then opened a car door.  This transfer of molecular odor can cause a drug dog to alert on the car door handle, thus giving rise to erroneous probable cause for a search of the entire car.  The significance of this type of error becomes apparent when we consider the potential for widespread false alerts leading to erroneous probable cause and unwarranted searches of citizens and their property.  Several studies have confirmed that something as widespread and common as U. S. currency can be the source of residual illegal drug scent.  According to a CNN article, 90% of the U.S. currency in circulation contains drug residue.  Although it may appear at first glance that the victims of these erroneous alerts and searches must have been guilty of drug possession anyway, since they ended up arrested for found drugs, what is less obvious are the much larger number of innocent citizens who are subjected to detention and searches of their private belongings, sometimes in view of the public, and in which nothing is found because the drug dog alert was false and based merely on some residual smells.  Those innocent people have little or no recourse under current laws for the anguish, inconvenience and public embarrassment they received.  Because they are not charged with any crime they never have their day in court.  Furthermore, laws dealing with violations of civil rights by law enforcement are notoriously difficult for citizens to win.

Now Required in Florida: Drug Dog Training, Field Performance Records and Handler’s Pedigree

Recognizing these problems inherent in determining the reliability of a drug dog alert, the Florida Supreme Court, in Harris, resolved the conflict between the various appellate courts in Florida by agreeing with the Second D. C. A.’s opinion in Matheson.  Acknowledging the various problems inherent in any drug dog sniff alert, the Supreme Court noted that a mere showing by the State that a particular drug dog had been trained and certified was meaningless, since there is no standard training or certification course for the dogs.  Thus, where some dogs are trained to a higher level to not alert upon the mere residual odors of drugs, others do not receive that level of training and will alert whenever they detect drug odor, regardless of the amount which may, or may not, be present.  The Florida Supreme Court therefore set the following requirements for the State to make a prima facie showing in any case in which the canine alert provided probable cause for a search or seizure for drugs in order to show that the police had a reasonable basis, under the totality of circumstances, to believe that the dog was reliable:

1. The dog was trained and certified to detect the contraband drug substance;
2. Explanation of the meaning of the training and certification;
3. Provide a record of the dog’s field performance since becoming certified, including a record of false alerts;
4. Provide evidence of the experience and training of the dog’s handler, and;
5. Any other objective evidence which would show the dog’s reliability.

Because the eventual determination of the dog’s reliability and whether the alert constituted probable cause is based upon a consideration of the totality of circumstances of the drug dog’s alert, this list of indicators of reliability are not necessarily meant to be an inviolable list of required items.  However, it is worth noting that the Court, in Harris, ordered that the drugs found in the search be thrown out because the State failed to provide an explanation of the dog’s training and capabilities regarding residual odor alerts and also failed to introduce field performance records.

Tampa Bay Area K-9 Field Performance Records Showed Less Than Probable Cause

On August 3, 2011 the Second D. C. A. issued its opinion in another drug dog sniff case in Wiggs.  In that case, out of Sarasota County involving another automobile search based upon the positive alert of a drug dog to an car during a stop for a traffic infraction, the State provided the records and explanations listed by the Supreme Court in Harris.  However, the field performance records and the handler’s testimony for the dog’s track record since becoming certified indicated that the dog, Zulu, had conducted seventeen vehicle sniffs in the field and alerted fourteen times since leaving training. Drugs were only found after four of those fourteen alerts. Based solely on the number of sniffs in which Zuul’s alerts uncovered narcotics, the Second D. C. A. noted that Zuul’s field accuracy rate was only four out of fourteen, or approximately 29 percent. Although Zuul’s police handler maintained that those non-drug alerts were not false alerts and that he considered the dog to be 100% accurate, since Zuul was likely accurately detecting a residual odor of narcotics, the Court noted that the handler’s explanations were not specific enough to establish the existence of residual odors on which Zuul should have alerted.  As the Court pointed out, in five of the “false” alerts, the deputy merely testified that the vehicle had a “drug history” which would explain how residual odors got on it.  The Court was unsatisfied that the deputy did not explain what the “drug histories” entailed or why it ensured that drugs had once been present in those vehicles. Furthermore, the Court noted that there was no testimony regarding how long before the stop the drugs had been used or how minute of a residual odor Zuul could be expected to detect.  The Court explained that the absence of that information made it unable to evaluate under a totality of the circumstances the meaning of Zuul’s unverified alerts and how it led to evidence of Zuul’s reliability sufficient to provide the police with probable cause to search the vehicle.  Significantly, the Court noted that the low percentage of verified positive drug sniff alerts by the dog during his field performance was clearly insufficient to establish reliability by showing a  “fair probability” that drugs would be found in a vehicle following an alert.

A Burden Shifted To the State In Drug Dog Sniff Search & Seizure

After many years of almost blind acceptance of drug detection K-9′s alerts and permitting them to be used as the sole basis for probable cause for a search and seizure of persons and property, these recent cases have finally addressed with specificity the criteria by which courts can evaluate the reliability of a particular dog and whether the prior performance of the dog warrants a conclusion that the dog was reliable enough to provide the sole basis for probable cause for a Fourth Amendment search.  Importantly, these decisions make it clear that it is no longer the accused person’s burden to contest an implied assumption that dogs’ sense of smell is infallible.  Now it will be incumbent upon the police to maintain careful records of their drug detection dog’s performance and upon the State to obtain those records and provide them to the courts in a probable cause determination.

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Florida’s Drug Possession Statute, 893.13, was found unconstitutional by the Orlando Federal District Court in Shelton v. Secretary, D.O.C. (M.D. Fla., July 27, 2011).  The grounds for the ruling were based upon the law’s lack of an intent or knowledge requirement as an element of drug related crimes as part of the State’s proof beyond a reasonable doubt.

Florida’s drug possession and sale law, Florida Statute Section 893.13, makes it unlawful “…for any person to sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance.”  Because the language of this statute only requires intent for the sale, manufacture or delivery of drugs, courts and attorneys long wondered and argued whether it was necessary for the State to prove that someone accused of drug possession knew that the substances found were, in fact, illicit drugs.  Many courts said no and left it up to the accused defendant to raise the issue of his unawareness that the stuff found in his possession were illegal substances.  Some courts went even farther and held that the State was not required to prove knowledge or intent since both were presumed from the doing of the prohibited act. See State v. Medlin, 273 So. 2d 394 (Fla. Supreme Court 1973).  Thus, not only was someone accused of possessing drugs required to bring forth his own evidence to show he didn’t know he had illegal drugs, but also the jury would be told by the judge that they could presume that the defendant was guilty simply because he was found in possession of drugs!  If the injustice of this is not apparent to the reader, consider a case where a fellow student, or co-worker gives you a bag to watch for them and the bag is later found to contain illegal drugs.  By the mere fact that you were found holding the bag you could be charged with drug possession and the State would never have to prove that you had ever known that the stuff in the bag were illegal substances.  And what’s worse, everyone, including the jury, would be able to assume that you must have known, since you were found with the bag.

This obviously unjust treatment of the drug possession law was corrected in 1996 when the Florida Supreme Court, in Chicone v. State, 684 So. 2d 736 (Fla. S.Ct. 1996), held that the drug possession statute had to be read to require proof of guilty knowledge by an accused of the nature of the substances as being illegal.  From then on, whenever the State prosecuted someone for drug possession, sale or delivery, they had to introduce proof that the defendant knew that the pills, powder or weeds discovered on or near him were illegal substances.  This requirement in reality was never as difficult as it might sound at first, since the vast majority of drug users or dealers go to extreme lengths to hide their “stash” from the police, or because they often have other items of drug paraphernalia on or near them, it is often very easy for a jury to see that there is no reasonable way the defendant did not know that they had drugs.  But for those who might very well be innocent, unknowing “patsies” or victims of being in the wrong place at the wrong time, it would be a crucial element of due process to require the State to offer proof beyond a reasonable doubt that they were, in fact, guilty of knowingly possessing illicit drugs.

This rule of law requiring proof of knowledge by the State, however just and fair and necessary it might have been to provide basic due process, still managed to upset certain people, in particular elected legislators in Tallahassee, eager to show that they were tough on crime.  And so, in 2002 the Florida legislature amended the drug possession statute to remove the State’s need to prove intent or knowledge of the possession of drugs by enacting Florida Statute 893.101.  In that statute the Legislature specifically denied that they intended the statute to contain the due process protections as to proof of knowledge required by the Chicone case.  The Legislature even went so far as to say that even if someone accused of drug possession were to present evidence on their own behalf that they didn’t know the substance found on or near them was illegal, there was a presumption that they knew of the illicit nature of the substance.

It was this 2002 amendment to Florida’s possession and sale law that the Federal Court for the Middle District of Florida held to be unconstitutional.  Even though Florida courts may choose to disregard the Federal District Court’s ruling and continue to follow the Legislature’s amended version of Sec. 893.13, the Federal District Court’s ruling is ultimately binding upon Florida law, at least in the Middle District of Florida, which encompasses the Tampa Bay area, including Clearwater, St. Petersburg, Pasco and Sarasota Counties, as well as Jacksonville, Orlando and Ft. Myers.  Federal Courts have the power, pursuant to a writ of habeas corpus, to ultimately release any prisoner held in custody on a sentence by the Florida State courts in this type of case because under the 14th Amendment to the U.S. Constitution, no state, such as Florida, may deprive anyone of due process, which is essentially what the Federal Court in Shelton has said that Florida’s Legislature did by enacting their 2002 amendment to the drug statute.  Thus, even if Florida’s courts continue to convict defendants under the Controlled Substances Law as amended by Sec. 893.101, the Federal District Court can, and probably will, release the defendants upon a writ of habeas corpus.  For that reason it is likely that Florida’s courts will take serious notice of the opinion in Shelton as “persuasive”.

Does this mean that drugs are now legal in Florida?  Not very likely!  The Federal Judge’s opinion declared Florida Statute 893.13, as amended by 893.101, unconstitutional.  Although attorneys will undoubtedly argue what this means to current and future drug possession and sale cases until the Florida Legislature amends the statute, don’t count on law enforcement or the judicial system to stand by and allow drugs to flow freely.  Undoubtedly what will happen now is that the older, pre-2002 version of Florida’s Controlled Substance law will take effect, without the limitations of the Constitutionally offensive Section 893.101, which will be severed from the rest of Chapter 893.  The old version of the Controlled Substance law is essentially the same as the current version, with the exception of the Legislature’s amendment by the addition of Sec. 893.101.  And, without the 2002 amendment, the drug statute will remain modified by the due process requirements of the Florida Supreme Court’s case of Chicone, which requires the State to prove knowledge and intent beyond a reasonable doubt.  So, put away your party hats boys and girls.  Illegal drugs are still illegal in Florida; but the enforcement of that law just got more just, at least in the Middle District of Florida.

Click here for an update to this topic.

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If you have been arrested, given a Notice to Appear or believe that you are under investigation for a crime in Pinellas, Pasco, Manatee or Hillsborough Counties, you probably have thought about hiring an attorney to represent you on your case.  You may have wondered what exactly an attorney would do to help you.  An experienced criminal defense attorney will do several things on your behalf in your case in order to make sure that any legal defenses are handled, to evaluate your options in fighting the charge, and to assist you in getting through the entire process with minimal fines and costs, sentence and inconvenience.

One of the first things that an experienced criminal attorney will do once you have retained them is to file several pleadings, or court documents, on your behalf.  Among them are:

Notice of Intent to Participate in Discovery / Demand for Discovery:

This pleading automatically requires the prosecutor to hand over any reports of witnesses, police and experts they have, along with their witness list and a list of any physical evidence they intend to introduce at trial in your case.  Also, this permits your attorney to demand any other evidence, usually video recordings, that the police may have related to your case.  Having these documents, reports and other discovery items will allow your attorney to evaluate your case for possible defenses or sentencing mitigation.  By getting the witness statements and full police reports for you to read, you will be able to not only refresh your memory about the events, but also find out what the police officers side of the case is.  This will help you immensely in speaking to your attorney about the case and in testifying later if you decide to take your case to trial.

Written Plea of Not Guilty:

Most times an experienced criminal attorney will file a Written Plea of Not Guilty on your behalf.  This permits you and your attorney to skip the first hearing before the judge, called the Arraignment.  Not only does this prevent you from making an unnecessary trip to court, but it allows you and your attorney to receive the State Attorney’s discovery on the case before you appear in front of the judge.  This will allow you to be better informed and prepared before you have to discuss sentencing issues or make other decisions on your case.

Written Waiver of Attendance:

An experienced criminal defense attorney will file a written waiver of your appearance in other pre-trial hearings also.  This can help you by excusing your attendance at the pre-trial conference hearings, which are usually held monthly while a criminal case is proceeding.  Although the judge can require your presence at a hearing, usually this written waiver of attendance will allow you to not appear and save you from using a vacation day from work or getting your boss upset from so many missed days.  There are very good reasons why your attorney may want you to show up for these pre-trial hearing, since that is where the prosecutors will advise the judge on the facts of the case that support the sentence that they are requesting, and sometimes a judge or the prosecutor may offer a sentencing deal that you might want to take advantage of.  However, even if you and your attorney intend for you to appear in court for a particular hearing, the filing of a written waiver of appearance will save you from getting an arrest warrant (capias) and an additional criminal charge for Failure to Appear should you have an accident, oversleep or suffer other unforeseen circumstances before arriving at the courthouse.

Full Evaluation of Potential Motions to Dismiss or Suppress Evidence:

In addition to filing certain pleadings on your behalf, the most important thing that an experienced criminal attorney will do for you in your case is to evaluate the facts of the case, the State Attorney’s evidence and your defenses in order to determine whether there is sufficient evidence to make a prima facie case against you for a violation of a valid law; or whether the police acted in violation of your constitutional rights in either stopping you or searching you and seizing any of your belongings.  Many times there are problems with the investigation of a case or the conduct of the police officers in searching and seizing evidence, which can lead to a Motion to Dismiss or Motion to Suppress.  Without the knowledge and experience of years of legal study and courtroom experience, you might never realize that a case you thought was open and shut could actually be dismissed.

Sentencing Negotiations, Guidelines Scoresheet Calculations and Mitigation:

If you make the decision not to take your case to trial and have the State Attorney prove their charges against you, there is still a great deal of benefit you can get from an experienced criminal defense attorney in advising you, negotiating and arguing for a lighter sentence in your case, and giving you the peace of mind that you are not just accepting a bad deal.

Protect Your Eligibility For Sealing or Expungment of a Criminal Record

After your case is over, you may be eligible to have the public records of your arrest and prosecution sealed or expunged.  Under Florida’s sealing and expunction laws any record of your past charge, including court records and booking photos can be removed from public viewing, including from official websites.  Not every case is eligible for sealing or expunction however.   Any case which has been adjudicated guilty is not eligible for sealing or expunction under Florida law.  Cases involving certain types of forcible felonies, domestic violence and other specific crimes are also not permitted to be sealed or expunged under Florida law.  In Clearwater, St. Petersburg and the rest of the Tampa  Bay area, attorney Garry Potts can assist you to ensure that every opportunity is taken in order to preserve your future eligibility for sealing or expunction of a criminal record.

As a former prosecutor and fifteen years of experience as an Assistant State Attorney, Garry Potts has practiced criminal and civil trial law for over twenty-three years.  Contact Garry Potts for a free consultation in Clearwater, Pinellas County, Florida.

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The recent discovery that Apple iPhones and iPads secretly record the locations of users has led to concern by privacy advocates and concern that the surreptitious records may have been intentionally stored.  These fears have been seemingly confirmed with further revelations of their use by law enforcement agencies as reported by cnet News.  Although Apple has never publicly discussed the storage of detailed location data in iPhones and iPads, according to cnet that feature has been know and used by law enforcement agencies for at least a year.  Even more alarmingly, private investigative and security companies have been aware of the ability to obtain location data from an individual’s smart phone and linked computers, presumably for use in non-criminal civil and other private matters.

These newest revelations build upon previous speculation that leading computer software corporations had secretly agreed to provide secret “backdoors” of entry into computer systems for the benefit of governments.  While it is no surprise to anyone who has worked extensively in law enforcement that government agencies have long benefited from recorded voice, billing and location data provided by communications and other utility companies, the secretive nature of the extremely detailed location tracking information recently discovered to be recorded by Apple and Android smartphones leads to serious concern over privacy and issues of Constitutional protections from “unreasonable searches and seizures” by government agencies.  In fact, one of the current hot topics in U.S. Constitutional criminal law is whether the confiscation of data on cell phones of recently arrested individuals violates the Fourth Amendment or not.

While the majority of law-abiding citizens applaud the efforts of law enforcement to curtail crime and stop criminals, everyone should be suspicious of the implantation of “secret” monitoring systems in our everyday, personal utility devices which are accessible to anyone with the knowledge of their existence.  When we are sold products for personal use by private companies who neglect to inform us of their potential use by either the government or by private individuals in civil legal actions, such as divorces, surely we have reason to become alarmed at not only the possible violations of our Fourth Amendment rights under the U.S. Constitution, but also at the nature of our actual freedom in a society in which the government and corporations are so clearly allied in secretive actions against everyday citizens.

Attorney Garry Potts has experience in criminal and civil trial law for over 23 years, including 15 years as an Assistant State Attorney in Pinellas County, Florida, where he prosecuted white collar, drug trafficking and computer crimes.  Contact Garry Potts for a free consultation in Clearwater, Florida.

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