October 16, 2014

Drug Trafficker (Alleged) Walks on Cocaine Cell Phone Search

Drug Trafficker (Alleged) Walks on
Cocaine Cell Phone Search
An alleged  Florida Drug Trafficker Walked on Cocaine charges. Charges were based upon a Cell Phone Search. The Number You Have Tracked is No Longer in Service - He was charged with " possession of more than 400 grams of cocaine, as well as fleeing and eluding, driving while his license was revoked as a habitual offender, and resisting arrest without violence."

The court questioned whether the warrantless use of electronically generated cell site location information to track an individual’s movements in real time both on public roads and, in this case, also into a residence, violates a subjective expectation of privacy in that person’s location . . . ."

The distinguishing factor in this case was the police tracked the suspect in his home."Officers learned of his location on the public roads, and ultimately inside a residence, only by virtue of tracking his real time cell site location information emanating from his cell phone." 

Florida Supreme Court rules that "[t]he trial court found that the application for the October 23, 2007, order did not contain a sufficient factual basis on which to issue a search warrant, but denied the motion to suppress, finding that no warrant was required to use Tracey’s real time cell site location data to track him on public streets where the court held he had no expectation of privacy." The Court found that the court below had erroneously "concluded that the exclusionary rule does not apply to prevent the State from using evidence derived from the statutory violation. . . . This conclusion was the result of reliance in part on federal decisions that have held that the exclusionary rule is not applicable to violation of the federal Stored Communications Act because the Act expressly rules out exclusion as a remedy, by stating that the listed civil and criminal penalties are the only judicial remedies and sanctions for violation of that act."

Under Florida law, "[w] cannot overlook the inexorable and significant fact that, because cell phones are indispensable to so many people and are normally carried on one’s person, cell phone tracking can easily invade the right to privacy in one’s home or other private areas, a matter that the government cannot always anticipate and one which, when it occurs, is clearly a Fourth Amendment violation."

Florida Supreme Court's Ruling


"We further hold that under the circumstances of this case in which there was no warrant, court order, or binding appellate precedent authorizing real time cell site location tracking upon which the officers could have reasonably relied, the “good faith” exception to the exclusionary rule for “objectively reasonable law enforcement activity” set forth by the Supreme Court in Davis v. United States, 131 S. Ct. 2419, 2429 (2011), is not applicable. Thus, Tracey’s motion to suppress the evidence should have been granted." 

Cell Site Location Information Background - CSLI


"Cell site location information (also referred to as CSLI) refers to location information generated when a cell phone call occurs. Cell service providers maintain a network of radio base stations called “cell sites” in different coverage areas. A cell site will detect a radio signal from a cell phone and connect it to the local network, the internet, or another wireless network. The cell phones identify themselves by an automatic process called “registration,” which occurs continuously while the cell phone is turned on regardless of whether a call is being placed. When a call is placed and the cell phone moves closer to a different cell tower, the cell phone service provider’s switching system switches the call to the nearest cell tower. The location of the cell phone can be pinpointed with varying degrees of accuracy depending on the size of the geographic area served by each cell tower, and is determined by reference to data generated by cell sites pertaining to a specific cell phone. "

"Florida’s counterpart to this federal scheme is contained in chapter 934, Florida Statutes, titled “Security of Communications.” In 2007 when the order in this case was entered for installation of the pen register and trap and trace device as to Tracey’s cell phone, section 934.31, Florida Statutes (2007), similar to federal law, required a court order to “install or use a pen register or a trap and trace device.” § 934.31(1), Fla. Stat. (2007). Section 934.33(1), Florida Statutes (2007), allowed entry of the order if the officer making the application under section 934.32, Florida Statutes (2007), certified that the information likely to be obtained by the installation and use of a pen register or trap and trace device is “relevant to an ongoing criminal investigation” by that agency. § 934.32(2)(b), Fla. Stat. (2007) (emphasis added). "

Complete Opinion is here:

October 8, 2014

Grow a Garden and Lose Your Home - Not So Fast Says Florida Court - Excessive Fine

Forfeiture of home in marijuana case was overturned in Florida - Grow a Garden and Lose Your Home - Not So Fast Says Florida Court - Excessive Fine - drug forfeiture, Florida Contraband Forfeiture Act
Marijuana Forfeiture
Overturned
There is a knock at the door. It is the police and they have come to take you house away from you. Civil forfeiture is a tool used by drug cops to generate huge revenue for sometimes-minor offenses including cultivation of marijuana. Maitland, Florida tried to take a residential property under the Florida Contraband Forfeiture Act. Florida owners fought back alleging and proving that the forfeiture violated the Excessive Fine Clause of the United States and Florida Constitutions. These constitutional clauses limit the power to extract payment as punishment for some offenses.

Facts of the Case

A Florida man was charged with manufacture and sale of marijuana from a home. The homeowner negotiated a plea that included no prison, no jail, and had no forfeiture provisions in the agreed-upon disposition. The court also required 100 hours of community service. The city where the home was located decided to take the house anyway. Under many state and federal drug prosecutions the forfeiture of assets is addressed in negotiations with prosecutors or by juries in the criminal case. The home was worth nearly $300,000.00. The maximum fine in the case was $37,000.00. The plea agreement imposed no fine. You can get all the facts on this forfeiture case here by reading the Court ruling . 

Typical Criminal Forfeiture Language


State charges, state and federal plea agreements, and federal indictments can contain forfeiture provisions that read like this: Upon conviction for any of the allegations alleged in the indictment, punishable by more than one year, the defendant shall forfeit to the government any and all interest in property constituting or derived from any proceeds the defendant obtained directly or indirectly as a result of; and property used or intended to be used in any manner to commit or facilitate the commission of such violations.

Excerpts from Florida Court Opinion

"Florida’s forfeiture provision also has a clear focus on the culpability of the owner (by providing an “innocent owner” exception), and because the legislature made an express finding that the Act serves to deter and to punish, it is also subject to the excessive fines limitation."

"no case has been cited in which an appellate court has approved a forfeiture in excess of six times the maximum fine. We decline to be the first. Accordingly, we find the forfeiture in this case violates the Excessive Fine provision"

Forfeiture Case Summary


No Jail
No Fine
No Forfeiture

Previous Forfeiture Coverage


  • Video - Florida Forfeiture and Seizure - Cops Gone Wild ...

    www.drug2go.com/2014/09/video-florida-forfeiture-and-seizure.html

     Rating: 4.9 - ‎Review by Google+
    Sep 7, 2014 - Cops and communities have a new contest - let's see how much stuff we can take from citizens using civil forfeiture, even though they are not ...
  • Florida Contraband Forfeiture Act | Tampa Drug Attorney on ...

    www.drug2go.com/2008/06/florida-contraband-forfeiture-act.html

     Rating: 4.9 - ‎Review by Google+
    New Ruling: Court erred when it summarily denied defendant's motion for adversarial preliminary hearing under Florida Contraband Forfeiture Act by making ...
  • Florida Drug Forfeiture | Tampa Drug Attorney on Call 24/7 ...

    www.drug2go.com/2008/04/tampa-florida-drug-forfeiture.html

     Rating: 4.9 - ‎Review by Google+
    Forfeiture Defined Under Florida and Federal Law: forfeiture is used in a variety of cases in Florida's legal system both in State and United States District Court.
  • September 7, 2014

    Video - Florida Forfeiture and Seizure - Cops Gone Wild

    drug forfeiture, Florida Contraband Forfeiture Act
    Florida Forfeiture and Seizure
    Cops Gone Wild
    Cops and communities have a new contest - let's see how much stuff we can take from citizens using civil forfeiture, even though they are not convicted criminals. These cops gone wild seize cash and assets then post “trophy shots” of money. Some police advocate highway interdiction as a way of raising revenue for cash-strapped municipalities.

    $2.5 Billion Seized Without Warrant or Indictment | Civil Forfeiture


    There are seminars and training firms that help agencies and communities get in on the forfeiture gold rush. One was quoted in the Washington Post saying, “All of our home towns are sitting on a tax-liberating gold mine,” This cop gone wild published his book under a fake name since he is also a marketing specialist for an interdiction training firm. Lets take a look at the consequences of civil forfeiture . . . #copsgonewild

    July 15, 2014

    Tampa Drug Charge Defense

    Tampa Drug Charge Defense
    Tampa Criminal Drug Defense Attorney, Casey Ebsary is a local defense attorney and former prosecutor. Casey was a Prosecutor in Hillsborough County's Drug Court, which was one of the first drug treatment-oriented court programs in Florida. Casey is ready to help with all types of criminal charges including drug charges and Driving Under the Influence DUI where drug use is alleged.

    Casey Ebsary is Board Certified in Criminal Trial Law by the Florida Bar Board of Legal Specialization and Education. Less than one-half of one percent of Florida's lawyers have qualified for this distinction. Click on the Florida Bar Board Certified Criminal Trial icon above to review Casey's qualifications. Then give Casey a call to discuss how he can help you, a family member, or a loved one.

    Casey is available for a free phone consultation at  813-222-2220.



    View Tampa Law Office of W.F. ''Casey'' Ebsary Jr. in a larger map

    Tampa Drug Charge Defense Attorney

    July 5, 2014

    Can Color of Vehicle Be Probable Cause In Traffic Stop?

    Exclusionary Rule, Probable Cause, Motion to Suppress, Fourth Amendment
    Probable Cause Traffic Stop Vehicle Color
    A Florida Drug case just answered two questions: 1) Can the Color of a Vehicle be the Probable Cause for a Traffic Stop? 2) Can cops invent creative reasons to pull you over?

    Traffic Stop Facts


    The case began when the cops were looking for a reason to pull a vehicle over and the driver was not doing anything wrong to justify a legitimate traffic stop to issue a traffic citation or a warning. The cop used his computer system to pull the DHSMV (Department of Highway Safety and Motor Vehicles) records on the vehicle he was following. The record was valid, the registration was valid, the driver and the vehicle were lawfully in operation. One field on the vehicle record described the color of the vehicle. The color of the targeted vehicle did not match. vehicle was stopped, odor of cannabis / marijuana, large quantity of drugs found, driver is arrested and goes to prison.

    Can the Color of a Vehicle be the Probable Cause for a Traffic Stop?


    Florida Supreme Court says the DHSMV record does not need to match the vehicle color. People are free to paint cars whenever they wish. There is no requirement that car owners report the new color of their vehicle to the state. Conviction overturned.

    Can cops invent creative reasons to pull you over?


    Florida Supreme Court says police cannot use otherwise innocent conduct to invent reasons for traffic stops. Courts can punish police who engage in such hunting. The punishment will at least be the evidence they have illegally obtained will be suppressed under the Exclusionary Rule. Under the rule, courts will not let police engage in misconduct and then convict and imprison citizens.

    Case Excerpts

    "To warrant an investigatory stop, the law requires not just a mere suspicion of criminal activity, but a reasonable, well-founded one. Popple, 626 So. 2d at 186 (“[A]n investigatory stop requires a well-founded, articulable suspicion of criminal activity.”). In Terry, the stop was found appropriate because the officer “had observed [three men] go [t]hrough a series of acts, each of them perhaps innocent in itself, but which taken together warranted further investigation.” Terry, 392 ."

    "[T]he sole basis here for the investigatory stop is an observation of one completely noncriminal factor, not several incidents of innocent activity combining under a totality of the circumstances to arouse a reasonable suspicion—as was the case in Terry. "

    "The discrepancy between the vehicle registration and the color the deputy observed does present an ambiguous situation, and the Supreme Court has recognized that an officer can detain an individual to resolve an ambiguity regarding suspicious yet lawful or innocent conduct. Wardlow, 528 U.S. at 125. However, the suspicion still must be a reasonable one. Popple, 626 So. 2d at 186 (“Mere suspicion is not enough to support a stop.”). In this case, there simply are not enough facts to demonstrate reasonableness." 

    "[It] is not against the law in Florida to change the color of your vehicle without notifying the DHSMV."

    "The intrusion involved in the instant case is similar to that described in Prouse, especially considering that anyone who chooses to paint his or her vehicle a different color could be pulled over by law enforcement every time he or she drives it."

    "We are satisfied that the exclusionary rule will have an appropriate deterrent effect in this case and that none of the exceptions to the rule apply. "



    June 20, 2014

    Medical Marijuana Legal Advice - Can a lawyer advise a client about using the drug or operating such a business without running afoul of the Bar?

    Medical Marijuana Dispensaries, medical marijuana dispensary, Medical Marijuana, Medical Marijuana Card, medical marijuana cooperative, medical marijuana lawyer
    Legal Advice for
    Medical Marijuana
    Dispensaries
    With a possible legalization of medical marijuana on deck in Florida, many are wondering how can a lawyer advise using the drug or operating a marijuana dispensary without running afoul of the Bar? Now we know the Florida Bar's position. "Yes [counsel can advise], according to the Bar Board of Governors, which adopted a policy not to prosecute Bar members for misconduct if they advise clients about the new state law — as long as they also remind clients about federal law. " says the Florida Bar News in its June 15, 2014 edition.

    Can a lawyer advise a client about Medical Marijuana without Violating Bar Rules?


    The new medical marijuana Policy follows: “The Florida Bar will not prosecute a Florida Bar member solely for advising a client regarding the validity, scope, and meaning of Florida statutes regarding medical marijuana or for assisting a client in conduct the lawyer reasonably believes is permitted by Florida statutes, regulations, orders, and other state or local provisions implementing them, as long as the lawyer also advises the client regarding related federal law and policy.