October 31, 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
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.

October 30, 2014

Drug Dog Sniffs - Bo the Dog Busts his Owner

drug dog, drug detection dog, Drug Dogs
Drug Dog Sniffs
Drug Dog Search Update - Breaking news that an unwitting dog helped police bust his owner. The cops were chasing a drug suspect who hid in tall grass. The narcs had noticed the suspect had a dog. For those playing along at home, the dog's name was Bo. Anyhow, when confronted by the police, the man and his faithful companion hit the road. The dog followed his owner. The police lost the track. They noticed the dog was standing nearby. They said, "go get him." That is what Bo the dog did. His owner was found hiding nearby. Good dog? 

Source: http://abcnews.go.com/Weird/wireStory/mans-dog-helps-police-bust-drug-charge-26559491

Also in an update the state of the case law discussed below: One legal source summarized the result of the Supreme Court review of dog sniffs. "When, subject to challenge by the defendant, the police provide evidence of a drug-sniffing dog’s satisfactory performance in a certification or training program, the dog’s alert can provide probable cause to search a vehicle."

Tampa Drug Defense Attorney has received an interesting comment on Drug Sniffing Dogs from one of our anonymous sources.

I post the anonymous comment it in its entirety:

"The dog lovers at the United States Supreme Court have once more dissed the dog haters at the Florida Supreme Court (I'm a cat person myself). You may recall that in January the SCOTUS granted cert in Florida v. Jardines, No. 11-564, to decide the question whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause. Starring in Jardines is a drug-sniffing dog named Franky." 

"Today, not content with one Florida drug-sniffing dog case per term, the SCOTUS granted cert in Florida v. Harris, No. 11-817, another drug-sniffing dog case. I am not sure of the exact question presented, but I do know the name of the dog -- Aldo.   In any event, the holding of the Florida Supreme Court to be reviewed is as follows:"

"We hold the fact that a drug-detection dog has been trained and certified to detect narcotics, standing alone, is not sufficient to demonstrate the reliability of the dog. To demonstrate that an officer has a reasonable basis for believing that an alert by a drug-detection dog is sufficiently reliable to provide probable cause to search, the State must present evidence of the dog's training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog's reliability. The trial court must then assess the reliability of the dog's alert as a basis for probable cause to search the vehicle based on a totality of the circumstances. Because in this case the totality of the circumstances does not support a probable cause determination, the trial court should have granted the motion to suppress. We remand for proceedings consistent with this opinion." 

 Harris v. State, 71 So.3d 756, 775 (Fla. 2011). 

 Drug Dog Sniff Questions? Call Casey at 813-222-2220

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
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 ...


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    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 ...


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    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 ...


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    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.

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    Tampa Drug Charge Defense Attorney