Cyber Crime Lawyer Blog

As a South Florida cyber crime criminal defense attorney, I keep an eye on news about how law enforcement agencies use mobile devices to make and prove their cases. That’s why I was slightly disappointed in an Oct. 22 article from the Orlando Sentinel that addressed the topic, but glossed over the potential Constitutional issues involved. The article notes that cell phones and their records have become important parts of police investigations, including Florida’s Casey Anthony case, in which a young mother is accused of killing her toddler daughter. But as I have written on this blog, the courts are still deciding how many phone records police should be able to access without a warrant.

The article details the importance that mobile device records are increasingly having for law enforcement. For example, cell phone records can show roughly where the device is physically located by tracing what towers it uses, allowing police to track a person’s movements. That capacity allowed police to discover that Casey Anthony never went to Tampa from her Orlando home, as she told her parents after daughter Caylee’s disappearance. In another case, phone records showed that Tracy Ocasio of Oconee made her last phone call near the home of James Hataway, a person of interest in her disappearance. The article notes that contacts, texts, emails and photos and videos on phones can all be useful to investigators; a cyber forensics professor told the newspaper that an estimated 80% of crime scenes have at least one piece of digital evidence.

Law enforcement does not need a warrant for data on where calls were placed and who was on the other end, because information shared with phone companies has no reasonable expectation of privacy. But the article briefly notes that officers need a search warrant or consent from the owner to search the devices themselves. In fact, as a Miami cyber crime criminal defense lawyer, I know that it’s not completely clear whether they need such a warrant. Officers may legally search a suspect’s physical papers during an arrest, but it’s not clear whether mobile devices, with their massive data capacity, count as “papers.” And of course, a search and seizure that does not come during an arrest may violate the Fourth Amendment to the U.S. Constitution, which is likely one reason the Florida Department of Law Enforcement has told officers not to search phones without a warrant. When it comes to mobile electronic devices, the law has not yet caught up with the development of new technology.

Like much of criminal law, laws on searching suspects’ phones must balance their rights with law enforcement’s need to do its job efficiently. Everyone involved in the system -- defendants, police agencies, prosecutors and Fort Lauderdale cyber crime criminal defense lawyers like me -- has an interest in seeing the law clarified. As you might imagine, I would prefer a clarification that leaves intact the Constitutional right to be free of unreasonable search and seizure, even if it means law enforcement must wait a few days to get warrants to search devices. But as an Orlando cyber crime defense attorney, I urge my clients and potential clients to be smart about what they carry around with them in the first place, so that a routine traffic stop cannot turn into a personal and civil-rights nightmare.

Ever since the story broke about sex offenders in Miami-Dade being directed to live under the Julia Tuttle Causeway, I have kept an eye out for articles on the issue of where registered sex offenders may live in South Florida. That’s why, as a Fort Lauderdale sex offender registration defense lawyer, I was disappointed to see that authorities are expected to allow one of the few homes for registered offenders to close because of a new playground opened two blocks away earlier this year. According to an Oct. 17 article in the South Florida Sun-Sentinel, eight residents requested an injunction allowing them to remain at the Mission of St. Francisco in Fort Lauderdale. But because of financial problems with the mission, the remaining residents have agreed to move out by Oct. 21.

St. Francis provides supervision, therapy and spiritual help for its all-male residents. Residents pay rent, work, attend chapel and therapy and follow the home’s rules. Originally a substance abuse residential treatment center, it slowly became a center for sex offenders after beginning to admit them in 2005. Residents interviewed for the article say the home has been good for them, and a social worker and academic interviewed for the article said the community and programming at St. Francis were probably ideal for stopping recidivism. However, when the playground opened in January, it triggered Florida’s sex offender residency law, which forbids registered sex offenders from living within 2,500 feet of any place where children congregate.

The residency law came under fire over the summer when media reports showed that a group of sex offenders were living under the Julia Tuttle Causeway in Miami. Like Fort Lauderdale, Miami-Dade has a strict sex offender residency law requiring registered sex offenders to stay 2,500 feet away from parks, schools and homeless shelters. This made it nearly impossible to find housing in the densely populated county, leading the Florida Department of Corrections to order some of the offenders to live under the bridge. St. Francis resident Michael Navarro faces similar problems in Broward County. He told the Sun-Sentinel that the state Department of Corrections gave him a list of approved areas to live, but the closest was in Fort Myers, about 140 miles away.

Chris Mancini, an attorney for the St. Francis residents, said sex offenders evicted by residency requirements tend to become homeless, making it nearly impossible for law enforcement to know where they are. As a Miami sex offender registration defense attorney, I couldn’t agree more. The goal of sex offender registration and residency laws is to allow law enforcement and the community to keep track of offenders. Laws that make it impossible for offenders to find a permanent address actively undermine that goal, allowing offenders with bad intentions to slip under the radar. As this article shows, they can also undermine efforts by the offenders themselves to overcome their problems and become productive members of society.

As a South Florida sex offender registration violation lawyer, I’d like to add that laws that indirectly or directly require homelessness are a failure of our society. Regardless of what these offenders may have done, they should not be ordered, under threat of arrest and possible re-incarceration, to become homeless. Nor should we intentionally take away one of the few housing options available to these people, however important a new playground may be. Miami-Dade is currently embroiled in litigation over the issue, but we do not need a court to tell us that this situation is not acceptable.

If you have read a Florida newspaper online recently, you may have noticed that several of them have started to publish “mug shots” of people who were arrested in the region. As a South Florida cyber crime criminal defense attorney, I have my doubts about this practice, and an Oct. 3 column from Carl Hiaasen at the Miami Herald does a good job of explaining why. Hiaasen wrote that newspapers are seeing an influx of revenue from publishing the mug shots, which is much needed in the struggling newspaper industry. But by publishing booking photos, rather than waiting for a conviction, he wrote, the newspapers are undermining an important tenet of American justice: the right to be presumed innocent until proven guilty.

As Hiaasen noted, not everyone who gets arrested and booked into jail is actually guilty, but the practice of publishing mug shots obscures that fact. An embarrassing mug shot implies guilt, particularly to viewers who aren’t familiar with the criminal justice system. However, if someone who was booked and published is later acquitted or has the charges dropped, he wrote, the newspaper is unlikely to publish it unless the person or the case has a high profile. And in the meantime, everyone with an Internet connection can see the photo, including the accused person’s boss, family, friends and neighbors. In addition to being embarrassing, this could have real, irreversible consequences like losing a job. As Hiaasen said, “the innocent are basically screwed.” While the practice is national, it’s especially widespread here in Florida thanks to open records laws.

Hiaasen’s column came on the heels of a Time magazine article on the same subject. As an example of the problem, that article used the story of a young woman from Tampa who was pulled over for a minor traffic violation. Once she handed over her license, she discovered that her driver’s license had expired, making her guilty of a misdemeanor. She renewed the license the very next day -- but her booking photo had already made it onto TampaBay.com. She said she was upset to be displayed next to alleged drug traffickers and drunk drivers, and concerned that her boss would see the photo. Both Time and the Herald noted that FM radio DJs have already taken to using the mug shots as fodder for morning drive-time comedy as well.

As a Miami cyber crime criminal defense attorney, I strongly agree that publishing mug shots is irresponsibly close to taking away the right to be presumed innocent until proven guilty -- a cornerstone of our legal system that serves as a safeguard against government overreaching. In fact, I believe they could even put people accused of certain crimes in danger. Registered sex offenders, who have been convicted, have been murdered and targeted for vigilante justice multiple times, including incidents in Maine, California and New York. It only takes one neighbor who recognizes the person in a mug shot to carry out an attack here in Florida as well. This is on top of the less violent but nonetheless life-changing consequences of public humiliation for the defendant, such as loss of jobs, friendships and opportunities -- all long before any conviction in a court of law.

The right to be presumed innocent until proven guilty is one of the oldest and most important parts of our legal system, acting as a check on the government’s power to imprison its citizens. As a Fort Lauderdale cyber crime criminal defense attorney, I can assure you that it’s also very important to my clients -- the people who our system was designed to protect. Newspapers have a First Amendment right to publish mug shots. But as Hiaasen wrote, it’s not exactly journalism and encourages people to draw false conclusions, bringing it perilously close to a conviction in the “court of pubic opinion.”

Here in Miami, we saw a celebrity arrest of sorts recently when Palm Beach County police picked up Spanish-language television personality Adonis Losada on child pornography charges. Losada, of Miami Beach, is best known for playing Dona Concha on Univision’s Sabado Gigante sketch comedy show. According to a Sept. 26 article in the Miami Herald, Losada was identified and arrested after he sent undercover officers a picture of child pornography. He faces 18 counts of child pornography possession and 30 counts of distributing child and computer pornography -- and California authorities are reportedly building a similar case against him. He has also been suspended from his show during the investigation, according to Univision.

Boynton Beach police found Losada in an online chat room for people interested in child pornography, the Herald said, then convinced him to send the pornographic image. Investigators were able to connect that activity to Losada’s home address, then search his home and recover 18 images of child pornography. Police described some of the images as graphic and disturbing, involving very young children. Losada was arrested on those charges, but released on $90,000 bail. However, after being released on bail, he headed to Georgia, where he was arrested again and extradited back to Palm Beach County. Losada now faces the additional 30 counts of distributing child pornography, and prosecutors have asked for $3 million bail because of his attempt to flee.

The article does not lay out enough details for me to say for sure how I might, as a Miami-Dade child pornography defense lawyer, defend this case. But in any child pornography case, I take a close look at the evidence and whether it meets the requirements set out by the statute. For example, to convict someone of possessing or promoting material showing a sexual performance by a child, the prosecution must show that the defendant knew about the illegal nature of the materials. The circumstances may also cast doubt on whether the defendant truly possessed the materials, in a legal sense. After a close look at where the material came from, law enforcement’s investigative methods and other facts, a good Fort Lauderdale child pornography criminal defense attorney may be able to mount a strong defense, even if it’s not disputed that the materials were on the defendant’s computer.

As a South Florida child pornography criminal defense attorney, I will also watch this case to see if Losada is treated more harshly because of his celebrity. As we recently saw with Plaxico Burress, fame can backfire, particularly if prosecutors feel pressured to make an example of a defendant or prove they aren’t going easy on a celebrity defendant. Losada is accused of some very serious crimes; distributing child pornography is a second-degree felony penalized by up to 15 years in prison for each count. As disturbing as the allegations against him might be, and regardless of the pressures his fame might put on the justice system, he is entitled to a fair trial.