Part of my job as a Miami criminal defense lawyer is to secure fair and reasonable sentences for my clients (when they are convicted). Every sentence has a range, but it can be affected by multiple factors, including prior convictions as well as the judge’s own discretion. Judicial discretion can keep defendants from serving unfair sentences, but it can also be abused. That was the contention of Carlos Cromartie in Cromartie v. State of Florida, a recent decision from the Florida Supreme Court. Cromartie did not contest his conviction for selling cocaine within 1,000 feet of a church, but he did argue that the trial judge’s policy of always rounding up sentences to full years was illegal under a previous Florida decision, Hannum v. State. The First District Court of Appeal upheld the sentence, but the Florida Supreme Court reversed and remanded it for resentencing.

Cromartie was convicted of both cocaine trafficking and possession of cocaine for sale within 1,000 feet of a church. His original sentence was computed according to a sentencing scoresheet that gave him a sentence of 93.975 months, which she rounded to 94 months, or 7.83 years. She then rounded it to 8 years. Cromartie’s attorneys later filed to change the sentence because the trafficking offense had been calculated as a Level 8 offense instead of Level 7. The new minimum sentence was 6.16 years, and the judge again said she would round it to 7 years. The attorney for Cromartie objected that the judge should use the same fraction of years, 0.2, that she did before. The judge said she always rounds up to full years because “that’s just my way” and “I don’t operate with that kind of precision.” On appeal, the First District Court of Appeal agreed with Cromartie that the judge’s rounding-up policy violates due process, but found he had not preserved the issue for appeal. Cromartie appealed again to the Florida high court.

That court reversed the First District. Under Hannum, it said, the Second District had found that the post-trial motion Cromartie used was not the correct way of preserving issues for appeal. However, the high court said, the Hannum court also found that a fundamental error in the sentencing process is always automatically preserved for appeal because it is equivalent to a denial of due process. The Florida Supreme Court adopted that rule in this case, and accepted jurisdiction to decide whether the error in Cromartie’s case was a due process violation. Cromartie’s post-trial motion objecting to the rounding-up policy could not raise the policy as a sentencing error, the court said, but the sentencing error in question was nonetheless a fundamental one. The judge improperly and arbitrarily extended Cromartie’s incarceration. Thus, it quashed the decision and sent it back for resentencing. A concurring opinion by Judge Pariente disagreed with the majority, saying the issue had been properly preserved for appeal. And a dissent by Judges Canady and Polston argued that the “minor impact” of the judge’s rounding-up policy on Cromartie’s sentence was not fundamental error.

As a south Florida criminal defense attorney, I suspect the judges would not find the impact so minor if they were arbitrarily obliged to serve ten months in prison. This decision is good news for Florida defendants and their families. Our judicial system requires prosecutors to prove their cases beyond a reasonable doubt, because its designers recognize that putting someone in prison is a grave responsibility that juries should be very sure about. The same philosophy underlies the high court’s decision on sentencing — people should be sentenced to the time indicted by their offenses, not that time plus however many more months it takes to create a round number. As a Fort Lauderdale drug crimes defense lawyer, I appreciate the court’s willingness to acknowledge that people convicted of crimes still have rights, and loved ones who also suffer while they are gone.

Continue reading " Florida Supreme Court Rules Trial Judge May Not Arbitrarily Round Up Sentences – Cromartie v. State of Florida " »

As a south Florida cyber crime criminal defense attorney, I’ve written here before about the harsh standard sentences handed down to child pornography defendants. A past conviction for a related crime can make those mandatory minimums even longer — but as the Sixth U.S. Circuit Court of Appeals found recently, the past crime must be genuinely related. In United States v. Gardner, Daniel Roy Gardner was sentenced to less than the 15-year mandatory minimum sentence for child pornography possession, because the judge was not satisfied that a previous conviction for sexual battery on his daughter applied as a sentence enhancer. Gardner was instead sentenced to nine years, and the prosecution appealed. The Sixth Circuit upheld the sentence.

Gardner was convicted in Virginia of indecent liberties with a child for acts on his daughter, Pride, who was 15 to 17 at the time of the assaults and suffered from a rare form of cancer. She died in 1998. In 2005, computer security software found child pornography on the computer Gardner used at work, and a followup visit by the FBI found 650 images and videos of child porn at Gardner’s home. A background check turned up Gardner’s Virginia conviction. However, most files were destroyed, and the existing paperwork was unclear as to whether Gardner had been convicted of sexual battery or indecent liberties with a child. This mattered because only a prior conviction for a child sex crime can trigger the higher mandatory minimum. Gardner pleaded guilty to possession of child pornography but objected to the enhancement, and the judge in that case ultimately decided there was not enough evidence to apply the enhancement. The prosecution appealed to the Sixth Circuit.

The Sixth upheld the sentence, finding that Gardner’s prior conviction did not involve sexual abuse of a minor. Under Supreme Court and Sixth Circuit precedent, it said, it was required to consider only the facts in the judicial record that the defendant agreed to (when the defendant pleads guilty). In this case, Gardner pleaded guilty to sexual battery, a Virginia crime that does not require that the victim be a minor. The indictment in that case said the minor was a child under age 18, but caselaw required the court to look only at the facts in the indictment to which Gardner actually pleaded guilty, the Sixth said. It also dismissed prosecutors’ claims that Gardner agreed to the facts in a Virginia pre-sentencing report because he failed to contest those facts. The Sixth agreed with the district court that the validity of the PSR was questionable. The PSR was inconsistent with other case documents as to both the conviction and the date; bore no official stamp and was dated before a hearing on additional facts. Because this strongly suggested it was not the final PSR to which Gardner assented, the appeals court declined to weigh it in the sentencing. Thus, it upheld the district court.

In the cases the Sixth Circuit discussed, the question is whether defendants can be sentenced later according to crimes they were charged with, or only the crimes they were convicted of. Though this may not seem like a big difference to people not involved in criminal justice, it’s very important to a Miami-Dade child pornography lawyer like me. Just because you are arrested or indicted for a crime does not mean you will be convicted of that crime. Anytime along the way, law enforcement could drop the charges or reduce them to lesser charges. A judge could dismiss the charges. Defendants can choose to plea-bargain and plead guilty to a lesser crime. And of course, defendants can be found not guilty in a court of law. Helping my clients achieve one or more of these results is my job as a Fort Lauderdale child porn defense attorney.

Continue reading " Prior Conviction for Sexual Battery Should Not Enhance Sentence for Child Pornography Crime – U.S. v. Gardner " »

Search warrants are a major part of my work as a Miami child pornography possession criminal defense attorney. Of course, my clients cannot be convicted without evidence that they actually (and knowingly) possessed child pornography, so evidence that they did possess the material must be legally obtained — and that means any search warrant in the case must be legal. That was the problem in Dougherty et al. v. City of Covina et al., a case from the Ninth Circuit finding a southern California police department had no probable cause for a search of Bruce Dougherty’s home computer. Dougherty, a sixth-grade teacher, was accused of touching a student inappropriately. On the strength of that accusation, and the officers’ past experience, the police department initiated a search of Dougherty’s home computer and other electronics.

Dougherty was accused in 2006 of touching a student’s breasts and looking at her buttocks, and further investigation turned up more allegations of inappropriate touching. The investigating officer wrote out an affidavit for a search warrant, swearing that his experience in juvenile sex crimes investigation meant he “[knew] subjects involved in this type of criminal behavior have in their possession child pornography.” The warrant permitted police to search Dougherty’s home and seize his computer, cameras and electronic media. The search took place soon after the warrant was signed on Oct. 11, 2006. Doughterty permitted the search even though the officers said they forgot to bring the warrant. The seized computers and other items were not returned until December 27, 2007. No charges were ever filed against Dougherty. He sued the City of Covina, the lead officer, Robert Bobkiewicz, and police chief Kim Raney. The trial judge dismissed the claim with prejudice, finding the police had probable cause for a warrant and Bobkiewicz had qualified immunity as an officer.

Dougherty appealed, and the Ninth Circuit vindicated him — to some extent. The Ninth found that no probable cause existed for the search warrant leading to the search of his home. Bobkiewicz’s affidavit relied only on his training and experience; it did not contain any facts connecting him with child pornography, either directly or through his status as a suspected child molester. Nor were there any such facts, the court noted; Bobkiewicz apparently did not even verify that Dougherty owned a personal computer. The Ninth further noted a split in the circuits on probable cause for a child pornography search when the defendant is accused only of molestation. The Ninth ultimately sided with the Second and Sixth Circuits, finding no probable cause, and against the Eighth. However, it went on to find that Bobkiewicz was entitled to qualified immunity because the law was unclear until this ruling, so Dougherty’s case against him remained dismissed. The Ninth also ended Dougherty’s claim against the City of Covina, saying he had never stated his claim adequately. Judge Brewster concurred in the immunity ruling but preferred the Eighth Circuit’s position on probable cause.

As a south Florida child pornography defense lawyer, I am pleased with this ruling. I agree with the Second Circuit that molesting a child is a separate crime from possessing child pornography (unless the molestation is part of producing child pornography), and thus, it is insufficient evidence to support a search warrant. Remember, all Americans have a Fourth Amendment right against unlawful search and seizure, and that means the bar for a search is justifiably high. It is unlikely that courts would support a warrant to search for child pornography based on a different separate crime, such as a firearms violation, and the Ninth Circuit’s decision says molestation should be treated the same way. However, as a Fort Lauderdale cyber crime criminal defense lawyer, I know the split in the circuits means this issue will probably wind up in the Supreme Court.

Continue reading " Molestation Accusation Alone Cannot Support Search of Defendants Computer – Dougherty et al. v. City of Covina " »

As a Miami-Dade immigration attorney, I was very interested to see an announcement last week of a major shift in immigration enforcement priorities. As the Associated Press reported, the Obama administration has ordered Homeland Security to prioritize deportation cases involving people convicted of serious crimes and de-prioritize deportation of people who have committed no or minor crimes. The move affects about 300,000 pending deportation cases, which will be reviewed to see which ones meet the new criteria. White House officials said the new guidelines also apply to future cases, meaning law enforcement will be asked to avoid arresting or prosecuting immigrants with no serious criminal history. Homeland Security Secretary Janet Napolitano said the change would focus DHS resources on the highest-priority cases.

The administration’s announcement changed no laws. Individual cases will not be dropped or modified automatically, although an experienced south Florida immigration lawyer may be able to make changes for individual clients. But the change represents a major shift in policy, because previously, law enforcement officers were permitted or even required to deport every immigrant they knew to be illegal. Under previous policy, especially the controversial Secure Communities program, immigrants were being referred for deportation even when they were accused of nothing at all, had charges dropped or were convicted only of misdemeanors. Even some who only came to the police’s attention as victims of crimes ended up in deportation proceedings, critics said. Under the new order, authorities are asked to prioritize people who are known gang members, serious criminals, a threat to national security, recent arrivals or repeat immigration offenders. DHS will review the 300,000 pending cases on a case-by-case basis.

This is great news for members of south Florida’s vibrant immigrant community who are in immigration trouble or could be. But as a Fort Lauderdale immigration violations attorney, I want immigrants in trouble to know that the announcement will not necessarily affect their cases. There are no new laws, and prosecutors may or may not drop cases of people who should be “low-priority” under the new rules. That means that even if you are in the low-priority category, you may still need an attorney’s help to have your case dropped. Also, there are no new forms to fill out, nothing to sign up for and no fees to pay. Do not give money to people who claim they can help you file for “amnesty,” a green card or any other federal benefit. Scammers who call themselves immigration consultants or notarios may claim they can help for less than a lawyer would cost, but they often take clients’ money and disappear.

Continue reading " South Florida Immigrants Should Be Careful After Immigration Enforcement Announcement " »

Because I am a Miami drug crimes defense attorney, I was interested to see a news item about a judge's decision that could have a major effect on drug cases in south Florida. As the Miami Herald reported, Miami-Dade Circuit Judge Milton Hirsch threw out 39 drug cases on Wednesday because of a federal court ruling against a 2002 change to Florida law. That 2002 change allowed prosecutors to prosecute people for drug possession even if they did not realize they were carrying drugs; federal district judge Mary Scriven ruled three weeks ago that this was "draconian." In response, Hirsch dismissed all 39 drug cases, regardless of whether the defendants claimed they didn't know they were carrying the drugs. The defendants are still in jail because Hirsch suspended the ruling for a week to allow prosecutors to appeal; they say they will.

This could open new defenses for people facing drug charges here in south Florida. If you have been convicted of narcotics charges and you didn't realize you were carrying the drugs, you may also be able to seek release from prison or other relief. To discuss your legal options, call Seltzer Law, P.A. right away at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

As a Miami-Dade burglary criminal defense attorney, I was interested to read a recent ruling from the state appeals court that serves South Florida, the Third District Court of Appeal. In Rafael Mattaranz v. State of Florida, the defendant appealed his conviction for murder and burglary on the grounds that he should have been permitted to strike a juror. The juror had expressed concerns during voir dire that she might “lean toward the State” because she had been a victim of burglary and her cousin had been a victim of identity theft. She eventually concluded that she would need to hear the entire case before deciding guilt, and sat on the jury. Mattaranz appealed his conviction, arguing that the trial court should not have denied his challenge to the juror for cause.

The juror originally told the court about a past burglary of her family, which happened when she was a child, and the identity theft. In particular, she said she “holds a grudge” against the identity thief because of the way it affected her family. Under questioning, she said she could have an open mind but leaned more toward the State, but after another explanation, she agreed that she could put aside her feelings in order to decide whether Mattaranz was guilty beyond a reasonable doubt. She said repeatedly that she would have to hear the entire case before deciding guilt. The defense lawyer challenged her for cause, but the court denied the motion, so the defense attorney used a peremptory challenge on her. However, at the end of voir dire, the defense lawyer moved for another peremptory challenge, arguing that five jurors should have been struck for cause, and did not name the juror in question. Only one juror deemed objectionable by the defense eventually sat on the jury that convicted Marraranz.

On appeal, the Third District upheld the trial judge’s actions. Under well-established law, it wrote, trial judges must decide whether jurors can lay aside prejudice or bias and render an impartial verdict; and those decisions must be upheld if the record supports them. In this case, the court found enough evidence that the juror in question was able to be fair and impartial. Equivocation is not itself evidence of lack of impartiality, it noted. Thus, it could not find that the trial judge’s decision was incorrect.

This issue is highly relevant to my work as a south Florida murder criminal defense lawyer. It has been said that cases are won or lost according to who sits on the jury, and in fact, the Supreme Court has found that excluding jurors based on their race violates the defendant’s civil rights. As a result, every competent criminal defense attorney is very careful about the selection of the jury, even though this is only a preliminary to the evidence presented at trial. When looking for jurors who might be less than favorable, as a Fort Lauderdale criminal defense attorney, I look for people who might have any kind of bias against the defendant or the crime of which the defendant is accused. This can include being a victim of a past crime, as in this case; racial or gender bias; personal acquaintance and more.

Continue reading " Florida Appeals Court Rules Defendant Not Entitled to Strike Juror Despite Past Burglary – Mattaranz v. State " »

As a cyber crime criminal defense attorney in Florida, I was very interested to see an appeals court decision on the sentence of a Florida hacker. United States v. Marcus Barrington grew out of the case of three Florida A&M University students who tried to hack into their school’s grading system in order to change grades, add credits and change residency status for themselves and several friends. Barrington and his co-conspirators used keylogger software, which tracks every key pressed on a keyboard, to discover username/password combinations for people in the school registrar’s office. Barrington was ultimately charged with conspiracy to commit wire fraud using a protected computer; accessing a protected computer with intention to defraud; and three counts of aggravated identity theft. He appealed those convictions as well as his sentence of seven years in prison.

Barrington was accused of conspiring with Christopher Jacquette and Lawrence Seacrease to change information in the registrar’s office computers. After it became clear that they were under investigation, they started changing grades for students they didn’t know, but continued to change their own as well. In all, they caused more than 650 grade changes for 90 students, and the cost of the grade and residency changes totaled $137,000. Eventually, investigators obtained search warrants and found evidence including usernames and passwords of registrar employees. Jacquette and Seacrease pleaded and became government witnesses; Barrington fought the charges in court, saying he was present but otherwise not involved in the conspiracy. This was rebutted by Barrington’s own Rule 11 proffer as well as testimony from a friend whose grades he had changed. He was convicted.

On appeal, Barrington argued that testimony on his prior offline grade-changing was inadmissible; that testimony of a pending burglary charge against Jacquette should have been admitted; and that the evidence was insufficient on the identity theft counts. None of these arguments held water with the Eleventh Circuit. The prior grade-changing was also done at Florida A&M, but with physical forms rather than online; indeed, the online grade-changing was undertaken after the conspirators ran out of forms. Thus, the court said, it was fair for prosecutors to use it to show Barrington’s intent. Nor did the trial court err when it barred testimony about Jacquette’s pending burglary case, the Eleventh said, since the case was unrelated to Barrington’s prosecution and Jacquette’s testimony would not affect the likelihood of his conviction for burglary. On the identity theft counts, Barrington argued that the usernames and passwords were university property and not personally identifying information, but the appeals court disagreed. Under the relevant law, it said, a username and password is “means of identification.” After dismissing with arguments relating to sentencing, the Eleventh Circuit upheld the trial court on all counts.

As an identity theft criminal defense lawyer, I’m always interested to see a federal appeals case on counts like wire fraud and accessing a protected computer. Most hacking cases are about money — stealing credit card numbers or other protected data to sell to identity thieves. In this case, it could be argued that the hacking was a fraternity prank gone way too far, although of course, changing grades is also a kind of profit-seeking. Notably, Barrington’s seven-year sentence is much longer than the 22-month sentences of his co-conspirators, both of whom cooperated with the government. Whether to take a plea deal is a very important decision with a lot of factors involved, including what you are offered in exchange and personal relationships. But as an hacking criminal defense attorney, I would advise any defendant as young as Barrington to seriously consider a fair deal that could shave so much time from the sentence.

Continue reading " Eleventh Circuit Upholds Sentence for Hacking Florida A&M University Online Grading System – U.S. v. Barrington " »

Here in Florida, and in several other states, the standard breath testing machine is the Intoxilyzer 8000. This is the most recent in a series of “breathalyzer” tests used by Florida law enforcement to determine whether drivers are over the 0.08 legal limit. Like all machines, the Intoxilyzer must be maintained and inspected to ensure that it gives correct readings. If police agencies don’t do this, any DUI arrests they later make are suspect and could be challenged by an experienced south Florida drunk driving criminal defense lawyer. A similar situation in Montana created that state’s Supreme Court ruling in State v. Gavin Johnston. Johnston successfully moved in trial court to suppress Intoxilyzer evidence, but the state high court overturned it, ruling that the Intoxilyzer did not need to be field-tested as often as the trial court believed.

Johnston was arrested and breath-tested on April 23, 2010, using the Intoxilyzer 8000. The machine had been inspected and calibrated on April 14 and tested on April 15. He blew 0.12 and was charged with fourth-offense DUI. At trial, Johnston moved to suppress his test results, arguing that the machine should have been field-tested within a week of his breath test. This assertion was based on the Montana Supreme Court’s ruling in State v. Gieser, earlier in 2011, which referred to state administrative rules requiring that breath test machines be inspected and calibrated on a “weekly basis.” The trial court noted that the rules had been changed in 2007 and now required monthly testing and calibration. Nonetheless, it said it was bound by state Supreme Court precedent and suppressed the test result. The state appealed.

The Montana Supreme Court made short work of the issue. The undisputed facts show that the machine was properly calibrated and tested according to the most recent 2007 rules, it noted. The statement in Gieser that machines should be tested weekly was an error because the rule had been changed. Furthermore, it said, its decision in Gieser was not about when breath test machines should be tested; it was about ineffective assistance of counsel. Because the testing of the machine was not an issue in that ase, the incorrect statement was dicta without binding force. A previous opinion, State v. White, was not controlling because the test in the case was administered before the rule change. Thus, it overturned the trial court’s decision and ruled that Johnston’s breath test was legal and admissible.

As a Miami DUI defense attorney, I’m happy to say that the calibration and testing requirements in Florida law are not generally disputed. However, defense lawyers frequently do dispute whether those requirements have truly been met. In some cases, law enforcement officers have been known to put machines into service even when they fail tests, sometimes unplugging the machine when it clearly will fail. Machines also sometimes flag the breath sample as insufficient even when the driver has blown more than enough air, because of a software problem. And Florida has seen some high-profile challenges in the last few years to the practice of not releasing the source code to the machine’s software, which some Fort Lauderdale intoxicated driving defense lawyers say makes it impossible to see if the test is accurate. As of this spring, the machine was not even admissible in two Florida counties, casting doubt on its future — which is why Florida DUI defendants should think twice before pleading guilty.

Continue reading " Montana Supreme Court Declines to Suppress Test Results From Intoxilyzer in DUI Case – State v. Johnston " »

When people accused of online crimes come to cyber crime criminal defense attorneys like me, one of the most common crimes they face is solicitation of a minor. Here in Florida, solicitation of a minor is the crime of using a computer network to attempt a sexual act with someone under the age of 18. Other states might call it enticement or seduction, but in general, defendants can be charged with a crime even if no actual meeting takes place. In fact, court rulings and some legislative action have made it clear that the “minor” can actually be an adult law enforcement officer posing as a minor. That was the case in State of Missouri v. Kasim Faruqi, a Missouri Supreme Court ruling upholding the conviction of a St. Louis man accused of enticing a minor. The court ruled Faruqi was not entitled to suppress the evidence from either his statements to law enforcement or the search of his work computer.

Faruqi, of suburban St. Louis, struck up an online relationship with a police officer pretending to be a 14-year-old girl named Kaitlin. Over online chat and phone calls, he quickly made it clear that he’d like to have sex with Kaitlin, even though he knew it was illegal. He eventually agreed to meet her in a park, where he was arrested instead. Detectives told him they were investigating complaints from Kaitlin’s parents, and he admitted verbally and in writing that he had chatted with a 14-year-old girl about sex and arranged to meet. He also signed a form authorizing a search of his work computer, which turned up evidence of the chats. However, at trial, he told the jury he believed Kaitlin was really an adult playing out a fantasy; and that his written statement was coerced because the interviewing officer lied about Kaitlin’s parents and told him he could go home if he confessed. He also challenged the enticement law as unconstitutionally vague, a motion that failed. He was convicted and sentenced to five years in prison.

On appeal, Faruqi argued that his statements to police were involuntary. The Missouri Supreme Court concluded that they were not. Faruqi argued that the lie about Kaitlin’s parents was a threat to sue and that inquiries about his native country were a threat of deportation. The high court found nothing in the record to show that detectives asked about Faruqi’s immigration status; questions were about customs in his native Pakistan surrounding sex with children. Nor was a lawsuit ever mentioned. Finally, the court dismissed Faruqi’s argument that the computer search was unlawful because he signed a waiver permitting it, and had a diminished expectation of privacy on his work computer in any case. Thus, the high court upheld the trial court on every count.

As an online solicitation of a minor lawyer, I’m sorry to say that this is a familiar story. The evidence-suppression arguments are a common theme when someone is accused of a crime, but Faruqi’s arguments were just not strong enough. As a general rule, police officers can lie as much as they want as long as the lie does not “offend societal notions of fairness.” It’s basically up to a judge to decide whether a lie is fair, and judges are unlikely to decide in favor of competent adults who were properly Mirandized. This is why I always, always advise potential defendants never to say a word without a solicitation of a child online attorney by their side.

Continue reading " Missouri Supreme Court Declines to Suppress Evidence in Solicitation of a Minor Case – State v. Faruqi " »

The federal Department of Justice announced today that it has made 52 arrests of people it says were involved in an international ring of child pornography traders. In all, 72 people are charged, but 20 are known only by their online identities and have not yet been located. All were allegedly involved in a closed online community called "Dreamboard," which was a members-only bulletin board that required members to upload child pornography to join and to gain privileges. Fifteen of the 52 arrested are accused of making their own child pornography. The Orlando Sentinel's Aug. 3 story did not name newly arrested people, but noted that the operation had already arrested 32-year-old Michael Biggs of Orlando, who pleaded guilty and is now serving 20 years in prison.

This is a sobering reminder of how seriously our society takes online child pornography. At Seltzer Law, P.A., we focus our practice on defending people accused of all kinds of cyber crimes, including child pornography crimes. If you or someone you love is in trouble, in south Florida or anywhere else in the U.S., and you'd like to talk with an experienced child pornography defense attorney, call us today at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

As a Miami-Dade drug crimes criminal defense attorney, I often look for problems with a search when I’m representing drug defendants. With drug crimes, searches are very important because even non-possession crimes are difficult to prove without evidence that the defendant possessed the prohibited narcotics. That’s why I was interested to see a recent Florida Supreme Court decision in Moreno-Gonzalez v. State of Florida, a case involving possession of relatively large quantities of marijuana. Alfredo Moreno-Gonzalez of Dade County wanted to suppress evidence from a police search that found the drugs on his property, because a police detective failed to sign the affidavit for the warrant. The trial court agreed that the evidence should be thrown out, but the Third District Court of Appeal reversed that and the Florida Supreme Court upheld it.

Miami-Dade detectives believed there was a marijuana growing operation at property owned by Moreno-Gonzalez. Detective Lourdes Hernandez submitted an affidavit and got a search warrant for the property, but despite initialing every page and swearing to the affidavit’s truth, and despite the judge’s approval, she forgot to sign it as state law requires. A later search turned up 47.5 pounds of marijuana on the property, and Moreno-Gonzalez was arrested. Before his trial, he moved to suppress the evidence because of the forgotten signature, plus substantial discrepancies between the accounts of the officers involved in the search. The trial court granted this under state law only, explicitly saying that no constitutional arguments would be addressed. The state appealed, however, and the Third District overturned that decision, citing U.S. Supreme Court caselaw saying that technical requirements of elaborate specificity are not proper for warrant affidavits. Thus, because Fourth Amendment caselaw is incorporated into the Florida Constitution by reference, the Third District ruled the lack of a signature was but a “technical” flaw.

On appeal, the state high court upheld the result, but not the appeals court’s reasoning. It started by ruling that this was not a state or federal constitutional issue, but one of statutory compliance. It then went on to note that it’s undisputed that Hernandez did not sign the warrant. Nonetheless, the Supreme Court did not find this fatal to the state’s case. The purpose of signing a search warrant is to prevent perjury, the court said. In this case, however, there was an added level of protection because Hernandez swore to the truth of the affidavit in front of the judge who signed the warrant, and initialed each page. Nothing in the record shows that the failure to sign was anything but a mistake, the court noted. It noted that it does not generally approve of carelessness with warrants, but said this was a technical error that should not stymie justice. Furthermore, it noted that Florida law allows authorization by oath as well as by signature. Thus, it upheld the Third District with different reasoning. It remanded the case with express instructions for the trial court to consider the credibility of the law enforcement witnesses, which may form another basis for suppressing the evidence.

There is a lot in this decision to interest a Fort Lauderdale narcotics criminal defense lawyer like me. I certainly agree with the high court that law enforcement officers should be held responsible for mistakes with search warrants. It’s disappointing that this failure to sign the affidavit was dismissed as a minor technical flaw, but as the court noted, this is not the only basis for questioning the warrant’s validity. I also appreciate, as a south Florida drug crimes defense attorney, that the high court thought the differing stories provided by various law enforcement officers was a cause for concern. If one of the officers is not telling the truth, he or she must be identified and removed before he or she can convict someone with a lie.

Continue reading " Florida Supreme Court Allows Search Evidence Despite Error on Warrant – Moreno-Gonzalez v. State " »

A federal appeals ruling about a child pornography trafficking defendant caught my eye as a cyber crime criminal defense attorney. In United States v. Adams, the sole question was whether Carl Adams of central Illinois should receive a lower sentence than the range imposed by the sentencing guidelines for his crime. Adams contended that his sentence should have been even lower, but the judge was improperly influenced by a mistaken belief that child pornography defendants “suffer from an uncontrollable illness.” The government had argued for a sentence at the bottom of the sentencing guidelines, which was higher than the one Adams received. The Seventh U.S. Circuit Court of Appeals ruled that the judge did not make a mistake and let the sentence stand.

Adams was originally identified by Florida FBI agents searching for child pornography through LimeWire, an online file-sharing program. They alerted Illinois law enforcement officers, who got a search warrant and found ample child pornography on two computers belonging to Adams. He eventually pleaded guilty to using the Internet to traffic in child pornography. At his sentencing, he argued for a low sentence, citing his service in the Air Force, lack of a criminal record and steady employment, as well as studies concluding that viewing child pornography does not make the offender more likely to commit “hands-on” or “contact” offenses against minors. At the sentencing, the district judge opined that looking at child pornography is an uncontrollable illness beyond the viewer’s control, and thus he was not confident that Adams would not reoffend. He then sentenced Adams to 180 months (15 years) in prison, longer than the five years Adams requested but beneath the 210 months (18 years) requested by the government.

Adams appealed, arguing that the judge incorrectly relied on unsupported beliefs when sentencing him. The Seventh Circuit did not agree. There was no evidence in the record that the judge was making a finding of mental illness, the court said. In fact, it said, the trial judge went on to say that he was basing the sentence in large part on the need to deter other offenders who might think twice about looking at child pornography. Indeed, the Seventh noted, if the judge believed looking at child porn is an illness beyond control, it would make no sense to try deterring future offenders. And while the judge didn’t specifically address the studies Adams brought up, he was not required to do so; and he did acknowledge that Adams was unlikely to commit a “contact” offense in the future. Thus, the Seventh affirmed the 180-month sentence.

Although this decision did not go the defendant’s way, I still believe there are lessons here for child pornography criminal defense lawyers and their clients. For one thing, it’s unfortunately not unusual for prosecutors, judges and jurors to make the kinds of comments cited in this opinion. Some people are not able to separate their personal feelings from the jobs they have in the criminal justice system, and when they make comments that are judgmental or disgusted, they can subvert the trial. This would be an appropriate reason for appeal if it were the sole basis for imposing a high sentence. As a child porn criminal defense attorney, I sometimes make strategic decisions about juries especially to avoid this kind of situation.

Continue reading " Seventh Circuit Rules Downward Departure Acceptable for Child Porn Defendant – U.S. v. Adams " »