This much is certain – evidence was destroyed in a marijuana grow house case. The Defense believes the evidence would have established that undercover officers broke the law by committing at least a trespass and possibly a burglary to the dwelling of the Defendant before a search warrant was obtained. The case was already controversial in that Deputies obtained warrants by following vehicles parked at a hydrponics store which is likely unconstitutional based on a new Supreme Court decision. Having tried a federal grow house case in which there was insufficient evidence from the Government to convict my client, I believe that the recourses being used as well as the underhanded activities of law enforcement in these cases is unconscionable…
The evidence destroyed was surveillance video on the hard drive of a video recorder installed at the Defendant’s home. After an internal affairs complaint was filed by the defense attorney, the Pinellas County Sheriff’s Office found that Sgt. Taylor, a supervisor of the narcotics division, ordered the hard drive of the video recorder to be erased. His reason – he claims the video showed the bare faces of undercover Detectives and this could place them in future jeopardy.
The punishment for the Deputy? Suspension for five days and reassignment to patrol…This blog has noted that there are a large number of morally challenged officers who are not being fired. But my question is – why is he not in jail?
Law enforcement is not the final arbiter of what evidence is of value and what isn’t – the Courts are. It’s only the rule of law as established by the Courts which guards our rights as Americans keeping us from being a police state…No destruction of evidence should occur before the Defense, the Judge and a Jury has had an opportunity to view it. A judge would have ordered the faces of any Detectives to be redacted to preserve their future safety.
Why is tampering with evidence a felony punishable by up to five years in prison in Florida? Because the purpose of criminal justice is to find the truth. How can we find the truth if the Police tamper with evidence before the Court and a Criminal Defense Lawyer have an opportunity to view the evidence?
To protect the integrity of the Pinellas County Sheriff’s Office the following should be done immediately:
1. A grand jury must be convened to determine if laws were broken, and if so by whom including the possible felony of destroying exculpatory evidence with recommendations for proper protection of all evidence.
2. The FDLE and the FBI should investigate to determine if laws were broken and if so how far up the chain of command this went. Those supervisors with knowledge, those who acquiesced in crime, those who failed to stand up and do the right thing should be fired and prosecuted.
3. The State Attorney’s Office should be given the impartial investigation results and make a public decision on whether direct filing of felonies is warranted with factual explanations.
4. At the same time Federal Prosecutors should investigate to determine if any Federal laws were broken and if the systemic corruption within PCSO and the State Attorney’s Office can be rooted out.
Florida Statutes > Chapter 918 > § 918.13 – Tampering with or fabricating physical evidence
Current as of: 2011
(1) No person, knowing that a criminal trial or proceeding or an investigation by a duly constituted prosecuting authority, law enforcement agency, grand jury or legislative committee of this state is pending or is about to be instituted, shall:
(a) Alter, destroy, conceal, or remove any record, document, or thing with the purpose to impair its verity or availability in such proceeding or investigation; or
(b) Make, present, or use any record, document, or thing, knowing it to be false.
(2) Any person who violates any provision of this section shall be guilty of a felony of the third degree
The above Florida Statute applies in this case. There is no exception for law enforcement officers and it is specific that one can not “…alter, destroy, conceal or remove…” evidence in any case “pending or is about to be instituted.” If you believe a law enforcement officer has acted improperly in your case contact a Clearwater Criminal Defense Attorney for immediate help.
Could this be an inconspicuous undercover Clearwater Detective — about to do a burglary?
|Boris Kustodiev, Self Portrait, 1905
This blog in passing recently noted that the oldest sitting Federal Judge is Judge Wesley Brown of Kansas whose one caveat is “no lengthy trials” which makes sense at age 104 and if your favorite Pinellas crime lawyer was that old he’d be avoiding lengthy trials too…Your Clearwater Criminal Defense Blog must now report that Judge Wesley Brown died in his sleep several days ago.
At first it appeared that death might keep the longest serving federal judge in American history from continuing his work; however, according to his new law clerk – the deceased poet James Merrill – all future federal trials will be conducted by seance thru the services of the medium, Madame Sosostris, who despite having a bad cold is known as “the wisest woman in Europe with a wicked pack of cards.”
Lawyers are further instructed to bring the Federal Rules of Evidence, Federal Rules of Procedure and Ouija Boards to all future hearings, status checks and trials. Please note that the Ouija boards are not to be used to make cell phone calls nor to make contact over the internet with other deceased Jurists or legal scholars during trials & hearings.
Further, the Federal Court’s jurisdiction has now been expanded to include all above, beyond and within the celestial heavens. If you need a Celestial Clearwater Defense Attorney feel free to have your clairvoyant contact me anytime.
This blog recently noted that the U.S. Supreme Court would be making an important privacy rights decision on law enforcement’s tracking of individual American’s movements thru GPS; defining American privacy rights into the digital age.
The decision was handed down yesterday morning – the unanimous ruling of the Supreme Court will help each of us maintain privacy and freedom of action in this wondrous, yet humbling digital age of almost unlimited camera surveillance, GPS spying, and Cell phone tracking by requiring that all law enforcement officers including those in Tampa, Clearwater, St. Petersburg & Pinellas first obtain a search warrant before placing a GPS device on a vehicle or on a person (say, for example inside your coat, purse or backpack).
The result of this ruling heartens your Clearwater Defense Lawyer, by keeping American’s fourth amendment rights viable in an ever more fretful digital future. This case should also give grounds for the appeal of convictions in Pinellas criminal law cases described in an earlier Clearwater Criminal Attorney Blog where the Pinellas County Sheriff’s Office in a clear abuse of proper law enforcement procedure made secret videos of shoppers at a plant store taking down personal information only because people shopped there, though search warrants were later obtained the information was factually incorrect rendering those warrants facially invalid.
Without obtaining a proper search warrant the Government installed a Global-Positioning-System (GPS) tracking device on a vehicle. Government law enforcement agents then tracked the vehicle’s movements for 28 days subsequently securing an indictment of Jones and others on drug trafficking conspiracy charges.
The lower court reversed, concluding that admission of the evidence obtained by warrantless use of the GPS device violated the Fourth Amendment.
The Supreme Court Held: The Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment. Pp. 3–12.
(a) The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Here, the Government’s physical intrusion on an “effect” for the purpose of obtaining information constitutes a “search.” This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted. Pp. 3–4.
(b) This conclusion is consistent with this Court’s Fourth Amendment jurisprudence, which until the latter half of the 20th century was tied to common-law trespass. Later cases, which have deviated from that exclusively property-based approach, have applied the analysis of Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id., at 360. Here, the Court need not address the Government’s contention that Jones had no “reasonable expectation of privacy,” because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27, 34. Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test. See … post-Katz cases rejecting Fourth Amendment challenges to “beepers,” electronic tracking devices representing another form of electronic monitoring—do not foreclose the conclusion that a search occurred here. New York v. Class, 475 U. S. 106…
(c) The Government’s alternative argument—that if the attachment and use of the device was a search, it was a reasonable one—is forfeited because it was not raised below.
All in all a good day’s work for those folks on the Supreme Court – if you believe the police improperly obtained a valid search warrant in your case contact a Clearwater Crime Lawyer.
Three days ago the Federal Appeals Court with jurisdiction over Florida overturned a Doctor’s conviction in US v. Ignasiak because the government at Trial failed to produce witnesses for autopsy reports and handwritten testimony. The Doctor, known to his friends and family as ‘Dr. Bob’ in over twenty years of practice wrote hundreds of prescriptions for vicodin, oxycondin and other drugs and according to the government at trial contributed to the deaths of at least five of his patients, while causing many others to become addicted to powerful painkilling drugs.
From the opinion: During Ignasiak’s trial, the government introduced the autopsy reports of five of Ignasiak’s former patients in which the cause of death was determined to be, at least in part, intoxication from controlled substances… defense counsel objected based upon the Confrontation Clause…
Astonishingly, at trial the government failed to bring in the actual doctors who wrote the autopsy reports. Recently this blog noted the trend toward greater scrutiny of the Confrontation Clause which requires the government at trial to produce the actual witnesses who conduct laboratory and forensic evidence rather than merely producing the reports generated by the witnesses. If you’re a Doctor falsely accused of medical fraud, pain mismanagement or dispensing controlled substances call a Clearwater Drug Attorney for an immediate consultation.
The purpose of a trial should always be to find the truth. The truth can be found by a jury only if the Defense is allowed to question the expert authors of reports which are based on opinions and conclusions. This decision furthers the argument that it’s unconscionable that the government was allowed to introduce expert opinions at a criminal trial without being required to subject those opinions to cross-examination. All the Courts in Florida – State and Federal, including those in Tampa, Clearwater, St. Petersburg and Pinellas are bound by this decision.
Synopsis of the Case (Full U.S. v. Ignasiak Opinion): The Defendant was a doctor licensed in the State of Florida who appeals his convictions for dispensing controlled substances in violation of the Controlled Substances Act (CSA), 21 U.S.C. 801 and for health care fraud. The Defendant contends that the district court at trial abused its discretion by allowing the introduction of autopsy reports and handwritten medical reports without requiring testimony by their authors.
The Federal Appeals Court for the 11th Circuit reversed defendant’s convictions because the admission of the autopsy reports and testimony about those reports, without live in-court testimony from the medical examiners who actually performed the autopsies, violated the Confrontation Clause under the facts of the case and that because the government’s case was not overwhelming the violation of the Defendant’s right to cross-examine witnesses was not harmless error in this case.
Is Justice just a game? The purpose of a Criminal Trial is to find the truth – maybe it’s hiding behind black’s King…Checkmate!
|Daumier, The Chess Players, 1863.
A recent legal opinion in the 3rd DCA (Florida Appeals Court) overturned a conviction for Resisting Arrest Without Violence where it was found that the arresting officer was not engaged in the lawful execution of his legal duty when he told a juvenile to step out of the street for the juvenile’s safety.
When the juvenile refused to step out of the street the officer arrested him despite the officer having…. “no legal duty to insist on compliance and to enforce that insistence with arrest where the record shows that there were no circumstances warranting this,” which very likely is what your favorite Clearwater Defense Attorney might have said had he not been blissfully reading a mystery novel by flickering firelight at the time of this mishap or possibly simply dreaming of reading…Though this case is not binding in Tampa, Clearwater, St. Petersburg and Pinellas its reaffirmation of the English Common Law is well reasoned likely having a consistent result here.
At trial the officer testified as follows:
Q. Okay….Why did you initially tell him [the defendant] to get off the road?”
A. [Officer Kurless (think of his voice as coming from an impaired, nearly inebriated Sean Connery)]: Well for his safety, because cars be [sic] coming down the road and he could get hit, so we just told him to kind of step off to the side of the road.”
It’s ridiculous that to protect the child from harm the officer arrested him — placing him with criminals, destroying his reputation and ensuring that when the child grows up, for the rest of his life on any job application he’ll have to explain what happened so many years ago, because of a foolish overzealous officer who thru some horific leap of the space time continuum somehow envisions himself to be James Bond (see the above trial transcript excerpt). That juvenile needed a Pinellas Juvenile Defense Lawyer an attorney who can help any juvenile who has been charged with a crime in Pinellas County especially when it’s the officer who needs to be spanked. An arrest is among the worst things the government can do to one of its citizens, no arrest should ever be made unless there is good cause and certainly not to a juvenile…as a juvenile arrest has grave consequences.
The Court found that legal duty for an officer can arise in the following situations:
The case law provides that “legal duties” include (1) serving process; (2) legally detaining a person; or (3) asking for assistance in an emergency situation, or 4) impeding officers’ undercover activities by acting as a “lookout” during the commission of a criminal act…Although this is not an exhaustive list, it is clear that there is a difference between an officer who is engaging in the lawful execution of a legal duty, and a police officer who is merely on the job…
And the Court’s final ruling (over a furious dissenting opinion written to purge all Juvenile Jaywalkers from our streets) states emphatically that the English Common Law is still valid in Florida even if it’s not in England:
“If an arrest is not lawful, then a defendant cannot be guilty of resisting it — the common law rule still remains that a person may lawfully resist an illegal arrest without using any force or violence.”
|Clearwater Police are on the prowl…Be careful citizens.
You’d think Florida Law Enforcement Officers would be held to a higher standard. You’d hope Officers caught doing crimes would not only be prosecuted to the full extent of the law but be drummed out of service. If that’s what you believe – you’re wrong, as the this recent and ongoing series of articles, How Florida’s Problem Officers Remain on the Job from the Herald Tribune make clear: officers are getting away with every crime under the sun, crimes for which every other citizen is brought before judges and juries and if convicted punished with jail time.
Among the Herald-Tribune’s findings:
One in 20 active law enforcement officers in Florida has committed a moral character violation serious enough to jeopardize his or her career. Nearly 600 have two or more such acts of misconduct on their record and 30 current officers and prison guards continue to wear a badge despite four or more offenses.
Officers in Tampa, St. Petersburg, Clearwater and Sarasota have been accused of violence acts such as aggravated battery, grand theft, possession of drugs and sexual battery enough to keep your favorite Clearwater Defense Attorney busy for years. Five years ago in an earlier blog post I wrote about the systemic corruption in a bargaining sex for drug reduction scandal at the Clearwater State Attorney’s Office, now it appears corruption still exists in many Florida law enforcement agencies as can be seen in case studies of officer corruption.
For the law to be an effective deterrent to crime every citizen especially those sworn under oath to protect us, to defend us and to uphold our law must be subject to the law.
These corrupt officers should immediately be fired. A grand jury should be convened to indict those responsible at the highest levels of each law enforcement agency and each state attorney’s office who coddled these criminals.
If you believe that you are the victim of a crime at the hands of a Florida law enforcement officer you’ll want to contact a Pinellas Crime Lawyer immediately to determine what action to take including reporting the crime to federal watchdogs such as the FBI Tampa Anti-corruption Squad which can conduct complex undercover operations investigating any corruption in law enforcement agencies in Clearwater, St. Petersburg and Pinellas.
At least Deputy Sheriff Barney Fife was honest, incorruptible, loyal and kept his one bullet ready to defend – Barney we need you…
|Deputy Sheriff Barney Fife
- Favorite Quotations from Officer Barney Fife:
- “Floyd, if you would keep your mind outta Washington and stick to your barbering, I might get a better haircut. Now, what did you do with my sideburns?”, paying Floyd, “Here, go buy a barber book!”
- “If a chicken hawk is hanging around, a wise rooster doesn’t bury his head…he keeps his eye on the chicken” (advice for Andy on keeping Andy’s girlfriend safe from another man)
- “I’m sorry about this, but us lawmen can’t take chances!” –Barney (as he frisks an Older Woman at a roadblock, searching for an escaped convict) –“But Barney! I’m your mother!”
When parents are incarcerated what happens to their children – will their children be sent to foster care in Tampa Bay or will their children be sent to live with relatives who may not want them? Well known and alarming foster care failures in Tampa, Clearwater & Pinellas Florida have endangered the very lives of the children foster care was meant to protect.
In any case involving prison for parents the Judge should be made fully aware by the Criminal Defense Attorney of what the State of Florida intends to do with the children before sentencing. If the plan is to have the children sent to live with relatives its important to find out if the relatives have the means, passion and integrity to care for the children and depending on the ages of the children to determine if this is in their best interests.
With some finesse the Pinellas Defense Lawyer should become an advocate for the children urging the Court to weigh the damage incarcerating the parents will do to the children against the nature of the crime, the severity of the crime and the prior record of the parents. Clearly, the safety of the children should be the Court’s chief concern followed by the need to punish the parents under Florida law, in which case parenting issues during incarceration becomes critical as does this Florida Manual for Incarcerated Parents which contains important legal forms such as a power of attorney.
An excellent article, When a parent is incarcerated: a primer for social workers, helps to explain the many complex problems that can arise when parents are incarcerated, particularly if their children must go into foster care. It should also be helpful for attorneys to use in sentencing mitigation and helping clients cope with the anxiety of being away from their children.
|Van Gogh, Portrait of Camille Roulin, 1888
Portrait of Camille Roulin, 1888,
Another grass roots movement called Move to Amend may soon make siege to local Courts in Tampa, Clearwater, St. Petersburg and Pinellas. The new movement is similar and possibly a branch of Occupy Wall Street and Occupy Tampa, with the intent to impact the federal courts with an attempt to “occupy the courts” in major cities. Your Clearwater Crime Attorney tends toward the view that Juries and Judges should be the ones protesting, since they’re the ones stuck with having to listen to lawyers like me all day long.
On Friday, January 20, 2012 the movement plans to Occupy The Federal Courts of Tampa Bay.
In an email Donna Elm of the Middle District Court of Florida said she’d spoken to Federal Chief Judge Conway who said that the Courts bravely “intend to conduct business as usual,” and to expect delays. Also, the folks at the Federal Courts noted that everyone including attorneys and defendants should bring identification as there’ll be extra security and possibly long lines; and for everyone with Court business to arrive earlier than usual and to keep in mind that:“Part of our job is believing in American freedoms, and that includes all of them, such as the right to peaceful assembly and protest, as well as the right to open access to tribunals. Please be tolerant, patient, and polite to our visitors.” Sounds similar to the way your favorite Clearwater Criminal Lawyer approaches Christmas dinner with family…
So far it is believed that only courthouses in the Federal District Courts in Orlando and Tampa are targeted by the movement at this time. Nonetheless, it is possible that some folks may show up at other courthouses in the Tampa Bay area including the Criminal Justice Center in Clearwater, Pinellas County Florida.
The Florida Federal Judicial Nominating Commission is accepting applications for a United States District Judge position in the Middle District of Florida an area including Tampa, St. Petersburg and Clearwater, where your favorite Criminal Attorney presides over his golden retriever, Sancho and an occasional glass or more of red wine. Here is an interesting list of the folks who interviewed for the last Federal District Court vacancy. Will they still be interested?
The purpose of the Nominating Commission is to present the President with the best possible applicants, to take some of the politics out of the process, to make the process fair and transparent and to find a Judge whom the federal practice lawyers on the Commission trust to be – well, to be what exactly – fair and impartial or malleable? Unfortunately those members of the Commission who are attorneys are not barred from Federal practice making a farce of the entire process. Why have attorneys who practice in Federal Court on the Commission? Why have attorneys on the Commission? Isn’t that an automatic conflict of interest? Here is a list of the members of the the Middle District of Florida Nominating Commission.
The vacancy was created when Judge Gregory A. Presnell’s gained senior status. Though Federal District Judges are appointed for life, they can opt to take on a less stressful schedule by taking senior status. The oldest sitting Federal Judge is Judge Wesley Brown of Kansas whose one caveat is “no lengthy trials” which makes sense at age 103 and if your favorite Pinellas crime lawyer was that old he’d be avoiding lengthy trials too… Anyway, applications for the judicial appointment can be obtained from the Florida Bar Online or at any Costco with a $50 membership fee. Completed applications must be received by the Commission’s Statewide Chair and each Commission member in the manner specified by the Rules of Procedure by 5 p.m., Wednesday, January 18, 2012.
Potential Judges — get to work on that application & brush up on those interviewing skills.
|Vincent van Gogh, Man Writing Facing Left, 1881
Four international pharmaceutical companies are developing drugs that will for the first time make the most addictive ingredient in the drug hydrocodone available in a pure form, making the risk of addiction to Tampa & Pinellas Floridians that much greater, according to a recent article in the British press, which also states that the companies plan to make a pain killer called Zohydro which will be ten times stronger than vicodin. Will there now be ten times more arrests in Clearwater, St. Petersburg & Tampa that a Pinellas Drug Attorney will need to clean up in the arbitrary hope that law enforcement doesn’t destroy more lives than the drugs?
Here’s an excerpt from the British News Article:
Between 2003 and 2007 in the state of Florida alone, hydrocodone caused 910 deaths and contributed to 1,803 others…….Andrew Kolodny, president of Physicians for Responsible Opioid Prescribing told CBS: ‘You’ve got a person on your product for life, and a doctor’s got a patient who’s never going to miss an appointment, because if they did and they didn’t get their prescription, they would feel very sick…it’s a terrific business model…”Pinellas County has an effective drug court discussed in earlier blog entries with other solutions or decriminalization. The Courts are already overwhelmed with Defendants who are addicted because of misuse and abuse of the drugs being shoveled in their direction by the pharmeceutical companies.
Haven’t the drugs already available to Floridians destroyed enough lives? The companies insist that the patients can be monitored more closely in the future to avoid drug addiction. How? Look at the recent efforts by Floridian law enforcement to clamp down on prescription fraud and Pinellas Pain Doctors who give inappropriate prescriptions even at current lower levels of drug effectiveness.
Ever harsher drug laws are not the answer. Nor is it the answer for companies to knowingly make these drugs ever more addictive and available. The only priority of the pharmaceutical companies is to make more money.
A painting of a number of pleasantly satisfied Pharmaceutical Reps at a Tampa Bay Conference.
|Rembrandt The Anatomy Lesson, 1662