HAS THAT STOLEN GUN YOU BRING TO MY TAMPA BAY OFFICE EVER BEEN USED IN A CRIME?

Has that gun you just bought so you stand your ground with pride in Tampa Bay ever been reported as stolen? And even better, was the gun used in some sensational Florida crime? If intrepid  Clearwater Criminal Defense Lawyers want to know, so should you. Here’s how to find out if any gun with a serial number is stolen.

Wassilij Grigorjewitsch Perow were the rifles in this painting stolen in  Clearwater, Florida
 Hunters at Rest, 1871. Are these Florida Rifles stolen?
Go to the Florida Crime Information Center, which unfortunately is not the name of my office, but is part of the Florida Department of Law Enforcement. Simply put the serial number of the gun into the search engine, then presto like using a magic eight ball you’ll find out instantly if your weapon or firearm has been reported as stolen. There are also sections to check on other stolen property such as boats, vehicles, vehicle parts and license plates. Why not check everything you own?
What should you do if you are in possession of a stolen gun? If your favorite Clearwater Criminal Defense Attorney has told you once he’s told you a thousand times, don’t bring that damn firearm into my office, especially if you’ve murdered or shot someone with it. Don’t shoot my web page, it’s not the web page’s fault. Put the gun on the table. Walk away. Walk back to the gun. Unload the gun. Put the gun back on the table.

HOLD THAT BONG – FEDERAL APPEALS COURT UPHOLDS HARSH FLORIDA DRUG LAWS

Are Florida Drug laws unconstitutional? Your favorite Clearwater Criminal Defense Attorney sees Florida Drug laws as flawed in they do not require knowledge of drugs as an element of the offense, an element of the offense being what the State of Florida must prove in order to secure a conviction. 
First, about a year ago Federal District Judge Scriven lofted the ball onto the court for an ace finding Florida Drug laws were unconstitutional. Then the Florida Supreme Court tied the game finding that the Florida Drug laws are constitutional with some brilliant and entertaining arguments by the attorneys

Florida drug laws are constitutional yet the law destroys more lives than the drugs just like  absinthe
Guy du Bois, Absinthe House New Orleans

Now the Federal Appeals Court has decided that yep, those folks on the Florida Supreme Court must be given deference in their interpretation of Florida law; therefore, the controversial Florida Drug Statutes are constitutional and you, my reader with your warm bong, your cold beer, and your frozen pizza, what will you do as this game is finished?
Take heart. As lawyer Rosemary Cakmis reminds us in this email, the decision isn’t as encompassing nor definitive as it may seem:

Remember that Shelton came to federal court by way of a habeas petition under 28 USC 2254. So the attached decision, reversing Judge Scrivens’ famous decision ruling that the Florida drug statute is unconstitutional, is not as devastating as it may seem at first blush. The critical part of the 11th Circuit decision is on the last page:
“To be clear, this Court expresses no view on the underlying constitutional question, as we limit our analysis to AEDPA’s narrow inquiry.” Over the years, section 2254 has been (and continues to be) severely limited. And alleged errors in state court are not reviewed by federal courts under the same standard as federal courts use to review errors in federal proceedings…As relevant here, the federal court can only grant 2254 relief on a claim that the state court adjudicated on the merits if the state court decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 USC s. 2254(d).

Herein lies the problem. Judge Scriven found that a per curiam affirmence is not an adjudication on the merits under Florida law, and so the Florida court was not entitled to deference. The 11th Circuit disagreed, stating that it was compelled to presume the state court in Shelton’s case rendered an “adjudication on the merits,” which is entitled to deference in a 2254 proceeding.

In the end, all that the 11th Circuit decided today in Shelton was that the issue was “novel,” there was no Supreme Court precedent directly on point, and therefore the state court’s decision was not unreasonable. 

Clearwater Criminal Defense Lawyers note that the original issue came to Judge Scriven as a habeas corpus petition, which is a petition from a Florida inmate asking a Federal Judge to release him from prison because he shouldn’t be there. Yet with all this litigation somehow lost is the grim reality of this man named Shelton, his name gracing this case bandied about like a tennis ball slammed in bounds and out, who’ll remain a prisoner serving a long Florida sentence for his drug crime.

TAMPA POLICE PREPARE FOR HURRICANE OF MASS ARRESTS OF AGITATORS, ANARCHISTS & PROTESTORS IN FLORIDA

. Tampa Police will use a painted sign of Guy Fawkes as reason to arrest protestors
Guy Fawkes being arrested. 

Will a painted sign of the British anarchist Guy Fawkes, a few bricks and some pipes found atop a downtown building be used by the Tampa Police as a pretext for the making of massive arrests at the Republican Convention? After all, the five thousand officers need something to do, if they do it to you call a Clearwater Criminal Defense Attorney

Here’s the peaceful benevolent view of the role the officers will have during the Republican Convention from the chamber of commerce:

Another group that is busy preparing is police officers. Over 5,500 have been tasked with patrolling the convention and keeping the peace. Officers have gone through a specific training protocol that addresses how to handle protestors. 
First a warning will be issued. If it is not heeded, an arrest will be made. All of the police are encouraged to take their time in dealing with protestors so that peaceful resolutions are met. Traditionally, police forces are viewed negatively during convention times and often face criticism. Though chances are slim that this can be completely avoided, the force in Tampa is going out of its way to paint itself in the best light. 
All officers have been told that the primary concern during the protests is to protect the First Amendment right of freedom of speech. What they want to avoid is the “arrest first, figure out later” mentality… 

Maybe that’s the gloss you’d expect from the Chamber of Commerce for any Tampa event, especially the bit about the right to freedom of speech. Do they really mean that? Doesn’t sound like Hillsborough Sheriff David Gee is on the same page. His take on what his police will do can be found in a letter to the public his office just issued:

Tactically, we are ready. Security plans for the venue and the perimeters are set. Boundaries, protests zones and parade routes are established for the thousands expected in downtown Tampa…. To the agitators and anarchists who want only to bring a dark cloud to this event, let me be clear: criminal activity and civil disturbances will not be tolerated and enforcement actions will be swift. 

Rather than lend an ear to the freedom of speech, it sounds like the Sheriff stands ready for battle with the terrible swift sword of retribution. No wonder the Sheriff is reported to have emptied out the local jails for future arrests. Makes your favorite Clearwater Criminal Defense Lawyer wonder why the 1,700 folks were in the jail if they could be safely released or moved, but it’s clear evidence that Tampa Law Enforcement is preparing for the Republican Convention in the best way they know how: making mass police stops and arrests early and often.

WHAT MUST I DO WHEN FLORIDA POLICE STOP ME IN TAMPA BAY?

Criminal Defense Lawyers in Clearwater are often asked these questions: What should I do when a Florida Police Officer makes contact with me? How much information must I give, if any? And how many days will I get in jail if I steal the Officer’s hat?


Rembrandt - Painting of an Old Man in a Fur Hat. If you want to be arrested in Tampa Bay, Florida just steal a police officer's hat
Even Rembrandt knew it’s all about the hat.
As a rule of thumb when stopped by any officer (with or without his hat) who is readily identifiable as an officer, then you must at least correctly identify yourself to the officer. If you’re driving a vehicle you must also establish that you have a valid driver’s license and vehicle registration. If your goal is not to be arrested by Florida Police it’s also smart to be polite, reasonable and honest, not that you have to be under Florida law, except as to identity. You don’t have to consent to a search of your person or your vehicle, but in searching for weapons officers in Florida are allowed to frisk you (this is Florida after all).
But with the coming of that band of prosperous pirates set to lay siege to Tampa, known as the Republican convention, our local paper is warning that there’s likely to be some folks whose goal is to be placed under arrest while disrupting and protesting. And with that hope the police seem to be preparing for mass arrests in Tampa.
The Florida criminal justice system will welcome protestors with open arms as there exist enumerable ways to be branded as a criminal and arrested under our harsh Florida Criminal Statutes.
The quickest way to guarantee an arrest in Tampa Bay is to touch or strike an officer. Although Florida law is clear that an illegal arrest can be lawfully resisted, an illegal arrest can only be lawfully resisted without using force or violence against an officer. A mere unwanted touching of the officer that would otherwise be a misdemeanor Simple Battery will be charged as a felony Battery on a Law Enforcement Officer if the Defendant had knowledge that the victim was a Florida Police Officer.

Here’s some excerpts good advice from the ACLU for any police encounter in the sunshine state of Florida:

You don’t have to answer a police officer’s questions, but you must show your driver’s license and registration when stopped in a car. While on the street, if a police officer has reason to believe you’re involved in criminal activity and asks you for identification, you must show ID, identify yourself, or face possible arrest. You cannot be arrested merely for refusing to provide proof of immigration status.

You don’t have to consent to any search of yourself, your property or your papers. Police may “pat-down” your clothing if they suspect a concealed weapon. Don’t resist, but make it clear that you don’t consent to any further search.
Keep your hands where police can see them. Don’t run. Don’t touch any police officer. Don’t resist even if you believe you’re innocent.
        Ask if you are under arrest. If you are, you have a right to know why and you should ask to talk to a lawyer. Then tell the officer you wish to exercise your right to remain silent. If you are not under arrest, ask if you are free to leave.
        If you witness a police action that you believe is unfair, don’t interfere, don’t complain on the scene or tell the police officers they’re wrong. Call 911 and document everything you witness. Write down officers’ names, badge and patrol car numbers.

Yet despite all that here’s some hope for the Constitutional Right of being able to protest at the Republican convention:

You have a constitutionally protected right to engage in peaceful protest in “traditional public forums” such as streets, sidewalks or parks. But, the government can impose “time, place and manner” restrictions on speech by requiring permits. These restrictions are generally permissible as long as they are reasonable and not based on content. The government cannot impose permit restrictions simply because it does not like the message of a certain speaker or group.


And try to avoid taking the Florida Officer’s hat, it makes them very angry; I’m not sure why. Hope your next police encounter ends in such a way that you don’t need help from a Clearwater Criminal Defense Attorney, but if you do call anytime.

NEW STUDY SHOWS GENETIC TRIGGERS MAY PROVE PREDISPOSITION TO COMMIT CRIME: AN ARGUMENT FOR REDUCTION OF SENTENCES

even murder may have biological causes in Clearwater, Largo, St. Petersburg and Tampa Bay,
Lucas Cranach, Judith Victorious, 1530

Occasionally biology can be shown to be the direct cause of someone’s unlawful act. How responsible is someone for a crime committed where biology directly caused the crime, such as the murder of thirteen people in Texas by a shooter who was later found to have a brain tumor that seems to have been the bio-trigger of his actions? In essence aren’t we looking at the judo-christian notion of free will? Shouldn’t judges be given the discretion to look at bio-triggers where found as a plausible cause or contributor of an action because the Defendant must be found to have the unfettered free will to commit the unlawful act.

When evidence of a Defendant’s predisposition to commit violent crime was presented to Judges in a controlled hypothetical study of sentencing in a study recently reported in the journal Science, the Judges used the information to reduce sentences even where the bio-trigger arguably meant that Defendants were more likely to commit violent crime in the future, making at least one Clearwater Criminal Defense Lawyer glad that it was a hypothetical set of facts and that the hypothetical violent defendants live in darkest limbo rather than right next door.
This result of the study is path-breaking because Judges may be willing to reduce sentences where relevant biological testimony based on brain scans or other relevant neuroscience establishes that behavioral mechanisms of the mind and body were factors in unlawful conduct suitable for departure from sentencing norms. 

Will Tampa Bay Florida Judges be willing to use this kind of evidence? Don’t count on it. And if our Judges use the information in mitigation should they also be able to use it in aggravation of sentence?
Though the study only dealt with violent crime sentencing, your favorite Clearwater Criminal Defense Attorney believes that Defendants who establish biological propensity, necessity or inevitability for nonviolent drug crimes would also have an excellent argument to go under unfair statutory drug crime minimum mandatory sentences, where the discretion from Judges needs to be expanded to find better results.

FLORIDA FEDERAL PROSECUTORS DROP WAIVER OF COLLATERAL ATTACK & POST CONVICTION PROCESS IN TAMPA BAY PLEA AGREEMENTS

Federal plea agreements in the Middle District of Florida have long contained language which restricts a Defendant’s rights to appeal his sentence often rankling Clearwater Federal Defense Lawyers. Recently this law blog noted that the Florida Bar Association was in the process of finding plea waivers restricting collateral attack and post-conviction process could amount to unethical prosecutorial misconduct.

The United States Attorney’s Office has sent a letter acknowledging that the plea agreement wording must be changed to the evolving view of the Florida Bar as to what constitutes unethical conduct for Federal Prosecutors and Defense Lawyers. Though you’d think that the very fact each plea agreement contains the same boiler plate language would be sufficient to establish the unfair advantage Federal Prosecutors possess in the Federal Criminal Justice System in the Middle District of Florida 
The previous plea agreement wording with the new wording for future Plea Agreements in Federal Court in the Middle District of Florida are as follows:

Tall and narrow painting with a tree and man with admiration for the lotus around him, so we admire the Florida Bar for forcing the U.S. Attorney's office to change it's plea agreement language in the Middle District of Florida in Tampa Bay, Clearwater, Largo & St. Petersburg Florida
Maoshu Appreciate Lotus

Defendant’s Waiver of Right to Appeal and Right to Collaterally Challenge the Sentence.The defendant agrees that this Court has jurisdiction and authority to impose any sentence up to the statutory maximum and expressly waives the right to appeal defendant’s sentence or to challenge it collaterally on any ground, including the ground that the Court erred in determining the applicable guidelines range pursuant to the United States Sentencing Guidelines, except (a) the ground that the sentence exceeds the defendant’s applicable guidelines range as determined by the Court pursuant to the United States Sentencing Guidelines; (b) the ground that the sentence exceeds the statutory maximum penalty; or (c) the ground that the sentence violates the Eighth Amendment to the Constitution; provided, however, that if the government exercises its right to appeal the sentence imposed, as authorized by 18 U.S.C. § 3742(b), then the defendant is released from his waiver and may appeal the sentence as authorized by 18 U.S.C. § 3742(a). 

We are eliminating the references to collateral challenges to the sentence. The new standard appellate waiver will read as follows: 

Defendant’s Waiver of Right to Appeal the Sentence.  The defendant agrees that this Court has jurisdiction and authority to impose any sentence up to the statutory maximum and expressly waives the right to appeal defendant’s sentence on any ground, including the ground that the Court erred in determining the applicable guidelines range pursuant to the United States Sentencing Guidelines, except (a) the ground that the sentence exceeds the defendant’s applicable guidelines range as determined by the Court pursuant to the United States Sentencing Guidelines; (b) the ground that the sentence exceeds the statutory maximum penalty; or (c) the ground that the sentence violates the Eighth Amendment to the Constitution; provided, however, that if the government exercises its right to appeal the sentence imposed, as authorized by 18 U.S.C. § 3742(b), then the defendant is released from his waiver and may appeal the sentence as authorized by 18 U.S.C. § 3742(a).

 As you can see the language the U.S. Attorney’s office will shove down the throats of federal defendants still effectively eliminates most possible appeals. Until the Florida Bar takes a long look at the underlying notion of a lack of fairness from disproportionate bargaining power between parties in federal plea agreement negotiations, the rule of thumb from your favorite Clearwater Criminal Defense Attorney is for Federal Defendants to understand  before a change of plea to guilty that successful appeals from pleas in federal court are rare.

GOVERNMENT GONE WILD: FBI LISTS FANS OF HEAVY METAL RAP BAND AS GANG MEMBERS

The music group Insane Clown Posse has found that their fans have been listed as gang members by the FBI. The fans of the group are known as JUGGALOS and they’re having too much fun, damn them. 
The successful Band plays music that’s a potent brew of heavy metal rap with rhyming hard rock played while the singing duo wears their trademark clown faces. My knowledge is limited as your favorite Clearwater Criminal Defense Lawyer’s musical tastes tends toward Miles Davis jazz, so if any FBI investigators are reading this law blog please keep that in mind before placing me on your gang member list. 

John Lennon was not just a great musician he was a music fan & would be on a gang list in Clearwater, Largo, St. Petersburg & Tampa, FloridaOf course the FBI has a long history of harassing cultural icons in this country, not only making life difficult for some of the great jazz musicians, but with hundreds of pages of FBI investigations and secret eavesdropping of John Lennonthe leader of a Liverpool band that played a hedonistic subversively scuffled – yea yea yea – music, from what I understand. For fourteen years the FBI refused to release the investigative reports because it would infringe on national security. Oh those were the glory years for law enforcement and especially for the FBI. Yet until now now at least being a fan was safe with little risk other than tinnitus or not hearing what you wouldn’t want to know anyway


It must be a real time saver for the FBI to simply list all of the  fans of branded bands as a ‘gang members’ placing entire subcultures under strict scrutiny just because of the music they happen to enjoy or in irony might pretend to enjoy. In Florida the FBI list must be a helpful to local law enforcement, like the Pinellas County Sheriff’s Office, the St. Petersburg Police Department and the Largo Police Department as they can groom ever more youth to become future defendants by labeling them as gang affiliates and gang members angering parents. Now more Detectives will search an ever expanding network of lists of culturally suspect poets, writers and Liverpool bands by looking for the tale-tell signs of gang subversion in bumper stickers, facebook pages and downloaded itunes songs from the foolish fans, who thought their cultural tastes were part of what it means to be free in America. 
The Insane Clown Posse are suing the FBI for turning their fans into criminal suspects. There’s at least one Clearwater Criminal Defense Attorney who hopes this goes to a federal jury trial so that it will be FBI under close scrutiny for a change.

WHICH IS MORE BARBAROUS & INHUMANE, FLOGGING OR MINIMUM MANDATORY PRISON SENTENCES?

Are there any alternatives to long minimum mandatory prison sentences that ruin lives? Last year your favorite Clearwater Criminal Defense Lawyer suggested that defendants confronted with prison terms could be given the choice of prison time or a public flogging.
Now a philosophy blog looks at alternate punishment and finds that flogging might not be as inhumane as years of interminable lost time spent in prison. He notes that the long prison sentences are ineffective because people lack enough imagination and insight to fully comprehend how it would feel to lose one’s freedom for years within a prison. Here are some excerpts from The Philosopher’s Beard: Why prison doesn’t work and what to do about it:

Is public flogging better than mandatory minimum sentence in Clearwater, Largo & Tampa, Florida
Public Flogging in the 1900s

Prison time is a very severe punishment. JS Mill likened it to being consigned to a living tomb. Any society that employs it should do so with care and restraint… Aside from failing in humanity, prison does not even perform well at the specific functions of a criminal justice system, namely, deterrence, retribution, security, and rehabilitation. We need to reconsider our over-reliance on prison, and reconsider whether other types of punishment, including capital and corporal punishment, may sometimes be more effective and more humane.
The fundamental problem with prison time, as Mill notes, is that its severity is hard to imagine… It is hard to imagine quite how it must be to be confined to a small space and narrow routine for periods of years, or even until death. There is no great drama to focus on. No particularly terrible things happen. Just more of the nothing…
A punishment that is hard to imagine will not work very well. First, people contemplating breaking the law will not be especially deterred by dread of the punishment… When one considers the advantages of flogging more generally one can see that it measures up well against prison time, especially longer prison sentences (more than a year). Its drama makes it much easier to imagine, indeed to over-imagine, and so it should work better than prison as a deterrent. For the same reason, it also seems better able to satisfy legitimate demands for retribution by those who have been wronged…Yet, unlike prison, achieving this effect doesn’t require that large chunks of a person’s life be thrown away, together with their relationships and mental well-being. Thus, exactly because of its barbarism, flogging seems a more efficient punishment because the total suffering it inflicts is less. In my view, that makes it more humane.

Me, just bring in a doctor with a large enough needle – the sight of that will be enough to keep your Clearwater Criminal Defense Attorney  crime-free for years.

ANGRY PARENTS FIND THEIR CHILDREN ON SECRET GANG MEMBERSHIP LISTS IN FLORIDA

Parents are justifiably outraged to find that their children have been added to various lists as Florida gang members even when the youths are not troubled nor troublesome. The secret lists are used for ‘investigative purposes’ by prosecutors and law enforcement even when Clearwater Criminal Defense Attorneys establish that the the lists are not supported by trustworthy factual evidence.
In Florida Police Agencies can affix the tag of gang membership on unsuspecting youths even if they’ve never committed a crime, never joined a gang nor been found to have committed any uncharged misconduct. 
According to news reports the gang affiliation can be established by the police in the following ways:

  1. By being identified as gang members by their parents.
  2. By adopting a gang style of dress.
  3. By use of hand signals identified with gangs or 
  4. By associating with known gang members.

Apparently Tampa Bay police departments spend far too much free investigative time combing thru Facebook, Twitter and other social media cites, searching for personal information such as useful pictures that will establish gang membership or gang affiliation. 
If there’s one ‘known gang member’ at your child’s school, church or gym, then your child associates with known gang members. And  if one child is listed as an associate of gang members, then all of his friends and friends of friends and family must be as well.  So every youth who wears his pants a little low, listens to the latest music and uses the hand signals of the NBA is somehow a gang member or gang associate? What are these Detectives really looking for on their computers? They’re simply searching and finding minority children who don’t share the officer’s cultural values. And now it has even come to light that the FBI lists fans of a certain heavy metal or rap bands as gang members.

Are Florida police grooming children to become criminals by placing them on lists of gang members?
Van Gogh, Portrait of Camille, 1888

Are the police simply grooming these youths to assume the future role as criminals for the benefit of arresting police officers. It’s wrong and it should make not only the parents of youth unjustifiably placed on these lists very angry, but all of us angry about what this means about our community.
The Largo Police Department defends it’s extensive list of gang members told outraged Largo parents that there are over 500 gang members in Largo. That’s a ridiculous number of children targeted as gang members for a very small Florida city. As the list in time will encompass every child in the city, wouldn’t it be easier and fairer to just list them all as gang members now and be done with it? 


Certainly, your Clearwater Criminal Defense Lawyer believes that would be fairer than simply listing all the minority children as gang members or gang associates, putting each of them at greater risk of being subjected to inappropriate police contact, because they’re already suspects in the eyes of the Largo Police Department. 

POLICE PREDICT FUTURE CRIME WITH COMPUTERS: DEPUTY BARNEY FIFE DIDN’T NEED FANCY CHARTS

CNN Reports that many police agencies are experimenting with a sophisticated computer program called PREDPOL that can predict future criminal conduct (cue the sound of ominous otherworldly music over police sirens) by using patterns of crime, prior criminal behavior, locations of prior crimes and relevant sociological cultural information. Sounds like Clearwater Criminal Attorneys, if not Orwell, would have a field day debunking this as a secret big brother intervention especially if it proved effective. 

If police have reason to believe crime may occur at a particular place and time, then that place at that time will be subjected to close scrutiny, surveillance and possible police misconduct in an overzealous bid to stop what may happen as opposed to investigating what has happened. This kind of thinking is what has caused so much disarray in the notorious narcotics division of the Pinellas County Sheriff’s Department with unfortunate results and possible illegal activity by Tampa Bay Deputies. It would be useful if some sophisticated computer could determine when officers will do crime and be punished for it as some police officers caught doing crimes are not being arrested nor prosecuted in Tampa Bay, Florida.

Deputy barney fife blood hound of the law didn't need charts or computers to find future crimeYet stopping future crime by effective use of known criminal conduct sounds so new and modern, doesn’t it?  Not quite. The ideas behind this have been around for many years. Florida law enforcement and police agencies should simply watch old episodes of The Andy Griffith Show to find out about how to find and how to handle future crime. 

On October 9, 1961 in an episode titled Barney’s Replacement a clueless attorney is sent to Mayberry for law enforcement training. Soon he wows the Sheriff and Deputy Barney Fife when he accurately predicts a crime by using a chart he drew up of past crimes, past criminal locations and uncharged misconduct in Mayberry. But in the end those crime charts meant much less than knowing people, understanding them and helping them. Your Clearwater Criminal Defense Attorney agrees with Deputy Fife when it comes to effective law enforcement, “Good police work is more than just fancy charts…” And not just in Mayberry either.