How far should the government go to catch law breakers? Its always surprising to Clearwater criminal defense attorneys that the government would ever deem it necessary to violate the very criminal laws it seeks to enforce. Yet law enforcement officers seem as incapable of not violating laws as do the criminals they seek.
|FBI: Most Wanted?
Recent press reports note that the FBI has begun using tactics often employed in drug cases to find those who seek to possess child pornography. After gaining control of a bulletin board that distributed child pornography the FBI continued to run the the webpage for two weeks.
During that two week period the FBI effectively delivered thousands of child pornography images later using the information gained from the deliveries to obtain search warrants from federal judges.
Since those who participated in the ongoing activities of the bulletin board likely did so of their own accord it’s unlikely that the FBI could successfully be accused in Federal criminal court in the Middle District of Florida in Tampa of setting these people up or entrapping them.
For an entrapment defense to be successful it’s necessary for the Defense to establish that the unlawful act would not have been something the Defendant would have done but for Government inducement. Even with Government inducement an entrapment defense fails if there’s a finding of a predisposition to commit the crime. Was the Defendant a wary innocent or an unwary criminal readily using the opportunity to commit the crime?
The Florida sentencing guidelines as well as the Federal sentencing guidelines prescribe harsh punishment for sex offenders in possession of child pornography despite there being no actual victim contact often resulting in more significant sentences than for those who have actually molested children. Clearly the harshest punishments should be aimed at those who harm children the most. Yet Judges often do not have sufficient discretion to give fair sentences in child pornography cases.
Further, the Government has begun pursuing child pornography cases even where there is no proof of outlawed images on a computer arguing to Federal Judges that the mere hash value Tag is sufficient as an indicator of a violation of the law.
Federal criminal defense lawyers agree that protecting children is a laudable goal for the FBI, but being a party to the distribution of child pornography only tarnishes the respect for the FBI and respect for the law.
It use to be that violating federal law in American required deceit, fraud, illegal drugs, unlawful firearms or violent acts and at least an intent to do a criminal act combined with forethought and planning, but now it’s easy to become a federal fugitive in America.
Just unlock a cell phone without the permission of your cell phone carrier and you could have the FBI knocking at your door as you fumble for the number of your favorite Clearwater criminal defense attorney who will grimly note that a first offense carries a punishment of up to five years imprisonment and $500,000 fine with a second time punished by up to ten years in federal prison and a $1,000,000 fine.
How will the actual sentences be determined? The federal sentencing guidelines will be used to find out exactly what the recommended sentence is that the Federal District Judge will impose.
How does the continuing process of overly-broad statutes, technical charges and over-criminalization of American criminal law move forward?
Because an indifferent, inept Congress not only bends to the will of powerful special interest donors such as the cell phone carriers rather than to what is best for Americans, but also Congress allows federal criminal laws to come into existence without actually codifying the act as a crime.
As the Atlantic Magazine notes, a major cause of the problem in this instance was that Congress shifted responsibility for exceptions to copyright law to bureaucrats who allowed cell phone unlocking to become a federal crime even if Congress did not intend it.
Until unlocking a cell phone was recently made into a grave federal crime, the Federal Courts ruled that it was permissible for anyone to jailbreak a phone, as the property rights to the phone belong to the buyer not the carrier.
What is the real impact of this law? We know Federal prosecutors can not be entrusted to use their discretion. Although many prosecutors may not waste resources prosecuting mere cell phone unlocking Americans, anyone who violates the provisions of this act is in fact subject to possible criminal penalties if convicted.
But prosecutors routinely abuse the power they’ve already accumulated to the detriment of good Federal judges ability to give fair, reasonable and enlightened sentences.
The real question for Federal criminal defense lawyers is how many Americans will find their lives ruined once ensnared by this foolish new criminal law?
Clearwater criminal attorneys who practice in the Federal criminal justice system court system are often dumfounded by the senseless Federal Sentencing Guidelines. Congress continues to create new Federal offenses for a wide range of criminal conduct that was once the purview of state courts. And counterintuitively as more petty misconduct becomes federal, that same misconduct draws ever harsher punishment merely because it is federal.
Some members of Congress are considering expanding the safety valve provision to apply to cases other than those involving drugs. The idea is that most Federal sentencing is far too harsh especially when minimum mandatory sentences are triggered.
Even when a Federal drug defendant avoids a minimum mandatory sentence and gains a two level downward departure for safety valve, the harsh prescribed sentence rarely seems to be based on a fair consideration of the actual facts and circumstances of the case. Instead the sentence will be based on the arcane dictates of the Sentencing Guidelines, which is based on severe punishment rather than deterrence.
In the Middle District of Florida the better Federal Judges are embracing the recent Supreme Court rulings permanently establishing, one presumes, that the Federal Guidelines are meant to be merely advisory. Yet even when these Judges would want to grant lighter sentences based on the personal characteristics of a Defendant, the Federal Guidelines make the process much more difficult because so much Federal charged misconduct calls for significant prison time.
Although what may be needed in Federal sentencing is a system that allows for greater discretion for Federal Judges while reducing the power of Federal prosecutors, the goal of fair sentencing could also be accomplished by diverting nonviolent and less significant cases from the Federal sentencing structure.
The best way to accomplish this goal would be to establish an effective Federal Pretrial Intervention Program. Those with minimal prior records, who are accused of nonviolent acts such as drug possession or sale would be given an opportunity to have their indictments dismissed upon completion of programs based on deterrence rather than punishment.
In the Tampa Bay, the Florida state court system, allows first time offenders charged in misdemeanors or third degree felonies to avoid a conviction. The reduction of cases allows prosecutors and judges to concentrate their time and resources on the most important cases. Yet Florida is going a step further by experimenting with a civil citation program for nonviolent criminal offenses.
Wouldn’t the Federal criminal system also benefit by eliminating the clutter thru a Pretrial Intervention Program for nonviolent, first time offenders while giving these defendants the benefit of a second chance without ruining their lives? In the mean time Clearwater criminal defense lawyers will do everything possible to find the best possible solution for first time, non violent offenders in the Middle District of Florida in Tampa.
It’s unknown to Clearwater criminal lawyers if in the future Florida police may consider using deputized alligators in the same manner as they now use police dogs; but forewarned Floridians should think twice about the possible consequences of fleeing and eluding police officers even if the alligators are not deputized.
Anytime there is a fleeing and eluding, there’s a danger of major traffic crashes posed by officers who fail to use reasonable discretion during high speed chases for nonviolent offenses that continue to endanger lives in Tampa Bay.
Yet in Florida, there are other dangers lurking in the wilds for anyone who eludes an arrest, as demonstrated last night when a man being pursued by police scampered out of his vehicle to flee on foot. So far so good.
But according to press reports the hapless man came upon an Alligator. The suspect was later found by law enforcement recovering in the hospital from alligator bites on his face and arm.
Although it’s true that in Florida an illegal arrest can be lawfully resisted as long as no force or violence is used, a Tampa Bay defense lawyer’s advice is to pull your vehicle over in a safe manner as soon as possible upon seeing that an officer is attempting to initiate a stop; then if you stay in the driver’s seat you’ll be much less likely to be bitten by a Florida alligator.
Clearwater criminal defense attorneys are often asked if a victim has the right to stop a criminal case from proceeding in the State of Florida.
Here’s a typical question I recently received from a man charged with Domestic Violence against his wife.
My wife signed a request not to prosecute two days after I was arrested by the Pinellas County Sheriff’s Department. Since my wife no longer wants to proceed against me on the domestic battery case, how can the state still prosecute me?
Neither of us was even injured. They arrested me because I admitted spitting on her during a heated argument before she called the police. My employer will not let me go back into work until this case is resolved without a conviction. What can I do to get these charges dropped?
The law in Florida forces officers on the scene of an established domestic violence case to make an arrest even if the victim does not want to prosecute.
But could mere spitting (Oops! Sorry, didn’t mean for that spray to hit you as I speak.) really be a criminal act? Any unwanted intentional touching of one person against the will of another person is a battery. Spitting is considered an unwanted touching. When the husband admitted that he spit on his wife, he gave the Tampa Bay investigating officers reason to believe that he’d committed a domestic violence battery.
Here the victim by signing a request not to prosecute has unambiguously demonstrated to prosecutors that she does not want to move forward with this prosecution. Yet the State of Florida presumes that Florida itself is also a victim in every criminal case. In a sense it must be because it is the State of Florida that pursues or fails to pursue every criminal case even those such as drug crimes which have no apparent victim.
Therefore law enforcement is not prohibited from prosecuting any Defendant just because the person who was harmed does not want to prosecute. However, a smart prosecutor who understands that he may have to prove the case at trial will take the request not to prosecute into consideration with other facts and circumstances of the case. An effective Tampa Bay Defense Lawyer will do everything possible to persuade prosecutors that this nonviolent act should be dismissed, because the shameful arrest itself has served as a sufficient punishment and deterrent.
Clearwater criminal defense lawyers are often asked about how to obtain the best possible results in federal drug cases in the Middle District of Florida in Tampa, Florida. In almost every Federal case but especially in Federal Drug cases such as Trafficking in Cocaine, Methamphetamine or Marijuana, the most important decision is the initial decision. Does a Defendant plead guilty or does he or she fight the charges by demanding a Federal trial with the very real possibility of being found guilty?
Either choice is difficult because the Federal Sentencing Guidelines requires that every Federal Drug Trafficking case yields a harsh minimum mandatory sentence as punishment. And more often than not Federal Prosecutors have more discretion to go under those minimum mandatory sentences than do Federal Judges.
And as many as 96% Federal Defendants plead guilty which is a stunning criminal justice failure in that they believe the Federal criminal process is rigged against them.
If you plead guilty and have no prior criminal history, then you may be eligible for the safety valve, which will allow your sentencing Judge to go under the minimum mandatory sentence in your case. But if you have any kind of prior record, even misdemeanors, then safety valve will not be available unless your attorney is able to overturn the Judgement and Sentence from the jurisdiction in which you were convicted before you are sentenced on the new Federal charges. Although some enlightened members of Congress are attempting to enlarge the safety valve provision to give Federal Judges more discretion, it’s unlikely that this will help on any pending cases.
If the safety valve provision of the Federal Sentencing Guidelines is not available, then the Judge can go under a minimum mandatory sentence if and only if the U.S. Attorney’s Office files a motion for substantial assistance, known as a 5k Motion before sentencing or a Rule 35 if filed within a year of the initial federal sentence. In the Middle District of Florida motions for substantial assistance are filed if and only if the level of co-operation is such that a new arrests are made or a defendant establishes that he or she is willing to testify against co-defendants.
All of these fact make pleading guilty to a Federal drug case a roll of the dice without the benefit of knowing with certainty what will happen. But if you do not plead quickly, then the only alternative is to fight the charges with a jury trial. You’ll want to find a Tampa Bay Federal defense attorney with excellent qualifications and experience in Federal trials who will provide you with the best possible defense.
Within his cell phone was a crucial piece of evidence against a robbery suspect – a photo of the very gun with stacks of the actual money from the bank robbery. The Trial Judge allowed the photo into evidence, the Defendant was convicted and sentenced to fifty years. At issue on appeal was this question: is a search warrant required for cell phone evidence.
The Florida Supreme Court just handed down an important decision on privacy rights that requires law enforcement officers to obtain a timely search warrant for cell phone evidence such as photographs. The case involved an armed robbery for which the Defendant was convicted and sentenced to fifty years.
The Court determined that it was permissible for Florida officers to obtain the phone itself as evidence, but that if officers want any material from the phone, then good cause must be shown. Further, the Court noted that modern cell phones contain a wealth of information which must be kept private to protect citizen’s rights. Here are excerpts from the case Smallwood v. Florida:
In our view, allowing law enforcement to search an arrestee’s cell phone without a warrant is akin to providing law enforcement with a key to assess the home of the arrestee…
We refuse to authorize government intrusion into the most private and personal details of an arrestee’s life without a search warrant simply because the cellular phone device which stores that information is small enough to be carried on one’s person.
The Court’s decision is correct in noting that allowing police access to cell phone information just because the cell phone is easily carried is absurd and that the wealth of information found there should be protected. Clearly law enforcement will still have the ability to gain access to cell phone records and to obtain search warrants for any incriminating information on any cell phone once a Judge is shown why officers believe incriminating evidence exists there.
Without this decision officers could check any cell phone incident to any crime purposefully looking for evidence of any other crime. For example, in a theft case officers would be free to happily look for pictures of drugs or other illegal activity.
Already our privacy rights are under siege. Federal Courts have found that emails over 180 days old do not require a search warrant because they are deemed abandoned. And Tampa Bay, Florida officers routinely invade homes without search warrants simply by stating that they smell marijuana.
Clearwater criminal defense lawyers hope other pending privacy cases involving cell phone evidence before other courts such as the United States Supreme Court will benefit from the analysis of this case by the Florida Supreme Court which properly balanced privacy rights with the need of law enforcement agents to gather evidence of crime.