CAN NOSEY OFFICERS SMELLING MARIJUANA SEARCH YOUR HOME WITHOUT OBTAINING A SEARCH WARRANT

Your favorite Clearwater Criminal Defense Lawyer is often asked about the grim consequences of a nosey law enforcement officer who claims he smells marijuana as he stands at the door of your home. Can the officer conduct a search of your home without first obtaining a search warrant? And if drugs are found should the Court grant a Motion to Suppress?

Van Gogh's self portrait with pipe establishes that had he lived in Tampa Bay, Florida a search warrant would have been required to take his marijuana at his home and charge him with the crime of possession.
 Van Gogh, Pot Pipe, 1887

First, it’s important to note that at least one recent case, Kentucky v. King, from the United States Supreme Court makes a mockery of the fourth amendment protection of requiring a Search Warrant with an affidavit based on probable cause that describes with precision the place to be searched as well as what is expected to be found at that place and why it’s expected to be found there. 
In the case smell of marijuana combined with an officer’s belief based on noises heard at the home that evidence was likely being destroyed was enough to trigger the exigent circumstances exception.

Justice Ginsburg’s dissent noted:

“How ‘secure’ do our homes remain if police, armed with no warrant, can pound on doors at will and …forcibly enter?” Because the amendment’s “core requirement” is clear – officers must have probable cause with a search warrant before they break into a home.

Officers have been shown to haven many incentives to lie just to make an arrest. Unfortunately the Pinellas County Sheriff’s Department in Tampa Bay, Florida has recently been found to have lied even when trying to obtain information for search warrants and lied to gain entry into homes, so it’s even that much easier just to lie about smelling marijuana and hearing noises consistent with destruction of evidence to enter a home.
A recent Florida Case in the 2nd DCA, State vs. Roman, overturned a trial court which granted a Motion to Suppress evidence, but in that case that case there was much more evidence consistent with marijuana than just smell. 
A pending case, Florida vs, Jardines, now before the U.S. Supreme Court was appealed from a Florida Supreme Court case dealing with a drug dog alert based on a whiff of marijuana. The Florida Supreme Court in that case found that Officer’s acting on the marijuana smell was a substantial government intrusion of the sanctity of a Florida home.
Clearly, no law enforcement agency should be able to search a home based only on the smell of marijuana. 
So what do police do? They gather more evidence. Here’s an excerpt from an interesting source, Police Chief Magazine, advising Florida officers to focus on training and experience in drug detection in an article titled The Nose Knows:

The ability of an officer to explain and justify the accuracy of his perceptions is important when he or she relies on those perceptions to formulate probable cause. For instance, a Florida court held that a police officer had probable cause to search a vehicle after smelling burnt marijuana, in part because he had 20 years of experience and had smelled marijuana hundreds of times.

One wonders if that officer’s experience and training was advanced  by the smelling marijuana in his own home? And in many of these cases there is no burned marijuana smell at all. What about an officer’s actual ability to smell unburned marijuana as in many of the marijuana grow house cases?

TAMPA BAY POLICE SHOULD LEARN FROM BRITISH FORENSICS TEAM THAT SAVED BLIND LADY’S GOBSMACKED NOVEL OVER LUNCH

What was your last interaction with a police officer in Tampa Bay? Probably a speeding ticket. Possibly something worse. My last interaction went surprisingly well. I popped a contact lens directly onto the floor while going thru the electronic metal detector at the entrance of Court in Tampa. And to my surprise the officers would not let me leave until they’d found it. That’s exactly what we want from our officers – a little help, understanding and enthusiasm. 
If law enforcement officers want more than to be feared or loathed, they must do good things, not just spy on us then lie to us as the Pinellas County Sheriff’s Department’s Drug Squad has admitted doing nor by mindlessly handing out hefty driving tickets as the Florida Highway Patrol and Largo Police Department are well known for doing with ugly quota systems upon which the best honest, hard-working officers who refuse to give enough tickets are fired or demoted. What are PCSO Deputies, Florida Highway Patrol and Largo Police Officers doing to earn our respect? And at least one Clearwater Criminal Defense Attorney can tell you that not one of them has helped him find all his missing reading glasses  – oh, the shame of it!
Recently in England a team of forensic officers gave up lunches over five months to help a blind lady recover a written manuscript for a book. It was only when she asked her son to read the book, that she found she’d used a pen that had long since run out of ink, according to The Telegraph:

John Millais,The Blind Girl, 1856

 Miss Vickers said she was “gobsmacked” when Dorset police officers agreed to help by sacrificing their lunch hours over five months to study the indents made by her pen.

“I could remember the gist of what I had written but there was no way I could have written exactly the same way again,” she said. “I am so grateful. It was really nice of them and I want to thank them for helping me out.”
Miss Vickers, from Charmouth, near Lyme Regis, lost her sight seven years ago through diabetes and turned to her imagination for solace.
Here’s some advice from a Clearwater Criminal Defense Lawyer to the police and deputies in Pinellas – find people to help and help them – the gobsmacked look on their faces when they realize you’re not giving them a ticket will be more than enough to offset the loss of revenue and it will really brighten your day and theirs.

PINELLAS COUNTY DEPUTIES USED FAKE SUBPOENAS AFTER OBTAINING EVIDENCE IN CLEARWATER & PINELLAS DRUG CASES

New investigations of the Pinellas County Sheriff’s Office reveal that narcotics officers gained inappropriate access to private electric power bills from Progress Energy.  Later the Deputies used fake state attorney subpoenas to cover their tracks according to the Tampa Bay Times. The narcotics officers are also accused of telling lies to gain entry into homes, of giving false testimony under oath to obtain warrants and of using secret video feeds to spy on shoppers at a store in order to gain investigative information for marijuana grow house cases in Pinellas County, a part of Tampa Bay where your favorite Clearwater Criminal Defense Attorney warily lives a day to day existence.


Currently sixteen separate internal affairs investigations of the Pinellas County Sheriff’s Narcotics Division are moving forward with six new investigations  launched within the past week as the newly anointed Sheriff, only in office for a few months, heads into election. Is the Sheriff throwing the narcotics division “under the bus,” as his recent, now resigned, former head of the narcotics division believes. Or is the Sheriff somehow an innocent bystander just trying to clean up the mess?


 “You know what you are doing is wrong and you are covering yourself on the backside,” Sheriff Gualtieri said. “You don’t fully inform the state attorney and have them go through hoops to get information on something you already have.


Here is a Training Bulletin for Police from a Jacksonville Florida Law Enforcement agency which clearly balances the rights of citizens to have personal information protected against the need of Law Enforcement to conduct appropriate criminal investigations as does this bulletin from FDLE. Should PCSO need help I know a Clearwater Criminal Drug Attorney who’d happily talk to the Deputies about the need for a proper balance if they’ll promise not to frisk me first.


The only certain thing is that laws may have been broken. When a law enforcement officer falsely swears under oath or steals personal information, that officer should be prosecuted just like anyone else would be. A GRAND JURY should be convened to investigate possible criminal acts as well as any systemic corruption within the Pinellas Sheriff’s Office and the Pinellas State Attorney’s Office, which is somehow still moving forward with the marijuana grow house cases despite the lies and illegal activity. All of the cases involving these dishonest Deputies should be re-evalutated.
  

Pinellas Sheriff Discovers Fake Subpoenas even while bathing…
Jacques-Louis DavidThe Death of Marat, 1793

DEPUTIES LIE TO GAIN ENTRY INTO PINELLAS HOMES POSING AS UTILITY WORKERS

Deputies gained entry into Clearwater homes searching for marijuana without a warrant by donning the gear of utility workers according to the Tampa Bay Times. Apparently, it’s not unusual for Officers of the Law to lie to homeowners in an attempt to gain evidence of crimes in Pinellas, County Florida. If you’ve been falsely accused of a crime contact a Clearwater Criminal Law Attorney as soon as possible.


Think about it, our homes are our last refuge from the world. The one place in life where you’d hope to find rest, relaxation and peace. Yet rather than get a search warrant a Deputy lied to members of a Pinellas County family to clandestinely search for evidence of crime – marijuana plants in a home, which were not found.


“I was appalled by it,” Pinellas Conty Sheriff Gualtieri said Wednesday according to the Tampa Bay Times. “I think it’s wrong. It’s not what we should have been doing at all.” 


The Sheriff claims not to know what was going on. If he doesn’t know what his Deputies are doing he shouldn’t be the Sheriff. If he did know he and all of the Deputies who took part in this should be charged with crimes, including what you and I would be charged with, Burglary or Trespass or Identity Theft. It’s not the first time the Sheriff has had to apologize for his Deputies conduct. A few months ago this Blog noted that Sheriff’s undercover Deputies were giving false information to gain search warrants, using inappropriate video surveillance techniques and following shoppers at a horticultural store to look for evidence of pot growing all of which should not only offend your favorite Clearwater Drug Crime Attorney, but every citizen who understands that we must stand up for our freedom as Americans.


Maybe our Sheriff should read the Fourth Amendment to the U.S. constitution, as that shredded piece of paper up in Washington still has some value as an historic relic even if law enforcement ignores the rights enumerated within or the Sheriff could read the Florida Statute below which he swore to Defend, then read it out loud so that one or two of his Deputies may hear it. The statute protects Floridians from unreasonable seizures and searches as only upon a showing of probable cause to a Judge based on an affidavit and sworn testimony then and only then can the sanctity of a Floridian’s home be violated :


Florida Statute 933.04  Affidavits.–The right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches shall not be violated and no search warrant shall be issued except upon probable cause, supported by oath or affirmation particularly describing the place to be searched and the person and thing to be seized. (for the complete Florida Law on search warrants and their proper application by law enforcement see, Chapter 933 Search & Inspection Warrants)


Maybe the real problem here is that there is not enough real crime for these Deputies and for our head in the sands Sheriff to uncover. Maybe we need to slash the budget of the Sheriff’s Department to reflect the real needs of our community – protection from violent crime such as rape, armed robberies and burglaries – especially those not carried out by the Pinellas County Sheriff’s Department, also known as PCSO.

The Sheriff proudly wears his Utility Uniform.
Vincent van Gogh, At Eternity’s Gate, 1890

PINELLAS DEPUTY SUSPENDED FOR DESTROYING EVIDENCE — A FELONY IN FLORIDA

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?
Self Portrait - Boris Kustodiev
Boris Kustodiev, Self Portrait, 1905


SOMEWHERE ORWELL IS SMILING: SECRET VIDEOS MADE BY THE PINELLAS COUNTY SHERIFF’S OFFICE WERE USED IN SEARCH WARRANTS BASED ON WHERE PEOPLE SHOP IN LARGO FLORIDA

Imagine a dark Orwellian world where everything you do is on video and everything you do is closely examined in the hope it can be used as evidence against you in the future.

Well, if you live in Pinellas County, Florida you don’t have to imagine that world anymore, as your Pinellas County Sheriff’s Office secretly put hundreds of customers under video surveillance for over a year at a plant store called Simply Hydroponics. Law enforcement then used identifiers of the customers, such as the tags on their vehicles to track them, spy on them and to obtain search warrants which contained at best highly unlikely information.

This should make every American angry and even makes your favorite Clearwater Defense Lawyer despair for the future of our country.
In one case law enforcement officers placed a plant store customer’s home under surveillance then swore under oath in a search warrant that they could smell the marijuana plants and heard the distinct noise of foliage being broken from within what they designated as a suspected marijuana grow house. Our intrepid detectives found a single marijuana plant upon forcing their way into the home.
If there’s one thing all of us as Americans should be against it’s unbridled government surveillance and the destruction of our privacy rights. Yet we should also agree that the inherent corruption which resulted in officer’s telling lies under oath must also be rooted out.
The surveillance, the lies, the misinformation and the failure of law enforcement to abide by basic American standards of Justice should result in the immediate investigations of every law enforcement officer and every prosecutor involved as prosecutors routinely draft, prepare and take the search warrants to Judges for signatures. 
A Grand Jury should immediately be convened by the Florida Attorney General Pam Bondi to investigate he highest positions at the Sheriff’s Office and at the State Attorney’s Office, to find who was responsible for placing the video equipment near the store, to find what other stores or public areas are secretly under surveillance and to bring to justice all of those who did this or allowed this to be done under their watch.

Here are a few excerpts about smell as possible probable cause from the St. Petersburg Times Article: Young plants don’t emit an odor, but if a person were growing “hundreds” of mature plants in a structure that wasn’t properly sealed, it’s “possible” an officer very close to the home would notice the smell…James Woodford of Chattanooga, Tenn., an expert on the topic of marijuana odor, said a large operation vented directly outdoors could generate an occasional “whiff” of marijuana detectable up to 25 to 30 feet away [i.e., less than half the distance between the sidewalk and Underwood’s “alleged grow room”]….Law enforcement officers commonly use the smell of marijuana to establish probable cause.
Drug Crimes Trial Lawyer & Criminal Defense Attorney in Clearwater, FL
Times Editorial: America shouldn’t be a surveillance society
Video Surveillance – Are Hidden Cameras Legal?
933.07 Issuance of search warrants.
(1) The judge, upon examination of the application and proofs submitted, if satisfied that probable cause exists for the issuing of the search warrant, shall thereupon issue a search warrant signed by him or her with his or her name of office, to any sheriff and the sheriff’s deputies or any police officer or other person authorized by law to execute process, commanding the officer or person forthwith to search the property described in the warrant or the person named, for the property specified, and to bring the property and any person arrested in connection therewith before the judge or some other court having jurisdiction of the offense.

(2) Notwithstanding any other provisions of this chapter, the Department of Agriculture and Consumer Services, based on grounds specified in s. 933.02(4)(d), may obtain a search warrant authorized by this chapter for an area in size up to and including the full extent of the county in which the search warrant is issued. The judge issuing such search warrant shall conduct a court proceeding prior to the issuance of such search warrant upon reasonable notice and shall receive, hear, and determine any objections by property owners to the issuance of such search warrant. Such search warrant may be served by employees or authorized contractors of the Department of Agriculture and Consumer Services. Such search warrant may be made returnable at any time up to 6 months from the date of issuance.

933.04 Affidavits.The right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches shall not be violated and no search warrant shall be issued except upon probable cause, supported by oath or affirmation particularly describing the place to be searched and the person and thing to be seized.

From Orwell’s novel 1984, The three slogans of the Party on the Ministry of Truth Building. 

Your Government Gives You Justice Or At LEAST LOTS OF STATS — With Lies, Damn Lies & Statistics for Police Misconduct, Inappropriate Arrests & Misuse of Police Resources

The Bureau of Justice Statistics (Bureau of Justice Statistics (BJS) – Data Analysis Tools) has the legal tool you’ve been waiting for  – The Arrest Data Analysis ToolThis cite allows you, by choosing “Agency-Level Counts” to see the specific number of arrests made by each law enforcement agency in your jurisdiction, further itemized by year, type of crime, age bracket of the person arrested, gender, and race. Potentially this is useful in determining Police Misconduct, Inappropriate Arrests and Misuse of Police Resources. 


In the Tampa Bay Area including Clearwater and St. Petersburg the statistics show law enforcement is blindly and foolishly focused on arresting nonviolent crimes, including drug crimes, white collar crimes and fraud, rather than attempting to protect citizens from violent acts and immediate harm.


Here is the Methods Guide: Bureau of Justice Statistics (BJS) – Data Analysis Tools
Here is the User’s Guide: http://www.bjs.gov/arrests/resources/documents/adat_user_guide.pdf


This is useful information as long as the numbers given by each law enforcement agency are based on undiluted facts.


White Collar Crime Criminal Defense Attorney in Clearwater, FL
Violent Crimes Criminal Defense Attorney in Clearwater, FL



RESOURCES FOR SEXUAL BATTERY CASES IN THE TAMPA BAY AREA

Investigations After an Arrest for Sexual Battery in The Tampa Bay Area

It’s important to remember that typically (though not always) within 21 days of the arrest for any crime including sexual battery in the Tampa Bay area; the prosecutors at the State Attorney’s Office will make an important decision on whether to formally file charges against a potential Defendant. 
An effective strategically minded criminal defense attorney hired during those 21 days should do the following:
  1. Present important evidence to the State Attorney’s Office that establishes innocence.
  2. Provide information on new witnesses and establish possible problems with previous witnesses.
  3. Prepare evidentiary motions when law enforcement has failed to meet their constitutional duties.
  4. Protect the client from the prospect of prison, loss of community reputation and media hysteria.
The filing decision can be one of the most important events that will occur in the case. When contradictory evidence is immediately brought to the attention of prosecutors, showing them that they may lose at trial if they proceed, then and only then is it possible that charges may be dropped. Sex Crimes Criminal Defense Attorney in Clearwater, FL as well as Tampa, Hillsborough County and Pinellas County.
Sexual Battery or Rape Allegations at College Campuses in Tampa and Florida
The number of sexual battery allegations has risen dramatically on college campuses throughout Florida including the University of Tampa and the University of South Florida. Recent studies based on a survey of 6,129 college students enrolled at 32 educational institutions in the United States have shown shocking statisics including (see the University of Florida Police Department web page with more information including these important statistics at University of Florida Police Department ): 
  • One in eight college women report having been raped while 54% of women surveyed reported being the victim of some form sexual abuse;
  • 84% of those women knew their assailant prior to the attack; and
  • 57% of those rapes happened on a date.
Contact an experienced criminal defense attorney immediately after learning of an accusation of sexual battery by a college student from Tampa in HIllsborough County, Bartow in Polk County, New Port Richey or Dade City in Pasco County or St. Petersburg or Clearwater in Pinellas County, Florida.
Definitions in Florida’s Sexual Battery Statute as Found in the Florida Statutes (see
  • Sexual Battery – Florida law defines the term “sexual battery” to mean vaginal, oral, or anal union with or penetration by the sexual organ of another or the vaginal or anal penetration of another by any other object. If the touching was done for any bona fide medical purpose, then Florida law specifically excludes that conduct from the definition of sexual battery.
  • Victim of Sexual Battery – Florida law defines the term “victim” to mean any person who has been the object of a sexual offense such as sexual battery or aggravated sexual battery.
  • Sexual Battery Offender – Florida law defines the term “offender” to mean any person accused of a sexual offense in violation of a provision of this chapter such as sexual battery or aggravated sexual battery.
  • Consent – Florida law defines the term “consent” to mean any voluntary, knowing or intelligent consent. The definition of consent does not include any “coerced submission” that occurs because of the failure by the alleged victim to offer physical resistance against the offender.
Florida’s Penalties for Sexual Battery (Statutes & Constitution :View Statutes : Online Sunshine )
Florida law provides for certain punishments or penalties based on several factors including the age of the victim, the age of the offender, whether the offender used any actual physical force that was likely to cause any serious personal injury, and whether the offender used or threatened to use a deadly weapon.
The punishments for sexual battery range from a capital or punishable by life penalties to first, second, or third degree felony penalties. Under the Junny Rios-Martinez, Jr. Act of 1992, any person who is convicted of committing a sexual battery after October 1, 1992 is not eligible for basic gain-time under Florida Statute Section 944.275.
794.05 Unlawful sexual activity with certain minors.— (see Statutes & Constitution :View Statutes : Online Sunshine)

(1) A person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s.775.084. As used in this section, “sexual activity” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another; however, sexual activity does not include an act done for a bona fide medical purpose.
(2) The provisions of this section do not apply to a person 16 or 17 years of age who has had the disabilities of nonage removed under chapter 743.
(3) The victim’s prior sexual conduct is not a relevant issue in a prosecution under this section.
(4) If an offense under this section directly results in the victim giving birth to a child, paternity of that child shall be established as described in chapter 742. If it is determined that the offender is the father of the child, the offender must pay child support pursuant to the child support guidelines described in chapter 61.



Sexual Battery – Capital Felony under Florida Law

If the act of sexual battery is committed by an offender over the age of 17 against a person who is less than 12 years of age and the victim suffers from any personal injury to a sexual organ as a result, then the crime is punished as a capital felony under Florida law.
Sexual Battery – Punishable by Life Felony under Florida Law
  • If the act of sexual battery is committed by an offender who is 17 years old or under against a person who is less than 12 years of age and the victim suffers from any personal injury to a sexual organ as a result, then the crime is punished by life in Florida State Prison.
  • If the act of sexual battery is committed against a person who is 12 years of age or older without the person’s consent, and in the process of committing the act of sexual battery, the offender either uses actual physical force likely to cause serious personal injury or threatens to use or actually uses a deadly weapon, then the crime is punishable by life in Florida State Prison.
Sexual Battery – First Degree Felony (Statutes & Constitution :View Statutes : Online Sunshine)
It is a felony in the first degree, punishable by 30 years in Florida State Prison, if the act of sexual battery is committed upon the victim who is 12 years old or older without the alleged victim’s consent under the following circumstances:
Physically Helpless – When the victim is physically helpless to resist. Florida law defines the term “physically helpless” to mean being asleep , unconscious, or unable to communicate an unwillingness to participate in the act for any other reason.
Serious Personal Injury – When the offender coerces the victim to submit by using violence likely to cause serious personal injury on the victim or even threatening to use force when the victim reasonably believes that the offender has the present ability to execute the threat. Florida law defines the term serious personal injury to mean permanent disfigurement, permanent disability, great bodily pain or great bodily harm.
Retaliation – When the offender coerces the victim to submit by threatening to retaliate against the victim, or any third person, and the victim reasonably believes that the offender has the ability to execute the threat in the future. Under the Florida statutes for sexual battery or aggravated sexual battery, the term “retaliation” is defined to include any threats of kidnapping, false imprisonment, physical punishment, extortion or forcible confinement.
Mentally Incapacitated – When the offender, without the consent or prior knowledge of the victim, administers any intoxicating substance, anesthetic or narcotic which physically or mentally incapacitates the victim. Florida law defines the term “mentally incapacitated” to mean being temporarily incapable of controlling or appraising the victim’s own conduct due to the influence of an intoxicating substance, anesthetic, or narcotic administered without the victim’s consent or due to any other act committed upon the victim without consent.
Mentally Defective – When the victim is mentally defective and the offender has actual knowledge or this fact or has reason to believe the victim has a mental disease. Florida law defines “mentally defective” as any mental defect or disease which renders a alleged victim either permanently or temporarily incapable of appraising the nature of his or her conduct. An individual who is mentally defective under Florida law may not be able to consent to any sexual act which could constitute sexual battery or aggravated sexual battery.
Physically Incapacitated – When the victim is physically incapacitated. Florida law defines the term “physically incapacitated” as meaning any bodily impairment or handicap that substantially limited the alleged victim’s ability to flee or resist the act of sexual battery or aggravated sexual battery in such a way that negates any showing of consent.

Sexual Battery by Law Enforcement, Probation, or Correctional Officer- Florida Statute (4)(g)
It is a felony in the first degree, punishable by 30 years in Florida State Prison, if the act of sexual battery is committed upon the victim who is 12 years old or older without the alleged victim’s consent when the offender is in a position of authority or control. Additionally, the victim in such a case almost always has a civil rights claim or a personal injury claim against the agency that employed the offender. Occupations that are included within term position of control or authority include:
  • law enforcement officer;
  • correctional officer;
  • correctional probation officer;
  • officer who supervises controlled release, community control, detention, custodial settings, probation, or similar settings;
  • or anyone who leads the victim to reasonably believe that the offender is in a position of control or authority as an employee or agent of government.
Anyone who has been the victim of an act of sexual violence by a law enforcement officer, probation officer, correctional officer, or prison guard should discuss the case with an experienced civil rights attorney in the greater Tampa Bay area. The law enforcement agency that will investigate the claim may not gather all of the evidence against the person accused. Additionally, although victims are rarely prosecuted for bringing false claims, the victim of a sexual assault or battery by a law enforcement officer can be charged with providing false allegations in a specially created statute to protect law enforcement officers.
False Accusations of Sexual Battery under Florida Law 794.011(4)(g)
Florida Statute Section 984.011(10) provides any any person who falsely accuses any person listed in paragraph (4)(g) or other person in a position of control or authority as an agent or employee of government of violating paragraph (4)(g) is guilty of a felony of the third degree punishable by five years in Florida State Prison.
Surprisingly, such a criminal provision does not apply when the person falsely accused is not a law enforcement officer or other person in authority or control.
Sexual Battery – Second Degree Felony
A person who commits sexual battery upon a person 12 years of age or older, without that person’s consent, and in the process thereof does not use violence or physical force likely to cause serious personal injury commits a felony of the second degree which is punishable by 15 years in Florida State Prison. Florida law defines the term serious personal injury to mean great bodily harm, great bodily pain, permanent disability, or permanent disfigurement.
Sexual Battery – Custodial or Familial Position of Offender
If the person accused is in a custodial or familial position of authority over the victim, then the victim’s consent or willingness to engage in the sexual act is not a defense. In fact, Florida law provides that even acquiescence to a person reasonably believed by the victim to be in a position of authority or control does not constitute consent.
In other words, it is not a defense that the person accused was not actually in a position of control or authority if the circumstances were such as to lead the victim to reasonably believe that the person was in such a position.
Victim is 18 years old or older – If the person accused is in a custodial or familial position of authority over the victim who is less than 18 years of age, then the victims’ consent or willingness to commit the act is not a defense to prosecution. Under these circumstances, the crime is a third degree felony punishable by 5 years in Florida State Prison.
Victim is between 12 and 17 – If the person accused is in a custodial or familial position of authority over the victim who is between the age of 12 and 17 years old, then the victims’ consent or willingness to commit the act is not a defense to prosecution. Under these circumstances, the crime is a second degree felony punishable by 15 years in Florida State Prison.
Victim is under 12 years old – If the person accused is in a custodial or familial position of authority over the victim who is under the age of 12, then the victims’ consent or willingness to commit the act is not a defense to prosecution. Under these circumstances, the crime is a first degree felony punishable by 30 years in Florida State Prison. If any such sexual battery injures the sexual organ of the victim then the crime is punishable as a capital or life felony.

Note for Statutory Rape Crimes — Ignorance or belief as to victim’s age no defense.When, in this chapter, the criminality of conduct depends upon the victim’s being below a certain specified age, ignorance of the age is no defense. Neither shall misrepresentation of age by such person nor a bona fide belief that such person is over the specified age be a defense.



Related Links
Sex Crimes Criminal Defense Attorney in Clearwater, FL as well as Tampa, Hillsborough County, and Pinellas County.
Ignorance of the Victim’s age is no defense to Statutory Rape under the Florida Statutes, see: Statutes & Constitution :View Statutes : Online Sunshine 
The Rules of Evidence to be used in Sexual Battery cases may be found at the following link: Statutes & Constitution :View Statutes : Online Sunshine
Florida’s list of Qualifying Offenses for Sex Offender Registration Includes Sexual Battery – This information is found at the Florida Department of Law Enforcement. FDLE can be thought of as Florida’s FBI with crime labs, evidence resources, and it’s own law enforcement apparatus with a directive of solving crimes which transcend the jurisdiction or capabilities of local agencies such as the Hillsborough County Sheriff’s Office (HCSO, Tampa) or the Pinellas County Sheriff’s Office (PCSO, Clearwater, St. Petersburg). The FDLE information on sexual offenders & sexual predators, is presented under the Florida Sexual Predators Act under Florida Statute Section 775.21, and concerns the Registration of sexual offenders for sexual battery or aggravated sexual battery under the law of Florida.
Sexual Battery Information from the University of Florida Police – This web page is provided by the University of Florida Police Department and its Community Services Division and shows university students how they can lessen the chances of being a victim of sexual battery from perpetrators known or unknown.
University of Tampa’s Guidelines on Sexual Assault – Each university in the Tampa Bay area has written guidelines specifically to deal with allegations of sexual assault involving a college student or employee of the University. The guidelines for sexual assault include the following: survivor assistance guides, educational programs and counseling programs, a rape victim’s hotline, and the process for any campus disciplinary proceedings upon finalization of the investigation by the Tampa Police Department and the Hillsborough County Sheriff’s Office or FDLE.
University of South Florida (USF) Guidelines on Sexual Assault – These guidelines are for USF and include the Victims’ Advocacy Program which can assist University of South Florida students or employees who are victims of actual or threatened violence which may including the following crimes: assault, battery, sexual assault or sexual battery. The University of South Florida Police Department often investigate these allegations and report statistical information concerning rape allegations by students or employees of the University.