FLORIDA SUPREME COURT THROWS OUT ROBBER’S CELL PHONE PHOTOS OF GUN & CASH FROM THE ROBBERY

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.
Cell phone technology is like a key to your front door according to the Florida Supreme Court today.
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.

LAW ENFORCEMENT WILL FILL PILL BOTTLES WITH GPS TRACKING DEVICES TO CATCH DRUG ABUSERS

The Government’s escalating battle to stop the abuse of oxycodone now includes baiting bottles in pharmacies with GPS tracking systems. According to press reports the baited bottles will be handed out during pharmacy thefts and robberies in the hope of later tracking down the perpetrators.

Law enforcement is also asking industry researchers to explore the possibility of applying nanotechnology in such a way that individual ‘bait’ tablets could be tracked by GPS.

GPS Enhanced Pill Bottles

The idea is similar to the red dye explosives banks throw into bags of cash when robbed. The dye makes it that much easier to catch the robbers. Unfortunately it takes weeks for your favorite Clearwater Criminal Defense Attorney to rub off the red dye when making timely withdrawals, but never mind my legal problems.  
Couldn’t the banks use GPS as well? Well, they do. 
But they’re smart enough not to advertise the fact as it wouldn’t deter the robbery only force the robbers to remove the device. 
Clearly, growing technology is taking away more of our privacy rights. Yet folks who rob pharmacies and banks probably don’t have much room to complain. But for the rest of us imagine how are privacy rights will be diminished when the industry complies with law enforcement’s request to create a nano GPS system. And it’s important to know when electronic surveillance with GPS, video or audio is unlawful.

The Government has tried harsh mandatory minimum sentences for drug offenses which have not only failed to curtail addiction and abuse, but have ruined many more lives than the drugs. In Florida law enforcement officers charged with protecting the public have recently abused their public trust by using improper tactics including secret video surveillance, false search warrants and lying while attempting to gain unlawful entry into a dwelling.

FLORIDA POLICE CAUGHT GIVING CONFIDENTIAL PRIVATE LAW ENFORCEMENT INFORMATION

Years ago while your Clearwater Criminal Lawyer was a young sometimes productive Prosecuting Attorney in Florida one of the other lawyers bought a beautiful 911 Porsche, red as I remember. He boasted to someone at the office that the Porsche was more recent than it really was. 

Within a day xeroxed evidence materialized showing the Porsche was much older than he claimed. The information gracing every wall was from confidential law enforcement tag sources meant only for law enforcement purposes. For kicks someone added his NCIC criminal history which unhappily showed little of interest as well as his Florida Department of Motor Vehicles information establishing a litany of speeding tickets.

Former Prosecutor’s Porsche 911
For fun in those long begone days we prosecutors often had mock prosecutions of each other when not faced with real trials taking turns in various roles. I was often chosen as Counsel for the Defense, but not for him. The evidence on the walls was deemed trustworthy. At trial in one of our offices, doors locked to prying supervisors, we convicted him of being not only a liar, but of something somehow worse and unspoken, of being less than a gentleman. To this day when I see him defending in Court, I cringe in disgust.
Yet after all these years could it be that my judgment was misplaced? Clearly, one of the lawyers in that State Attorney’s Office took it upon himself to commit a felony just to put the Porsche Man down. 
My thoughts turned to that long ago incident after seeing today’s press reports concerning a Clearwater Police Department Officer who appears to have gained confidential car tag information for a friend going thru a divorce. If the information was delivered without being part of a law enforcement investigation, then there’s no excuse for the failure to respect another citizen’s privacy rights.
Yet, I can’t help but think that it’s some of my former colleagues, those same Prosecutors who may have taken that Porsche tag information so long ago, who are weighing whether to charge the Clearwater officer with a felony. I wonder if they remember. If so, they don’t need a Clearwater Criminal Defense Attorney to tell them that the statute of limitations has passed and at least they’re safe from prosecution.

COURTS IN DISARRAY ON CELL PHONE PRIVACY AS NEW DOCUMENTS SHOW LARGE INCREASE IN GOVERNMENT ELECTRONIC SURVEILLANCE OF AMERICANS

If someone is suspected of a DUI should the officer be allowed to search the person’s cell phone for pornography without a warrant? If someone is suspected of grand theft should an officer be allowed to use the cell phone to help determine where the person may have been at the time of the crime? Should cell phone conversations be considered private? Is carrying a cell phone the same as carrying a briefcase? American Courts disagree even as Clearwater Criminal Defense Attorneys urge Courts to find that Americans have a reasonable expectation of privacy rights in their cell phone use.


Recent press reports note that Courts across America are greatly divided as to whether search warrants are necessary for law enforcement to use the vast amount of personal cell phone information as well as internet use and email. Not only are American Courts divided, but more troubling is the fact that even the rationals of the various Courts in making privacy rights decisions in criminal cases are inconsistent. 

Yet as the ACLU chart below indicates an ever larger number of Americans are being subjected to phone taps, traps and traces. 

The government is using more phone taps traps and traces on Americans without getting search warrants.
Increase in Phone Taps, Traps & Traces

The failure of our Courts to agree on an overall reasonable privacy right requiring search warrants for personal cell phone information would seem to necessitate a review of privacy rights by the Supreme Court. Yet except for a recent Florida GPS case in which the Supreme Court demanded that Florida law enforcement stop using GPS to track the movement of Florida citizens, the Court has turned a blind eye to the most important privacy rights issues of this generation.

In a few days Congress will begin debates over amendments to the 1986 Electronics Communications Act, your favorite Clearwater Criminal Lawyer urges you to demand that your Congressman vote to repeal the provisions of the law which could be interpreted by any American Court as allowing warrantless searches of private information from private cell phone, internet and email use.

FLORIDA IS USING & ABUSING ARMORED ELECTRONIC SURVEILLANCE VEHICLES TO SPY ON ITS CITIZENS

Clearwater Criminal Attorneys have attacked the proliferation of surveillance cameras in Tampa Bay only to find that the den of crime known as St. Petersburg Florida recently launched its own fancy Armored Surveillance Van with multiple video cameras aimed against it’s citizens, presumably to quell their hidden criminal impulses and to enjoy a bit of eavesdropping. One wonders how this might be necessary when recent FDLE crime statistics proclaim that violent crime in Florida and in the Tampa Bay area is down.

The Luncheon on the Grass - New Surveillance Van in St. Petersburg Florida will diminish privacy rights in Tampa Bay Florida
Van’s View: St. Petersburg Mayor & Police Chief 

The Chief of Police for the St. Petersburg Police Department and the mayor of St. Petersburg want to place the vehicle in ‘high crime areas’ where it will record everything that happens twenty-four hours a day. Somehow that doesn’t seem fair. Shouldn’t we first protect our esteemed leaders? 

Since our city elders are more concerned with possible crime than protecting the privacy rights of their citizens perhaps the van should first be parked in front of their yards as a beautiful and beneficial upgrade to their neighborhoods using facial recognition software to properly detail that their lives are not criminal. And as they drive to work why not let the surveillance vehicle follow them shrouding them in the warm glow of its protective video cocoon while recording their every activity so that we can all enjoy the Big Brother benefits that comes from taking away the privacy rights of others.

FEDS VIEW PRIVATE EMAILS OVER 180 DAYS OLD AS ‘ABANDONED’ ALLOWING POLICE SEARCHES WITHOUT ANY JUDICIAL OVERVIEW

Most things have changed for the better since the Pony Express delivered fast mail, but at least back in the day the mail delivery system was safe from the prying eyes of the Government if not from an occasional robbery. Clearwater Criminal Defense Attorneys are concerned to find that under antiquated Federal laws our email and internet privacy rights are not protected from Government inspection and intrusion. 

we've come along way since the pony express stamp, but our emails are no longer private in Tampa Bay, Florida
Pony Express Stamp, 1860

Under the Electronic Communications Privacy Act of 1986 emails older than 180 days are not protected from Government intrusion because the email is considered abandoned. Once emails are considered abandoned any law enforcement agency can gain access to personal emails with a mere subpoena. 
There is no requirement for law enforcement agencies to obtain search warrants for any emails over 180 days old stored on an internet server nor stored in the cloud. Therefore there’s no Judicial oversight over investigators who may abuse their subpoena power with impunity.

In 2011, The New York Times ran “1986 Privacy Law Is Outrun by the Web,” noting:
Last year, for example, the Justice Department argued in court that cellphone users had given up the expectation of privacy about their location by voluntarily giving that information to carriers. In April, it argued in a federal court in Colorado that it ought to have access to some e-mails without a search warrant. And federal law enforcement officials, citing technology advances, plan to ask for new regulations that would smooth their ability to perform legal wiretaps of various Internet communications.

In Tampa Bay, Florida local police agencies such as the Pinellas County Sheriff’s Department have trampled on our privacy rights by using secret surveillance cameras, Deputies posing as utility workers to falsely gain entry into homes and obtaining evidence then faking subpoenas. Can Tampa Bay law enforcement agencies be trusted to make fair investigative decisions without any Judicial oversight?

Clearwater Criminal Defense Lawyers and every concerned citizen should demand that the Electronic Communications Privacy Act of 1986 be amended to protect not only emails but internet use and cell phone use from inappropriate Government searches conducted without a Search Warrant.

HOW SHIRTLESS FBI INVESTIGATIONS ARE INITIATED IN TAMPA BAY FLORIDA TO DESTROY GENERALS’ CAREERS

Many years ago when I was a Prosecutor in Florida, I received an unusual call from a local Judge who had an excellent reputation. The Judge said he was the victim of a crime. He didn’t want it to be public. He asked if I would draw up an arrest warrant based on his statement and submit it to another Judge. 
I understood that even those who are a direct part of the Florida Criminal Justice System often don’t have a full grasp of the role others have within the system.
What I told him was this – every victim of a crime must first go thru the police, they’ll investigate, then a prosecutor will be randomly assigned to your case, otherwise the entire prosecution will be tainted because it began in a questionable manner. 

as David killed goliath so a shirtless FBI agent in Tampa has killed the careers of two of America's best Generals by not respecting privacy rights
Caravaggio, David  or Shirtless FBI. 1609

I thought of that Judge’s call during the recent email scandal enveloping the CIA and the American Military. The scandal began as all good scandals should, right here in Tampa Bay, Florida. But when a local ‘civilian liaison’ to the Air Force base complained to a friend in the FBI (a friend on good enough terms with her to have emailed shirtless pictures of himself to her) about possibly harassing emails the FBI agent seems to have forgotten how the Criminal Justice System in America should work.
Clearwater Criminal Attorneys familiar with how the FBI typical operates in the Middle District of Florida are surprised that a Federal investigation could be initiated as press reports have described. 
Here is what he should have told his friend about how the criminal justice system works not unlike what I said to that Judge so many years ago:

1. He could not be objective. Because he had some kind of friendly relationship with the victim his involvement should have ended immediately upon telling her with whom and how to make a proper complaint.

2.  Although using the internet for harassment by sending threatening messages may constitute a federal crime, the FBI rarely if ever initiates investigations for such low level crime, but would file the charge incident to other larger offenses such as Conspiracy to Traffic in Cocaine or Complex Scheme to Defraud involving millions of dollars. 

What seems to have happened is that an FBI agent forgot about the need to be objective, instead launching a bulldog Electronic Surveillance for a friend, without considering the loss of privacy that investigation could cause to others. His failures in good judgment have done more to destroy American defenses than any actual spy network, something which should cause real concern within the Government. 
Clearwater Criminal Lawyers urge agents at the FBI to remember that investigations and security concerns must always be balanced with our constitutional rights to privacy.

OUR RIGHT TO BE ANONYMOUS: NEW CRIMINAL LAWS TO STOP THE USE OF FACIAL RECOGNITION SOFTWARE

Your Clearwater Criminal Defense Attorney dealt with facial recognition in a recent jury trial in Federal Court in the Middle District of Florida. In that quiet Tampa courtroom someone other than my client was identified thru facial recognition software as matching the perpetrator. 
The Government’s main law enforcement witness disavowed facial recognition as he would any evidence inconsistent with guilt, testifying under oath in federal court that he “knew nothing about facial recognition,” I’d have had no quibble with his sworn statement had he simply stopped speaking after the word nothing, but his knowledge of facial recognition was established in his written reports indicating something of a slavish devotion to the infallibility of the software. 

the right to be anonymous facial recognition is condemned by robert hambrick, clearwater defense lawyer in largo, tampa & st. petersburg
Did Vermeer use Facial Recognition?

One of the shames of the American Criminal Justice System is that it’s neither unusual nor unexpected for law enforcement officers to conjure up vivid new memories for jurors. But moving on from perjury, one wonders how prevalent is facial recognition and what does it mean for our privacy rights as Americans?

Under fire from European regulators concerned about privacy rights Facebook today suspended its facial recognition software in Europe. Facebook has millions of photographs of individuals and Facebook’s software can burrow deep thru the photos in search of identification markers. The software can also be used for photos taken from videos. Americans should demand that facial recognition be limited by criminal laws with punishments if private companies fail in safeguarding our privacy rights.
Privacy is evaporating as eavesdropping by electronic surveillance becomes a way of life in America and Europe.
All of us are subject to having our photos taken in public places and private places sometimes with our knowledge and approval and sometimes without our knowledge or with our disapproval such as videos taken from inappropriate police surveillance of stores and thanks to the Mayor of Tampa even secret surveillance videos while walking in Tampa. Criminal laws that apply to electronic surveillance should be modified to prohibit use of facial recognition.
While avoiding Tampa your Clearwater Criminal Lawyer  will search for a right not enumerated in the constitution, yet distinctly American – the right to remain anonymous, even as I type. 

WHEN IS EAVESDROPPING BY ELECTRONIC SURVEILLANCE VIA VIDEO, AUDIO OR DATA A CRIME?

National Electronic Surveillance regulations of audio or video can be found in the Wiretap Act which requires that a Judge make a formal finding of probable cause that a crime has or is about to be committed before the Government may listen in on your conversations with your favorite Clearwater Criminal Defense Lawyer.  
Because the federal standards were enacted with a view to restrict Government eavesdropping into telephonic conversations long before the internet, cell phones and large scale use of video surveillance, state governments have taken up the slack with State Electronic Surveillance laws. Yet even the better written state laws such as Florida’s which strives to lean toward privacy have many exceptions.
Electronic surveillance has been broadened by many states to cover other ‘data communications’ as follows:

video surveillance balances privacy rights with security needs in Tampa Florida
Hidden yet there, Camera Obscura 

Electronic surveillance involves the traditional laws on wiretapping, which can be defined as any interception of a telephone transmission by accessing the telephone signal itself–and eavesdropping–listening in on conversations without the consent of the parties.  States have extended these laws to cover data communications as well as telephone surveillance….In Florida, interception and disclosure of wire, oral, or electronic communications is prohibited. State and federal policymakers face the challenge of balancing security needs via electronic surveillance against individual privacy. 


The delicate balancing of privacy rights with security needs is something each state has had to grapple with in determining criminal standards. Here is the criminal law in Florida as it relates to use and abuse of electronic communications:

934.03Interception and disclosure of wire, oral, or electronic communications prohibited.(1) Except as otherwise specifically provided in this chapter, any person who:(a) Intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, oral, or electronic communication;(b) Intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when:1. Such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or2. Such device transmits communications by radio or interferes with the transmission of such communication;(c) Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;(d) Intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; or(e) Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication intercepted by means authorized. 

Florida law sets the standard for the rest of the nation in protecting privacy rights over intrusion. Yet despite the law in Florida Clearwater Criminal Attorneys find that Tampa Courts have held that where there is no expectation of privacy such as in a store, there is no privacy. Everything you do at the store is on video from the moment you park, enter and slug the manager for turning off the blue light special just as you reach for it.

TAMPA SHOULD PULL DOWN THE SURVEILLANCE CAMERAS & MOVE THEM INTO THE MAYOR’S OFFICE TO KEEP HIM HONEST

During the Republican Convention the beleaguered city of Tampa was blanketed with over sixty cameras to watch the rioters, radicals and anarchist whom the city was certain were planning our destruction, but the mischief makers never materialized. Fear not, as long as the humidity is above eighty percent our city will remain safe from saboteurs. Instead of the massive arrests the city prepared for, alas only two protestors were thrown into jail and even those two arrests seemed two too many for your favorite Clearwater Criminal Defense Lawyer who once thought Americans were born with the right to protest.

Vermeer, Camera Obscura Proof?

But what to do with the all those fancy video cameras? Our right to privacy demands that Tampa take the Government video cameras down. The Government should not be conducting video surveillance on its citizens without probable cause of wrongdoing. This is especially true in Tampa Bay because of prior law enforcement overzealous surveillance in Florida in which citizens shopping at a store were later subjected to unlawful searches with Deputies gaining entry into homes by posing as utility workers and Deputies using fake subpoenas.
Here’s an excerpt from today’s editorial from the Tampa Bay Times that balances the right of privacy versus the need for public safety exactly right:

 Law-abiding residents in public spaces should not be subject to around-the-clock surveillance by their local government… While (the Mayor of Tampa) is open to moving some cameras out of downtown and into high-crime areas, the mayor argued the devices are “valuable tools” in fostering the sense of security that would make downtown a more attractive place to visit and do business. People have grown accustomed to cameras, he said, and shutting them off would be a “colossal waste.”…
The city has an obligation, especially after fanning the fears of convention-related violence, to balance public safety with civil liberties. Walking downtown or visiting Curtis Hixon Park is not consent for a digital search…fight these government eyes in the sky.

Since the Mayor of Tampa is keen to keep these cameras, why not place all sixty cameras in the Mayor’s office where citizens can watch him babbling about every day. The ‘valuable tools’ will keep him honest knowing we’re watching while protecting him too. If you believe your rights are being violated by law enforcement or even by the Honorable Mayor of Tampa call a Clearwater Criminal Defense Attorney.