Thursday, March 29, 2012


Our United States Supreme Court has granted certiari in Florida v. Harris, No. 11-817, a drug-sniffing dog case, which was featured in this blog in Can Drug Dogs Sniff For Warrantless Searches Outside Vehicles in Florida when the Florida Supreme Court made Aldo, our champion drug sniffer, an international Dog celebrity fawned, sprawled and pawed over at the best dog parks and fire hydrants around the world. 

Aldo the Florida drug sniffing dog whose reliability to find drugs is questioned by the Supreme Court
Aldo is a Dog whose fabulous stardom has hardly been diminished by his sad connection to drugs and the many unsavory characters whom he randomly sniffs, some of whom should be defended by your favorite Clearwater Criminal Defense Attorney

The holding of the Florida Supreme Court to be reviewed and possibly unleashed by the U.S Supreme Court could help a Clearwater Drug Defense Lawyer win Motions to Suppress improperly obtained evidence in Court:

We hold the fact that a drug-detection dog has been trained 
and certified to detect narcotics, standing alone, is not sufficient to demonstrate the reliability of the dog. To demonstrate that an officer has a reasonable basis for believing that an alert by a drug-detection dog is sufficiently reliable to provide probable cause to search, the State must present evidence of the dog's training and certification records, an explanation of the meaning of the particular training and certification, field performance records (including any unverified alerts), and evidence concerning the experience and training of the officer handling the dog, as well as any other objective evidence known to the officer about the dog's reliability. The trial court must then assess the reliability of the dog's alert as a basis for probable cause to search the vehicle based on a totality of the circumstances. Because in this case the totality of the circumstances does not support a probable cause determination, the trial court should have granted the motion to suppress. We remand for proceedings consistent with this
opinion. See also brief from the Florida Attorney Generals office in Harris v. State

Here's hoping that the dog biscuits a certain Pinellas Criminal Defense Attorney plans to send to the U.S. Supreme Court are enough to sway them toward affirming the Florida Supreme Court's decision.

Tuesday, March 27, 2012


The U.S. Supreme Court has opened a Pandora's Box for plea negotiations in Tampa Bay and Pinellas Courts in two new opinions, which for the first time allow defendants to appeal miscommunication of previous plea offers which were not accepted in a timely manner. The decisions make Court watchers such as your favorite Clearwater Criminal Defense Attorney speculate how far the Court will go in allowing plea agreements to be litigated in the future, but should make the plea process more open, formal and visible. This is needed because as the Court notes in passing, "ours has become a system of pleas, not a system of trials,"which indeed is a very dangerous thing according to the L.A. Times in A system of Plea Bargains.

The Court held in Frye: "[A]s a general rule, defense counsel has the duty to communicate formal offers from the prosecution to accept a plea on terms and conditions that may be favorable to the accused." When there has been a failure to do so, a prejudice standard will be applied. But showing actual prejudice in fact may prove difficult as Defendants will be required to prove the following three things: 
1."defendants must demonstrate a reasonable probability they would have accepted the earlier plea offer had they been afforded effective assistance of counsel"
2. "a reasonable probability the plea would have been entered without the prosecution canceling it," 
3. "the trial court refusing to accept it." 
If actual prejudice is established the remedy, is addressed in Lafler, can come in "at least one of two forms":
1. Resentencing where "the sole advantage a defendant would have received under the plea is a lesser sentence"; and where "resentencing alone willnot be full redress for the constitutional injury," 
2. the remedy "may be to require the prosecution to reoffer the plea proposal. 
3. Once this has occurred, the judge can then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or leave theconviction undisturbed."The Court's reasoning is important. "Because ours 'is for the most part a system of pleas, not a system of trials,' it is insufficient simply to point to the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process. 'To a large extent ... horse trading [between prosecutor and defense counsel] determines who goes to jail andfor how long. That is what plea bargaining is. It is not some adjunct tothe criminal justice system; it is the criminal justice system.'"
 In support of its argument that plea negotiation is now the critical point ina criminal proceeding, the Court cites a law review article that notes"[Defendants] who do take their case to trial and lose receive longer sentences than even Congress or the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes."
These decisions raise many issues for Pinellas Criminal Defense Lawyers that will have to be resolved in practice and litigation. Among other things, prosecutors may change their practice of making formal plea offers or may be required by Judges in Tampa Bay, Pinellas and Clearwater to make all plea offers on the record in open court for transparency. Further, priors records of Defendants based on plea agreements may be challenged based on the facts and circumstances of the plea. All great news for Clearwater Defense Lawyers.
Let the Buyer beware of Plea Bargains in Open Court in Pinellas County.
Pinellas Courtroom with a Connoisseur Plea Bargaining
Norman Rockwell, The Connoisseur,  1962

Friday, March 23, 2012


The recent Orlando death of an unarmed youth killed by a neighborhood watch gunman who seemingly stalked the child before shooting him dead has once again shown that Florida's Stand Your Ground law is a license to kill even if you're simply an unarmed Clearwater Criminal Defense Attorney. 

The absurdities of Florida's Stand Your Ground Law as it relates to many pending Tampa Bay and Pinellas Criminal Cases have already been noted in this blog in the post Stand Your Ground Is Your Perfect Defense to Murder as has not only the press in Florida, where the Orlando Sentinel has attempted to define what is legal and illegal for self defense under the Stand your ground law under the Florida law, as has the national news and here

Pinellas Police Seeking Evidence for Stand your Ground Defense
Pinellas Officers interrogate Defendant in Tampa Bay Florida Stand Your Ground Case
Berg, Hypnotic Seance, 1887
It's too easy for mistakes, then after the grisly consequences of the mistakes it's too difficult to adequately define the subjectively of the gunman. The Florida Stand Your Ground Law asks the prosecutors as well as law enforcement to look into the gunman's mind to determine if the gunman, "held a reasonable fear of imminent peril of death or great bodily harm to himself or others...." see Florida Statute 776.013. There's at least one Pinellas Criminal Defense Lawyer who is living in reasonable fear of imminent peril of death or great bodily harm because of the law. Florida's stand your ground law must be amended or repealed. 


776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

Sunday, March 18, 2012


The Florida Bar is seeking information on senior judges seeking service renewal. Senior judges are very experienced semi-retired judges who no longer want to work full time though some of them work longer hours than many of our regular judges. If your Judge is working too hard on your criminal case in Tampa Bay call your favorite Pinellas Criminal Defense Attorney.
Here is the notice which I received from the Florida Bar Association concerning judges in the Tampa Bay area which includes Pinellas County and Clearwater:
The following senior judges’ current service will expire on September 30, and they are seeking service renewal.
Any persons having knowledge bearing upon the fitness or qualifications of any of the senior judges on this list to continue service as a senior judge should send, on or before April 16, written comments to Thomas D. Hall, Clerk, Florida Supreme Court, 500 South Duval Street, Tallahassee 32399, or by email to, or by telephone to the chair of the appropriate review board as noted.
Review Board Two (Judge Darryl C. Casanueva, chair, (813) 272-3430): Horace A. Andrews, Robert E. Beach, Charles T. Carlton, James R. Case, Wayne L. Cobb, Stephen L. Dakan, Nancy K. Donnellan, Donald C. Evans, Crockett Farnell, Judith J. Flanders, Barbara C. Fleischer, Marion L. Fleming, Thomas M. Gallen, Frank A. Gomez, Oliver L. Green, Ronald A. Herring, Anne H. Kaylor, David L. Levy, Randall G. McDonald, Daniel R. Monaco, Cecelia M. Moore, J. Rogers Padgett, Raul C. Palomino, Jr., Richard G. Prince, Harry M. Rapkin, Thomas S. Reese, E. J. Salcines, Jack R. Schoonover, Radford W. Smith, Hugh E. Starnes, Ralph Steinberg, James R. Thompson, Wayne S. Timmerman, Ray E. Ulmer, Jr., and David Seth Walker.
Florida Supreme Court Justice (Chief Justice Charles T. Canady, chair, (850) 410-8092): James E. Alderman and Ben F. Overton.

Raphael, The Judgment of Solomon, 1518
Seeing some of these names brings back many great memories from trials, court hearings, motions and jury deliberations, while I served as a prosecutor and young defense counsel; if you need a seasoned Clearwater Criminal Defense Lawyer, I'm learning more every day.  I'm glad to see that some of my favorite Judges including Overton, Andrews, Beach, Case, Farnell, Fleischer, Fleming, Padgett, Smith, Ulmer and Walker are still going strong and want to continue. Though the foreclosure process seems to have tainted other senior judges in Florida. I hope they'll be given service renewal to ease the workload of other judges, speed up the criminal court system and mostly to keep them all out of trouble by keeping them on the bench.

Thursday, March 15, 2012


Defense counsel Peter Kenny had a great win in Orlando Federal Court, part of the Middle District of Florida including Tampa Bay and Pinellas when he successfully filed a Motion to Dismiss based on violation of speedy trial because of post indictment delay. If your case is moving like a turtle call your favorite Pinellas Criminal Defense Attorney.

Chang Si, painted in 1156
Back in 2007 the Government indicted the Defendant having a firearm in his possession when he sold a firearm to a Government Informant. Despite the indictment the Government never took the Defendant into custody by arresting him nor was the Defendant even informed about the existence of a Federal indictment against him while he served a term in Florida for an unrelated state matter. Only after the Defendant was released from state custody did the Federal Government follow thru by bringing him before a Federal Magistrate for his initial appearance. Because so much time had passed it would have been difficult for him to establish an appropriate defense to the charges, such as an alibi defense. Don't wait four years to call a Clearwater Federal Defense Attorney if you're under investigation.

About the Prosecuting Turtle below: 
Japanese depictions of turtles often depict a soft swath trailing them known as minogamewhich refers to the seaweed growth on their shells as they meditate like buddhas. How much minogame must the Prosecutors have on their fannies from their long four year wait to arrest a man after indicting him?

In Peter's Excellent Motion to Dismiss he argued that Barker v Wingo, 407 U.S. 514 (1972) was controlling and that the following factors must be considered:

1. length of delay - nearly four years, any time over one year between indictment and arrest is presumptively prejudicial
2. reason for the delay - here government negligence to move the case forward and even gained a tactical advantage because the Defendant no longer had possible witnesses available for his defense.
3. Defendant's assertion of his rights - he asserted his rights once he knew them and he had no way of knowing he'd been indicted until the Government placed a detainer on him.
4. prejudice suffered by the Defendant - even if he had an alibi how could he possibly remember where he was on a specific day four years ago?

Saturday, March 10, 2012


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

Wednesday, March 07, 2012


The Florida Supreme Court just decided that when there's a motion to suppress from the Defense concerning the validity of a traffic stop, the State must provide testimony from the actual officer who observed the stop. This is an important case for Defendants in Tampa Bay and Pinellas as the prosecution often tries to circumvent supplying testimony from the arresting officer to avoid a transcript which could be used to rebut erroneous testimony at trial. If you've been unlawfully stopped call a Clearwater Criminal Defense Attorney to look at your case.

The case involved Ms. Bowers who was charged with Possession of Drugs as well as DUI. At a hearing in her case the officer giving testimony had no first hand knowledge of the actual stop nor the reasons for the stop.  
The Supreme Court held in Michele v. Bowers that although it's appropriate for an officer to always use  information from another officer's investigation in solving crimes and other police work;  an officer can not testify to the eyewitness testimony that another officer not present at a trial or hearing would have given, because it is hearsay. 
Before this decision Florida Courts would allow evidence based on what was known as the Fellow Officer Rule - if one officer knows what the other officer observed thru police reports or conversation - then the evidence was admissible even for at a suppression hearing (a hearing conducted by a Clearwater Defense Lawyer in which the Defense attempts to establish that evidence should be suppressed due to officer error or legal requirements).
Here are the Briefs filed in the case from the State of Florida Attorney General and the Brief from the Defense  or listen to the oral arguments actually made before the Florida Supreme Court.

Now Officers will be have to spend more time in Pinellas Court and less time painting.
Honore' Daumier, The Painter, 1870

Sunday, March 04, 2012


Federal law requires banks to report any cash transaction over  $10,000. The purpose of the law is to facilitate law enforcement in uncovering possible illegal activity, such as money laundering, drug transactions or terrorism. 

Occasionally a family business may run up against the law when multiple cash transactions add up to an amount over the $10,000 limit or multiple bank accounts are kept within amounts just under the $10,000 criminal threshold. 

The practice of breaking large sums of money into smaller ones is known as money structuring and is considered a crime by the Federal Government. If you are under Government scrutiny for possible money structuring it's important to contact a Clearwater criminal defense attorney as soon as possible to help with your defense.
Money structuring was recently in the news when the Korean mother and small store owning parent of a State Supreme Court nominee was found to have violated the Bank Secrecy Act.  Needless to say the son will not be serving as a Judge, but at least his mother will not be going to prison which is a good result under the circumstances. 
Although this case did not occur in Florida, more Florida Federal cases in the Middle District of Florida including Tampa, Pinellas and Hillsborough are being investigated by the the Government especially with tax season approaching, if you need your case evaluated contact a Clearwater White Collar Criminal Defense Attorney. Here are some interesting facts about the money structuring case according to a recent news article:
The government’s case is rooted in the Bank Secrecy Act, a decades-old federal law intended to crack down on money laundering. The structuring violation can be pursued civilly or criminally, and criminal convictions can result in a hefty fine and a prison sentence of up to five years...most structuring cases are brought against people trying to evade paying taxes and that the government tends to prefer them over tax fraud cases because they are less complicated to litigate and often end up in settlements.

Don't launder those clothes if there's money in the pockets...
The laundry - Edouard Manet
Manet, The Laundry, 1875

Thursday, March 01, 2012


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