William H. “Billy” Murphy, Jr., spoke about how an ineffective "War on Drugs" disproportionally impacts people of color in low income neighborhoods. Prohibition does not work. Incarcerating non-violent drug offenders costs the taxpayers dearly but does nothing to stop the flow of drugs into our communities.
His speech also provided great insight into his philosophy as a criminal defense attorney fighting for the rights of his clients.
If you watched HBO's hit series "The Wire" you know about Billy Murphy's cameo performance as State Senator R. Clayton "Clay" Davis' criminal defense attorney. As far as criminal defense attorneys go, he is about as "rock star" as it gets.
He also stars in a great video on "10 Rules for Dealing with the Police." The Constitution of the United States of America provides you with valuable rights against unreasonable searches and seizures. Few citizens understand how to assert these rights. Even if you are neither poor nor disenfranchised you should understand how to assert your constitutional rights.
The video gives an easy to understand explanation on how to assert your rights. The most important point made by the video is that even people who are completely innocent of any criminal wrongdoing are best served by understanding and asserting their rights against unreasonable police conduct.
You can order the full-length DVD at http://flexyourrights.org/10_Rules for $15.00.
The video provides a pretty objective lesson on how to assert your right to remain silent and your right to speak with an attorney before submitting to any questioning or interrogation. "I'm going to remain silent. I want to see a lawyer." You can assert these rights even if the officer has not read you Miranda warnings.
He also discusses ending any consensual encounter with police by asking, "Excuse me officer, I'm I being detained or am I free to leave?"
Billy Murphy also explains why you can refuse to consent to a search of your vehicle, clothing, or home by simply saying, "I don't consent to searches."
Find out what to do when the police knock on your door. Commonly called the "knock and talk" the police are there for one reason - to gain entry into your home to conduct a search. A search that may only be legal if you agree to invite them across the threshold. So never invite a police officer into your home. Instead, if you wish to talk to the officer then step outside to talk to the officer and shut the door behind you.
Watch Part III - 10 Rules for Dealing with the Police
Watch Part IV
Injunctions for Protection Against Domestic or Repeat Violence under Florida LawThe petition for an injunction for protection against domestic violence or repeat violence in Hillsborough County, FL, asks for a description about the following types of incidents:
- injuries from physical abuse;
- mental abuse;
- threats of violence;
- battery or aggravated battery;
- assault or aggravated assault;
- false imprisonment;
- stalking, or
The consequences of having an injunction entered against you can be serious. Seek out the services of an attorney to find out the best way to respond.
Attorney for Injunctions for Protection in Tampa, FLIf you were served with a petition for an injunction for protection against domestic violence or repeat violence, then contact an experienced attorney in Tampa, FL. We represent clients throughout the Tampa Bay area on these types of injunctions in Hillsborough County, Pinellas County and Pasco County, FL.
Call 813-250-0500 today.
A Judge Will Review the Petition without Talking to the Other Side
The judge assigned to the case will review the petition that day. If the judge finds that the allegations are sufficient, then the judge will issue a Temporary Injunction against domestic or repeat violence that will be valid for 15 days unless further continued by the Court.
A Florida law enforcement officer must attempt to serve a copy to the respondent (person accused of violence) before the hearing.
The petitioner will be warned that the time between the time that the injunction paperwork is served in the respondent and the time of the hearing is the most dangerous time for the petitioner and the petitioner's children.
Show the Court that You are Not a Threat - Do Not Violate the Injunction
In many of these cases involving an individual who is truly committing acts of domestic violence the "loss of control" that follows finding out about the injunction can lead to more violent acts.
The fact that the respondent follows the letter and spirit of the order prior to the hearing is also an indication that the respondent is able to conform his or her behavior to the law.
Remember to follow the letter and spirit of the court's order because failing to do so may result in an injunction being issued (even if the facts used to support the petition were originally false or exaggerated).
Additionally, violating the injunction prior to the hearing could result in the court ordering you to take domestic violence classes or undergo a psychological evaluation.
The Return Hearing - Your Chance to Be Heard
After the temporary injunction is granted, a Return Hearing is held before a judge within 15 days of the Temporary Injunction. Both parties have the right to appear. The petitioner must appear or the injunction may be dismissed. The petitioner will be required to speak directly to the judge about why the petitioner fears for his or her safety.
The respondent also has the chance to address the court. However, if the respondent has criminal charges pending, the respondent should speak with a criminal defense attorney before making any statements. Anything the respondent says about the facts of the case can be used against the respondent during the criminal case.
Often, the attorney for the respondent can help plan the strategy for the hearing on the injunction for protection.
Presenting Relevant Evidence for the Court's Consideration
In many cases, the court will allow the Respondent's attorney (the attorney for the person served with the injunction) more time to prepare. In order to issue subpoenas, order 911 records or obtain other evidence that will contract false or exaggerated allegations a continuance is often necessary.
At the return hearing, either the petitioner or the respondent can present photos, witnesses, and recorded messages to be used as evidence. Witnesses can subpoena police officers who have relevant information about prior difficulties between the parties or accusations made by the petitioner.
Contact an experienced attorney at the Sammis Law Firm to discuss any petition for injunction against domestic violence or repeat violence filed against you in Dade City or New Port Richey in Pasco County, Tampa or Plant City, Hillsborough County, Clearwater or St. Petersburg in Pinellas County.
Call 813-250-0500 today.
Domestic Violence Injunctions, Restraining Orders and Protective Orders in Pasco and Hillsborough County, FL
If you have just been served with a Temporary Order and Petition for Protective Order from Domestic Violence or Repeat Violence in the Tampa Bay area, including Tampa in Hillsborough County, Clearwater or St. Petersburg, in Pinellas County, or Dade City or New Port Richey in Pasco County, Florida, you probably have a lot of questions.
- First, read the paperwork carefully.
- Second, be sure to follow the letter and spirit of the order by not contacting the petitioner either directly or indirectly. No contact means no contact of any kind, even through a third party.
- Finally, educate yourself about your rights and how this process works before your return hearing on the petition.
Injunctions for Protection - A Serious Remedy
A protective order against domestic violence or repeat violence is a drastic remedy that should be reserved for only the most serious cases. The consequences for the petitioner and the entire family can often be devastating and last a lifetime. An attorney can take action to protect your rights to make sure that the final result is just and fair for all individuals involved.
Often the accusations made by the petitioner are false or exaggerated. Read more about protecting your rights during a hearing on domestic violence or repeat violence injunction hearing.
Avoid a Hearing by Ambush
In many ways, the hearing on the petition for protection from domestic violence or repeat violence is an emergency hearing. Often the hearing is schedule less than two weeks after the petitioner files for the temporary protective order.
By the time the respondent is served with paperwork, the respondent may have less than a week to prepare. Often finding an attorney within that time period is nearly impossible. Many describe the process as "hearing by ambush."
Protect Your Rights to a Fair Hearing and a Just Result
For attorneys that represent respondents at hearings on the petition for protection, several important procedural rights apply that make the hearing much more fair.
First the respondent can request a continuance to have additional time to prepare for the hearing in order to do the following:
- Subpoena the Petitioner to provide sworn testify during a deposition in which the Respondent's attorney can ask questions to find out more about whether the allegations are false or exaggerated;
- Order a transcript of that testimony which can be typed up and used to impeach the petitioner if the petitioner later offers testimony that is different from the testimony presented at the deposition;
- Order a copy of 911 calls related to the alleged incident;
- Order records related to previous calls for emergency services at the house;
- Order a copy of any previous petitioner for injunction filed by the petitioner against any other individual;
- Subpoena other witnesses including law enforcement officers to testify during a deposition or at a hearing on the petition for an injunction or protective order (often called a restraining order).
A federal agent such as DEA, FBI, or the United States Marshals Service are sometimes involved in a case that is ultimately prosecuted in state court.
For example, the United States Marshals Service might come to someone's home in Tampa, Hillsborough County, Florida, to execute an extradition warrant for a felony case out of state.
The United States Marshals Service also has several local law enforcement officers present for the raid. During the raid, the Deputy uncover evidence leading to the arrest of the person for a state criminal law violation such as possession of a firearm by a convicted felon, possession of a controlled substance, drug trafficking or another type of felony criminal charge.
How do you subpoena the deputy with the US Marshals Service to come to state court for a deposition, hearing or trial?
Consider another example. Imagine a case in which the FBI comes to talk to one person in the house or execute an arrest or search warrant. During the investigation, the FBI agents and local law enforcement officers talk to other people in the house to gain consent to search another bedroom. If the search reveals any contraband, individuals in the house may be arrested for state criminal charges.
When the DEA is involved in a drug bust, they often turn over possibly "illegal searches" to the local law enforcement officers. Many questionable cases are not prosecuted at the federal level. In other cases, the DEA may decide not to prosecute lower-level drug busts or trafficking cases involving only marijuana.
When those charges are not prosecuted at the federal level - a distinct problem occurs for the criminal defense attorney defending the case in State Court here in Florida - it is nearly impossible to get the federal agent to show up for the subpoena for deposition or to respond to the subpoena duces tecum.
The federal agents do not want to testify in the state case. In fact, they go to a lot of trouble to keep their name out of any police report. The local prosecutor with the State Attorney's Office for cases in Tampa and the surrounding areas in Florida, will often not list the federal agents as witnesses even through they were in charge of the entire operation - at least until the federal agent realized that the case would be prosecuted by the state and not the federal government.
In these cases, the criminal defense attorney can still subpoena every federal agent involved in the case for a deposition. Why? The federal agent is often a witness to each element of the charge.
The federal agents often minimize their role in the investigation. The federal agent is often a witness to an illegal search and seizure. If the federal agent remembers anything, it might contradict the local law enforcement officers' version of events. Federal agents like to avoid showing up for a deposition because they are able to avoid giving a deposition in federal criminal cases.
In short, those federal agents might help the criminal defense attorney win the case. And the fact that they work so hard to obstruct the process often works to the defense attorney's advantage in resolving the case or getting the charges dropped.
As soon as you serve the subpoena on the federal agent with the DEA, FBI or a US Marshal, the General Counsel's Office for the United States Department of Justice will send out a form letter that provides:
This office has received your subpoena for testimony and documents issued to a [Deputy with the United States Marshals Service] in the above-captioned state criminal case. Please be advised that there is a general prohibition against furnishing documents and/or testimony in proceedings in which the United States is not a party. See Title 28 C.F.R. Section 16.22.Ways to Deal with this Problem:
Accordingly, before the [United States Marshals Service (USMS) / FBI / DEA ] can make a final decision whether to authorize the federal agent to testify or provide any documents, you must provide a summary of the testimony sought and its relevance to the proceedings. See Title 28 C.F.R. Section 16.22(c). Such regulations were upheld as lawful and valid in United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). See also, Moore v. Armour Pharmaceutical Co., 927 F.2d 1194, 1197 (11th Cir. 1991).
Please understand that it is neither the desire, nor intent of the Government to interfere with or otherwise frustrate your efforts to secure evidence in this case. However, the [USMS / FBI / DEA] will not authorize any disclosure until you have complied with the statutory regulations.
In order to comply, you must provide a summary of the information sought and its relevance to the proceedings to the United States Attorney's Office for the Middle District of Florida (USAO). Upon receipt of the summary. the USAO, with this office, will then determine whether authorization for disclosure of the documents is appropriate. 28 C.F.R. Section 16. 24.
Please provide this information to us as soon as practicable so that we have sufficient time to determine whether to authorize the federal agent's testimony.
I'm always interested in ways that other attorneys deal with this problem. In order to eliminate the objections, I always provide the United States Attorney's Office a letter that gives a brief summary of why the agent's testimony is relevant.
On [date] the federal agent [name and business address] was involved in a search and seizure of [the description of person and property] at [address]. The federal agent was in a position to have witnessed whether the following facts occurred: [then list word for word the information listed in each police report]. See attached police reports and other discovery provided by the prosecutor in the state criminal case.You can also provide a Touchy request if you want to avoid any further delay to head off the next set of objections that will be raised by the United States Attorney's Office. The United States Attorney's Office will often take the following position:
Please be advised that in seeking records or testimony of a Department of Justice employee in any case (state or federal) in which the United States is not a party, you must comply with the Touhy regulations pertaining to the Department of Justice. This regulation may be found at 28 C.F.R. Section 16.21 et seq. Pursuant to 28 U.S.C. Section 16.22(a), no employee of the Department of Justice shall produce any documents or testify without prior approval of the proper Department official.The United States Attorney's Office will take the position that any subpoena duces tecum must contain the following:
Please be advised that the Circuit Court lacks jurisdiction to compel a federal employee to testify regarding matters relating to their official capacity. As it relates to these matters, the United States has not waived its sovereign immunity and subjected itself or its agencies to proceedings in state court. Sovereign immunity bars enforcement of a subpoena against an unwilling sovereign.
If the state court judge does issue a contempt order or you file a motion for sanctions or to compel, the Supremacy Clause allows me to remove that order or motion to Federal Court pursuant to Title 28, United States Code, Section 1442(a)(1) and 1446.
The subpoena power of the State of Florida yields to pre-eminent Federal regulations promulgated pursuant to Federal law. See United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951); St. of La. v. Gsell, U.S. Probation Officer, 978 F.2d 226 (5th Cir. 1992); U.S. Constitution, Article VI, Clause 2. A federal employee cannot be compelled to testify or produce documents in violation of provisions of the Touhy regulations. See, e.g. Touhy, 340 U.S. at 467-70.
If you need assistance in requesting or formulating the Touhy request, please do not hesitate to contact me. If you have a Touhy request already prepared and it meets the requirements of 28 C.F.R. Section 16.21 et. seq., please mail or fax it to me at the above address or number and I will review it and get back to you as soon as possible.
- Identify the employee or record sought;
- Describe the relevance of the desired testimony or records to your proceeding and provide a copy of the pleadings underlying your request;
- Identify the parties to your proceeding and any known relationships they have to the Department's mission or programs;
- Show that the desired testimony or records are not reasonably available from any other source;
- Show that no record could be provided and used in lieu of employee testimony;
- Provide the substance of the testimony expected of the employee; and
- Explain why you believe your Touhy Request complies with Sec. 2.88. (Your explanation can simply state that you do not expect the testimony to concern any electronic surveillance, policies or procedures, confidential informants, et).
After this second letter, the United State Attorney's Office for the Middle District of Florida might file a motion to quash and argue that the criminal defense attorney has not complied with the maze of federal regulations on the issue. However, by providing a summary, the police reports and other discovery, a correct reading of the law cannot support such a position.
After jumping through all of these hoops the federal agent will eventually show up for the depositions in most cases. Often the plea negotiations become much more favorable in the days leading up to the motion to quash hearing or right before the deposition takes place.
In other cases, the plea negotiations become much more favorable right after the deposition. I guess it is possible that the federal agent could help the prosecutor's case, although the criminal defense attorney is usually in a position to make an educated guess about that possibility well before filing the subpoena.
In many of these case, the federal agent is in possession of exculpatory or potentially exculpatory evidence that does not come to light until the deposition or an inspection of documents gathered on the federal end of the investigation which are never given to the local law enforcement officers.
Jason and Leslie Sammis are both attorneys on the NORML legal committee which fights for the reform of marijuana laws throughout the country.
Click on the links below to read about our recent case results.
In many of these cases, the officers get a tip from another person (who is busted for their own drug offense) about a possible marijuana grow house operation.
The officers will not have enough evidence for a warrant based solely on the tip. Instead, the officers go to the house for the purpose of conducting a "voluntary" interview.
The Hillsborough County Sheriff's Office (HCSO) calls these cases "knock and talk" investigations because the police knock on the door and then try to talk with the person who answers the door.
The police ask to come into the house (even though this request is merely voluntary), and then if they smell or see marijuana (or other contraband) they can arrest the person who answered the door.
During the course of the arrest, they can search the residence for other people. In the process of that search, the officer might find evidence of a marijuana grow house operation. In many of these cases, only after discovering that evidence will the officers attempt to get a search warrant.
These cultivation of marijuana or grow house cases in the Tampa Bay area often hinge on the following types of issues which require a careful examination of each and every fact in the case:
- What was the tip or other facts leading to the "knock and talk"?
- Was the house gated thereby communicating to the officers that they did not have consent to knock on the front door?
- Once the officers knocked on the front door, did they gain access to the house based on actual consent to enter the home?
- Was the consent to enter the house really "free and voluntary" or did the officers do something to coerce the consent?
- Was the consent withdrawn at any point?
- Did the officers exceed the scope of the consent?
- Did the officers have any basis to search the house after gaining entry?
- Did the officers read Miranda prior to interrogation?
- Did the officers promise the suspect leniency in exchange for the statements?
The HCSO just announced a press release on May 5, 2010, dealing with a similar case:
The Hillsborough County Sheriff’s Office received a tip about a suspected cannabis grow operation located at 7806 Cortez Avenue in Tampa, Florida. Hillsborough County Sheriff's officers were dispatched to the residence based on the tip. During the investigation, the officers reported finding two rooms inside a house that were being used for the purpose of cultivating marijuana.
The officers reported finding nine large cannabis plants in various flowering stages inside the home. The officers also reported finding marijuana grow lights, ballasts, fans, and a secondary air conditioning unit.
Upon further investigation, deputies reported an illegal connection to a Tampa Electric meter box that was allowing electricity into the home that was not registering on the meter.
Law enforcement officers with the Hillsborough County Sheriff's Office reported seizing nine large cannabis plants totaling more than sixty pounds with an estimated street value of $240,000.00. The suspect was then taken into custody.
The suspect was charged under Florida law in Tampa, Hillsborough County with trafficking in marijuana, manufacture / cultivation of marijuana, theft of electricity, possession for purpose of selling or trafficking cannabis.
Contact a Marijuana Defense Attorney at the Sammis Law Firm to discuss any "knock and talk" case involving marijuana charges by calling 813-250-0500.
We represent clients in cases involving the cultivation of cannabis or marijuana grow house cases throughout the Tampa Bay area including Hillsborough County, Bartow in Polk County, Clearwater or St. Petersburg in Pinellas County, New Port Richey or Dade City in Pasco County, Bushnell in Sumter County, Brooksville in Hernando County, Bradenton in Manatee County, or Sarasota County, FL.
Read more about our case results in marijuana grow house cases in the Tampa Bay area:
- Tampa Attorneys Argue Motion to Suppress in Cultivation of Marijuana Case - Read the case results.
- Lawyers Argue Motions in Possession with Intent to Sell Case - Read the case results.
- Tampa Attorneys Argue Motions in Cultivation of Cannabis Case - Read the case results.
- Tampa Attorneys Use Entrapment Defense in Pasco County Sell of Marijuana Case - Read the case results.
Watch the YouTube Video from the Hillsborough County Sheriff's Office on Operation Indoor Outlaws Part 1. Shows law enforcement officers executing a search warrant at a large grow house operation. Discussion by Supervisor at Tampa Electric Company's Revenue Protection Department which does investigations into stolen electric services on how grow house operations and homes with marijuana cultivations can be spotted.
If you want to invoke Miranda, the new ruling requires you to tell the officers that you want to invoke your rights. In order words, to invoke your right to remain silent you must break your silence and speak. Otherwise, the police can continue to interrogate you.
The new decision on Miranda will certainly change the tactics the police use when they interrogate a suspect who has neither explicitly invoked nor explicitly waived the Miranda rights.
In Berghuis v. Thompkins, the United States Supreme Court ruled 5-4 that a suspect has to speak the "magic words" in order to actually assert the right to remain silent. In that case, Van Chester Thompkins was given his Miranda warnings. For the most part, he then remained silent for nearly three hours. During those three houses, various officers continued to ask him questions and tricked him into breaking his silence.
How did they get him to talk? One of the law enforcement officers asked him whether he believed in and prayed to God. Then the officer asked him whether he asked God for forgiveness for “shooting that boy down.” Thompkins replied, “Yes.” The other evidence in the case must have been less than overwhelming because another jury had acquitted his alleged accomplice at a trial that had taken place prior to Thompkins being picked up on the warrant.
That evidence alone may have been responsible for first degree "guilty" verdict. Also, the fact that he sat there for three hours refusing to answer questions certainly didn't help his case. Had he invoked his right to remain silent, the verdict may have been different because what happened during those three hours and the words he eventually spoke couldn't have been used against him.
It remains me of "the quiet game" we played as kids. Once someone says "quiet" everyone has to stop speaking and the first person to speak loses the game by saying something. Eventually, everyone loses that game.
The Miranda warnings provide a short cut to winning the game. When you say, "I invoke my right to remain silent until after I speak with an attorney" - the game is over. As long as you continue to remain silent, nothing that you do to invoke your rights can ever be used against you.
Why should you invoke your right to remain silent? From the perspective of a criminal defense attorney, it is fail-safe way to make sure that nothing you say can ever be used against you at trial. Do you really want an officer to tell the jury about your gesture, shrug or nod? Do you want the officer to be the sole witness who can use your statement to gain probable cause to arrest you or issue a warrant to search your home or property? Do you want the officer to be able to twist your words or misinterpret something you say?
The best part about invoking your right to remain silent is that the fact you invoked your rights can never be used against you. The fact that you tell the officer - "I want to remain silent. I will not speak to you about anything until after I talk with an attorney." Then you must actually remain silent. Better yet, remain silent and still.
Once you invoke your Miranda rights to remain silent and your right to counsel, the fact that you used those magic words can never be used against you. The jury can never be told that you invoked your right to remain silent or asked to speak to an attorney. The fact that you invoked your Miranda rights cannot be used to establish probable cause for your arrest, or as grounds to obtain a search warrant.
Even if the officers make you sit there silently for hours, the fact that you sat there and refused to speak cannot be used against you. If the officers continue to question you, continue to remain silent. If you must say something, say it again "I am invoking my right to remain silent until after I speak with an attorney."
Many people instinctively think that they can talk their way out of anything. Sometimes it works and sometimes it doesn't. But when you are facing criminal charges - anything from DUI to shoplifting to domestic violence to more serious felony offenses - just say the magic words and then remain silent and still.
Then talk to your criminal defense attorney before you talk to anyone about the facts of the case.
If you were arrested for DUI by an officer with the Pasco County Sheriff's Office then contact an experienced criminal defense attorney at Sammis Law Firm. We are focused on DUI defense including cases involving a breath, blood or urine test or a refusal to take the test. Call us for a free consultation to discuss your case.
After a DUI arrest it is important to contact an attorney with the first 10 days after the arrest so that you can demand a FORMAL review hearing to contest the administrative suspension of your driver's license. We can help you obtain a 42 day driving permit so you can get to work while we fight the suspension to get it removed from your driving record.
Pasco County STEP Officers
STEP uses six deputies supervised by a sergeant to actively enforce aggressive driving, drunk driving and other traffic laws in Pasco County. STEP also takes advantage of the traffic statistician, the Motor Unit and Patrol Operation, and the Strategic Traffic Accident Reduction Tactics (known as START) to determine the best use of additional law enforcement officers near high crash intersections.
The Special Traffic Enforcement Patrol (STEP) Unit is the night time traffic enforcement group focused on locating and apprehending drivers impaired by alcohol or drugs. The officers on the STEP Unit responds to complaints from the Customer Service Unit about traffic violations to check on in their districts.
The officers on the STEP Unit have specialized training to conduct field sobriety exercises. Although the STEP Unit is primarily a patrol unit, the STEP Unit officers also setting up perimeters and conducting searches.
Several members of the unit have completed the training to become Drug Recognition Experts (DRE). As part of the Traffic Enforcement Section at the Pasco County Sheriff’s Office, the unit also conducts saturation patrols and DUI checkpoints throughout Pasco County.
The Pasco County DUI Enforcement Mobile Unit
Watch the YouTube video on the Pasco County DUI Enforcement Mobile Unit used for DUI saturation patrols in New Port Richey on U.S. 19. The mobile unit is also used when the Sheriff's Office conducts DUI sobriety checkpoints or roadblocks in Pasco County. This video was filmed on late Saturday night, March 20, 2010.
Watch the video to learn insights from the officer's with the Pasco County Sheriff's Office STEP Unit for DUI Enforcement. See the inside of the DUI Mobile Unit used in roadblock or checkpoint cases. Hear a breath test technician give instructions to a suspect on how to blow into the Intoxilyzer 8000 machine.
Visit our main website for more information about fighting Pasco County DUI cases after an arrest in New Port Richey or Dade City.
Answer: Not much.
Watch the video link at the bottom of this post yourself and see if Mr. Davis received any preferential treatment.
The video shows a Gulfport Police Officer following Mr. Davis' vehicle heading north out of downtown (the bar district) at 1:42 a.m. The tape shows several classic "clues" of impairment such as driving too slow (10 mph in a 30 mph zone) weaving within the lane, crossing the center lane, driving erratically, etc.
During the traffic stop (and what would normally be a DUI investigation), Mr. Davis opens his door before the officer has even gotten to the vehicle. We all know not to attempt to exit the vehicle until the officer instructs us to do so if for no other reason then because we do not want to alarm the officer. Exiting the vehicle too soon is also a classic indication of impairment.
The best part of the video is when Mr. Davis starts "walking the line" before even being asked to perform any field sobriety exercises. It looks like he takes several steps before the officer indicates that he only wants to check his eyes and that additional sobriety testing might not be necessary.
Sure enough, Mr. Davis is sent on his way without a ticket for any of the numerous traffic infractions documented by the officer. Predictably, the Gulfport Police Department found no wrongdoing on the officer's part. Watch the video yourself and be the judge about the thoroughness of this DUI investigation.
Click here to find out more about a typical DUI Investigation in Pinellas County.
Motion to Suppress Cutivation or Manufacture of Marijuana for Tampa, Hillsborough County - Felony Case Results
Click on the "I Agree" button below to read more about a recent motion to suppress hearing on March 31, 2010, before the Honorable Denise A. Pomponio, Circuit Court Judge for Hillsborough County, Florida, involving charges of manufacture of cannabis, possession of cannabis, possession of a controlled substance, and possession of drug paraphernalia.
Disclaimer: The Florida Bar does not review or approve case results for any criminal defense lawyer's websites. If you would like to see the results we have obtained in the past and statements regarding the quality our work, you must read the disclaimer and request the additional information by clicking on the "I agree" button:
- Past successes do not guarantee future results.
- The facts and circumstances of your case may differ from the cases discussed in our recent case results.
- Not all results are provided.
- The results discussed are not necessarily representative of the results obtained in all cases because each case is different and must be evaluated and handled on its own merit.
I do not agree.
All Charges Dismissed after Attorneys Win Motion to Suppress Hearing - Client Avoids Two Felony Charges and Two Misdemeanor Charges
Result: On March 31, 2010, the Honorable Denise A. Pomponio, Circuit Court Judge for Tampa, Hillsborough County, FL, heard from two law enforcement officers during a hearing on our motion to suppress and then granted our clients motion to suppress evidence, which included 16 marijuana plants, Soma (a prescription medication which is a controlled substance), marijuana seeds, drug paraphernalia, ballasts, light system, and other marijuana hydroponic equipment.
Because the motion suppressed all evidence in the case, on March 31, 2010, Judge Pomponio then granted our motion to dismiss all charges including Count I for manufacture of cannabis, Count II for possession of cannabis (less than 20 grams), Count III for possession of a controlled substance, and Count IV for possession of drug paraphernalia.
Arguments we made leading to the dismissal of all charges:
1. A patrol officer with the Hillsborough County Sheriff’s Office with one month of experience as a “Narcotics Investigator with the Special Investigations Division” was in charge of an undercover operation to investigate citizens suspected of growing marijuana in their homes.
2. Less than one month before this investigation the patrol officer was rotated onto the "Indoor Marijuana Grow House Task Force." Patrol officers were put on the task for so that they could gain experience in finding and investigating indoor grow house operations. The task force started on February 23, 2009, and ended around December 12, 2009.
3. In furtherance of this sting operation, the Hillsborough County patrol deputy, would set up surveillance of the citizens at a local “hydroponic” and gardening store called “Worm’s Way” located at 4412 North 56th Street, Tampa, FL 33610-7120 during the week of August 9th, 2009. Many officers with the task force have described finding individuals that are growing marijuana in their home as easy as "fishing out of a barrel." The task force also targeted other hydroponic stores in Tampa and Hillsborough County, including Grace's Hydro-Organic Garden Center, Florida Hydroponics, and Causeway Hydroponics Supply, Hydroponics of Tampa, and the Garden Source Tampa - Hydroponics.
4. The Hillsborough County patrol officers would spy on customers as they parked their car and entered the store. The officers would write down the customer’s tag number and then find out the name of the individual that owned the vehicle. The officers would also find out whether the owner of the vehicle also owned a home. The officers would then, in some instances, obtain electricity records from Tampa Electric Company - TECO (without a warrant). For some reason, the officers would not use any surveillance equipment.
5. It was the standard procedure of the HSCO patrol officer, who had one month of experience as a “Narcotics Investigator with the Special Investigations Division” to investigate the leads he uncovered concerning our client, a man with no criminal record who lived in Hillsborough County, FL. The HSCO patrol officer's work consisted of running the tag to find out where the owner of the vehicle lived, and contacting TECO to determine whether the electric bills at that residence appeared to be higher than normal. In the search warrant, the patrol officer said that our client's utility bills for the past four months were twice as high as the surrounding homes with the same square footage, although at the motion hearing we argued that the patrol officer had no way to articulate how he made that calculation and he has since destroyed any notes that would have shown his calculations.
6. Based on those observations, the patrol officer on the Indoor Marijuana Grow House Task Force obtained permission from the Hillsborough County Sheriff’s Office to go to the home of our client for the purpose of conducted a “Knock and Talk” without a warrant with the intention of gaining access to search the residence on August 17, 2009.
7. Two armed deputies, including the patrol officer then made their way to the residence, knocked on the door, and gained access into our client's home. At the motion hearing, the patrol officer testified that after he knocked on the door he asked permission to enter and our client "verbally agreed." A detective also testified but said that he was the one that asked for permission and that our client only indicated that they could enter by his body language when he moved to the side so that the officers could enter the home. Needless to say, the facts gathered from these two officers during the depositions were valuable in showing all of the inconsistencies in their testimony.
8. We argued that the entry into the residence was without free and voluntary consent under the circumstances. In fact, according to the detective that testified no verbal consent was given. We argued that the officers simply used their apparent authority, badges and guns to make their way inside the residence after our client opened the door and after a brief interrogation.
9. After entering the residence the officers allegedly saw in plain view a small amount of marijuana in a clear plastic container sitting on a table inside the residence.
10. After seizing the container and realizing that it contained a small amount of marijuana, our motion alleges that the patrol officer on the task force began a warrantless search of the entire property, including looking on our client's computer, in his bedroom, and through his papers and other property. According to our motion, the search lasted for several hours before the officers made any attempt to secure a warrant. In fact, the officers did testify that they did not have any consent after entering the property to perform any search in the residence or surrounding property.
11. We argued that the lack of consent did not stop the officers with the Hillsborough County Sheriff's Office from searching the entire house and an apartment next to the main house that had an entrance that could only be accessed from the outside of the house. In fact, the patrol officer looked in windows, and went up an outside staircase to look into the upstairs windows before discovering “the upstairs windows were covered with a plastic tarp and a set of double French doors were sealed with foam…heard a distinct humming noise coming from the windows and door of the attached secondary structure…indicative of ballasts, air conditioning units, lighting systems, and/or fans.”
12. Our motion alleged that based on this illegal warrantless search, the patrol officer on Hillsborough County's Indoor Marijuana Grow House Task Force, used this illegally obtained information to secure a search warrant without advising the Court of the illegality and questionable tactics used.
13. Our motion to suppress alleged that after obtaining the search warrant the officers then “officially” began another search and seized items from the residence and the connected two story apartment next to the main house.
14. In the motion to suppress, we ask the Court to suppress any statements attributed to our client by the deputies and officers, including but not limited, any statements regarding knowledge or ownership of the marijuana, cannabis plants, grow house equipment, paraphernalia, any controlled substance, and misdemeanor amounts of marijuana allegedly seized from the residence and surrounding property.
Our motion to suppress made the following legal arguments based on the evidence:
1. The deputies in this matter illegally entered and searched the residence and property without a warrant and without consent in violation of the Fourth Amendment of the United States Constitution. In addition, the open-view and/or exigent circumstances exception do not apply to the facts of this case.
2. Any alleged consent to search subsequent to the prior illegal search is tainted and not free and voluntary.
2.a. Evidence gained during an illegal search of a home before the officer's obtained a search warrant could not be relied upon to support the federal warrant. See, e.g., Murray v. United States, 487 U.S. 533, 536 (1988) (officers who illegally entered warehouse and observed bags of marijuana could not rely on their knowledge of the marijuana in support of application for warrant). Neither can an officer put false, misleading, or unsupported facts in a affidavit to obtain a warrant. See Franks v. Delaware, 438 U.S. 154 (1978) (intentionally false statement or omission regarding material fact requires suppression of evidence).
3. The initial entry to the home was illegal because any alleged “consent” to enter his home obtained from the defendant, to the extent that voluntary consent is claimed by the prosecutor for the State Attorney's Office in Tampa, Hillsborough County, or by the deputies was involuntary and coerced.
4. Furthermore, any inspection of the backyard or adjacent property was illegal because it is well established under Florida law that an uninvited and warrantless search of a side-yard area or a back-yard area violates the Fourth Amendment and subjects any evidence gathered from such a search to exclusion. State v. Morsman, 394 So.2d 409 (Fla. 1981) (seizure of marijuana plants in defendant’s backyard was illegal when plants were not visible to the public and police officer had no right to be in backyard); Maggard v. State, 736 So.2d 763 (Fla. 2d DCA 1999); Glass v. State, 736 So.2d 788 (Fla. 2d DCA 1999) (marijuana plants suppressed where officers had no right to enter backyard even when they saw people in the backyard).
5. Generally, people have an increased reasonable expectation of privacy in the backyard of their homes. Moorsman, supra.
6. In this case, the evidence is clear that the defendant had a reasonable expectation of privacy in his home, backyard, and the two story structure attached to his home. It is also clear that the deputies violated this expectation of privacy and the defendant’s Fourth Amendment rights by entering the back yard, and going up a outside staircase, without a warrant and without consent.
7. In addition, the deputies were not justified to conduct a warrantless search of the adjacent property based on the open-view exception. State v. Rickard, 420 So.2d 303 (Fla. 1982); Oliver v. State, 989 So.2d 16 (Fla. 2d DCA 2008).
8. In an “open view” situation, the police may not seize contraband observed from an adjacent lot without a warrant where the defendant has exhibited an actual expectation of privacy and there are no exigent circumstances. State v. Rickard, 420 So.2d 303, 307 (Fla. 1982).
9. An open-view situation is treated similarly to the “plain-view” exception except that “some exigent circumstances [are] required to justify warrantless entry into the protected area in an ‘open-view’ situation.” Oliver v. State, 989 So.2d 16, 17 (Fla. 2d DCA 2008).
10. Initially, the evidence above establishes that there is no way that the deputy could have made any observations that were consistent with a grow house operation through anything he saw in an “open view.”
11. Having established that the entry and subsequent search of the interior of the main house and the exterior upstairs portion of the upstairs was illegal, any subsequent searches, seizures and statements allegedly obtained through “consent” are tainted and therefore not free and voluntary.
12. “When the initial police activity is illegal, the State must establish by ‘clear and convincing’ evidence that there has been an unequivocal break in the chain of illegality sufficient to dissipate the taint of prior illegal police action and thus render consent freely and voluntarily given.” Maggard, supra, citing, Jordan v. State, 707 So.2d 338 (Fla. 2d DCA 1998); see also United States v. Quintana, 594 F.Supp.2d 1291 (M.D.Fla. 2009).
13. In this case, there is no evidence of an unequivocal break in the chain of illegality sufficient to dissipate the taint of the prior illegal entry and search. If anything, there is simply evidence of more illegality by the police officers through threats and coercion. As such, any alleged consent to search the resident, and any evidence seized from or statements obtained, are tainted and subject to exclusion.
14. On its own, the alleged consent in this case was not voluntarily and freely given. “Consent may not be coerced, ‘by explicit or implicit means, by implied threat or covert force.’” United States v. Quintana, 594 F.Supp.2d 1291, 1303 (M.D.Fla. 2009), quoting Schneckloth v. Bustamonte, 412 U.S. 218, 228 (1973).
15. In the instant case, our client did not sign any form that authorized the alleged “consent” to search the home or property.
16. It is undisputed by the officers that our client immediately requested the right to remain silent and not answer any questions without his attorney being present. As such, any statements obtained from our client must be suppressed because they were taken in violation of his Miranda warnings.
After the hearing on our motion, the Assistant State Attorney did not make any legal argument in support of the legality of the search. The Court found that based on the facts presented the allegations in the search warrant were false, based on illegally obtained evidence, or unsupported to the extend that the entire warrant and all evidence gained from it had to be suppressed.
After granting our motion to suppress, the prosecutor acknowledged that the motion was dispositive (which means that the prosecutor had no evidence to support any of the charges). Therefore, the trial court also granted our motion to dismiss.
Manufacture of Cultivation of Cannabis under Florida Statute Section F.S. 893.13(1)(a) is a third-degree felony punishable by five years in Florida State Prison. If more than 25 plants are found in the home, the prosecutor could charge the offense as a second-degree felony punishable by 15 years in Florida State Prison.
In many of these cases, it come down to fighting to suppress the evidence because of any mistake made by any law enforcement officer. Your criminal defense attorney for the cultivation of marijuana case must take the deposition of each officer involved in the initial investigation that lead to the search warrant, investigate any steps taken thereafter to execute the search warrant, and examine every aspect of the arrest and interrogation of the person suspected of manufacture or cultivation of cannabis in Florida.
After the depositions, your Tampa criminal defense lawyer for the cultivation of marijuana case must file and litigate the motion to suppress the evidence because of an illegal search or seizure, and any motion to dismiss for insufficient evidence.
If you have been arrested for a serious drug offense such as manufacture of cannabis, possession of marijuana, possession with intent to sell cannabis, possession of drug paraphernalia, possession of a grow house operation, or trafficking in a controlled substance in Tampa, Hillsborough County, FL, call an experienced attorney at the Sammis Law Firm to discuss your case today. Call 813-250-0500 today or visit our main website to learn more information about felony marijuana charges under Florida law at www.SammisLawFirm.com.
Marijuana Grow House Marijuana Information Center:
Florida Law for Marijuana / Cannabis Grow House Operations
This article discusses a recent case result for a client arrested while out of state for violation of probation on a warrant out of Bushnell, Sumter County, Florida. Find out more about possible ways to avoid a delayed extradition process to Bushnell, Sumter County, so that your case can be resolved quickly.
Our criminal defense attorneys represent individuals fighting felony criminal charges involving extradition on a fugitive warrant either to or from Florida.
Keep reading to find out more about our recent case result which also discusses filing and litigating a "Motion to Dismiss for Lack of Jurisdiction" after the probation was extended. Extradition is the process of arresting a person in one state on a Florida warrant in order to bring them back to Florida to face criminal charges.
Many Florida extradition cases involve a person who allegedly violated probation. In those cases, the court usually issues a "no bond" warrant for violation of probation. Read more below to see the result obtain by a criminal defense attorney at the Sammis Law Firm in Tampa, FL, for a specific violation of probation case in Bushnell, Sumter County, FL.
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Man Avoids Extradition to Bushnell, Sumter County, FL, and Then Avoids Sentencing Because Trial Court Granted Motion to Dismiss for Lack of Jurisdiction.
We received a call from a man's family after the man was arrested in Tennessee on a "no bond" warrant out of Bushnell in Sumter County, Florida, for violation of probation on two counts of felony grand theft charges in case number 2002-CF-534 and 2002-CF-532. The affidavit for violation of probation alleged that the man failed to pay over $20,000 in restitution as well as other court costs and fees.
The man's family disputed these figures saying that he had not received credit for all money paid after the man's probation had been transferred from Sumter County, FL, in Bushnell to Tennessee.
Obtaining legal counsel in these cases is important because when you are arrested while out of state on a felony "no bond" warrant out of Florida, you may sit in jail for several months before you are actually extradited. The extradition process is also expensive. Many times, a private company hired by the government will pick up the individual and take the individual on a bus back to Florida which can cost thousands of dollars. To add insult to injury, the trial court will attempt to require the person extradited to pay those extradition fees at sentencing.
One possible way to avoid a delayed extradition process is to file a "Motion to Withdraw Warrant to Avoid Extradition" with the trial court that issued the "no bond" warrant in the first place. In this case, we filed such a "Motion to Withdraw Warrant to Avoid Extradition" on February 4, 2010.
The State Attorney's Office with the Fifth Judicial Circuit in Bushnell, Florida for Sumter County had no objection to having warrant withdrawn based on the fact that the man had hired local counsel to resolve the case and was willing to come back to Sumter County on a voluntary basis to resolve the case. The Court signed an order on February 10, 2010, to withdraw the two felony warrants. The judge in Sumter County also ordered the man to appear for a hearing on March 11, 2010. The man was immediately released from custody out of state.
On March 11, 2010, the man appeared in court in Sumter County for a violation of probation hearing with his attorney, Leslie Sammis. We filed a "Motion to Dismiss for Lack of Jurisdiction" which was granted by the Court. The case was dismissed that day.
The man and his family were able to return to their home state without paying any additional money or facing any jail or prison time for the violation of probation accusation in Sumter County, FL.
The "Motion to Dismiss for Lack of Jurisdiction" showed that on September 17, 2003, entered a guilty plea to two charges of Grand Theft, both third-degree felonies. The charges were run concurrent (which means together or at the same time).
The Sumter County probation was originally scheduled to terminate five years later on September 16, 2008.
First Violation of Probation
On January 14, 2005, the Circuit Court Judge in Sumter County, FL, issued a warrant for the man's arrest which alleged that he violated his probation. Three months later, on April 13, 2005, the man appeared in Court without an attorney and admitted that he violated probation. He was adjudicated guilty of the underlying offenses and sentenced to four additional years of probation with each case concurrent and all special conditions being carried forward.
In effect, the probation was extended to April 13, 2009, beyond the statutory maximum sentence of five years probation allowed under Florida law for a third-degree felony.
Although rare, this problem usually results when the court extends probation. Often the person on probation might ask the court to extend probation so that he has more time to pay restitution. Certainly, being allowed additional time to pay restitution may be far better than facing a violation hearing. Judges and prosecutors must be careful that the probation is not extended beyond the statutory maximum sentence allowed under Florida law.
In this case, the court lost jurisdiction on September 16, 2008 (which was five years after the man had originally been placed on probation).
Second Alleged Violation of Probation
The second affidavit for violation of probation was issued on March 13, 2009 (which was almost 6 months after the Court lost jurisdiction).
The Effect of Filing a Motion to Dismiss for Lack of Jurisdiction
It is well settled that a probation order cannot exceed the legal maximum sentence allowed for the underlying crime. See Francois v. State, 695 So.2d (Fla. 1997); State v. Summers, 642 So.2d 742 (Fla. 1994)("We agree that the [Florida] legislature did not intend to allow such "ad infinitum" extensions of a probationary term that is otherwise subject to a statutory maximum."); Schertz v. State, 387 So.2d 477 (Fla. 4th DCA 1980)(statutory maximum must be observed when modifying or extending probation); Watts v. State, 328 So.2d 223 (Fla. 2d DCA 1976) (Original term of probation may not exceed the statutory maximum.").
The Judge in Sumter County agreed that the court had extended the probation outside of the five year statutory maximum period for a third-degree felony. The violation of probation affidavit was filed during that period of probation that was outside the statutory maximum allowed. Therefore, the Court was without jurisdiction and dismissed the affidavit for violation of probation.
Click below to read more about other recent results in Extradition cases in Florida:
Extradition to Florida - Woman avoids Extradition to Orlando, Orange County, FL, after Court agrees to withdraw warrant, giving the woman a chance to appear voluntarily to resolve her pending charges.
Tampa Extradition Attorney - Man avoids extradition, and then resolves his case completely during motion to surrender hearing in Tampa, Hillsborough County, FL.
If you are interested in finding out more information about any Extradition to Florida on a Fugitive Warrant case, including for Tampa, Hillsborough County, or the surrounding areas, including Bushnell, Sumter County, FL, contact an attorney to discuss your case.
Contact us to find out more information about fighting a criminal charge in Sumter County, including serious felony offenses such as violation of probation, grand theft, and drug offenses. We have also included information here about unusual sentencing schemes used in Bushnell, Florida, to avoid putting people on misdemeanor probation including the conditionally suspended sentence, order of commitment, default, violation of a court order, clerk's certificate of non-compliance, ROR after sentencing, and warrant or capias for arrest.
Find information from other attorneys across the state of Florida about the extradition process:
Extradition on Fugitive Warrant - Attorneys in Brevard County
At the Sammis Law Firm, we have represented individuals charged with this city ordinance who want to fight for the outright dismissal of the charges. Call 813-250-0500 to speak with an attorney today about defenses to this charge including a motion to dismiss if the Tampa Police Department did not properly preserve a sample of the alcoholic beverage.
Tampa Police Department's New "No Tolerance" Policy
Although for years the Tampa Police Department (TPD) absolutely tolerated open containers in and around the parade route, beginning in 2010, the TPD announced a new "no tolerance" policy. A "wet zone" was set up around the parade route from the Bay to the outside curb of Bayshore Boulevard. Any party-goers who walked across that imaginary line with an alcoholic beverage were subject to be arrested or released at the scene with a citation.
A city ordinance is comparable to a second degree under Florida's state law because both are punishable by 60 days in jail and a $500 fine. Additional indirect consequences also apply, including a lifetime ban on the right to seal or expunge any criminal record if convicted of the City of Tampa ordinance for open container.
UPDATE: Avoiding an arrested at the 2011 Gasparilla Parade in which News 10 interviews criminal defense attorney Leslie Sammis about Tampa Police Department's "no tolerance" policy for open container and other alcohol related crimes:
Gasparilla Arrests by Tampa Police Department - Tampa criminal defense attorney, Leslie Sammis, discusses the new "no tolerance" policy against open containers that caused the number of arrests to triple in 2010 even through the crowds were down by half. Almost 400 citations were handed out for city ordinance violations for open containers, an offense punishable a maximum of 60 days in jail and a $500 fine.Tampa's City Ordinance for Open Container
City of Tampa Code of Ordinances, Chapter 3, Alcoholic Beverages, Article IV, Section 3-40, prohibits possession of open containers of alcoholic beverages outside of licensed premises.
Sec. 3-40. - Consumption and possession of open containers on streets, sidewalks, alleys and other public property.
(a) It is unlawful for any person to consume, assist or aid another to consume any alcoholic beverage upon any street, sidewalk, alley or other public property within the city.
(b) It is unlawful for any person to possess an open container of an alcoholic beverage upon any street, sidewalk, alley or other public property, including public or semi-public parking lots, within the city.
(1) As used in subsection (b), "open container" means any vessel or container containing an alcoholic beverage, including beer or wine, which is immediately capable of consumption or the seal of which has been broken.
(2) An open container shall be considered to be in the possession of the person if the container is in the physical control of such person.
(c) Subsections (a) and (b) do not apply when:
(1) The street, connecting sidewalk or alley has been officially temporarily closed upon application to the director of public works and the approval of the city council for the purpose of a block party as provided in this Code, or
(2) A portion of a sidewalk has been leased and permitted as a sidewalk cafe as provided for in Chapter 22 of this Code, or
(3) Public property has been zoned and permitted for the sale of alcoholic beverages pursuant to law, or
(4) A portion of the street, connecting sidewalk or alley has been marked and/or designated as a crossing for a public golf course.
(Ord. No. 99-229, § 1, 10-28-99; Ord. No. 2007-19, § 2, 2-1-07)
The Penalty Section 1-6(a) of the Code of Ordinances City of Tampa
Sec. 1-6. - General penalty.
(a) Code violations—Fine and/or imprisonment and/or probation. It is unlawful for any person to violate or fail to comply with any provision of this Code and, where no specific penalty is provided therefor, the violation of any provision of this Code shall be punished by a fine not exceeding five hundred dollars ($500.00) and/or imprisonment for a term not exceeding sixty (60) days and/or a term of probation not to exceed six (6) months, as set forth in section 1-6.1 or by both such fine and imprisonment. Each day any violation of any provision of this Code shall continue shall constitute a separate offense.
The attorneys at the Sammis Law Firm represent dog owners who are given a citation for having a "dangerous" or "vicious" dog in the courts throughout the Tampa Bay area, including in Tampa, Hillsborough County, FL. In certain cases, we also represent dog owners sued for damages in state court. After a dog bite occurs, it is important to retain counsel to avoid the drastic sanctions and liability that can otherwise occur. Call 813-250-0500 to discuss your case directly with an attorney if you wish to retain counsel to help you resolve these difficult cases.
Florida law generally imposes a strict liability standard on the owners of dogs that bite or injure a person or another animal. The Florida legislature recognized that this remedy was particularly harsh. Although not expressly stated in all of the strict liability dog bite statutes, numerous defenses exist to these claims which allow the owner of the dog to avoid or limit the liability.
Florida Statute Section 767.01 - Dog Bite or Dog Attack Statute
Florida Statute Section 767.01 does not include any reference to either the "comparative negligence" defense or the bad dog sign defense. Section 767.01 was enacted long before the Florida legislature enacted 767.04. Why would the newer statute list these important defenses, when the statute 767.01 does not?
The Courts have settled this issue by holding that the defenses contained in Florida Statute Section 767.04 also apply equally to dog bite claims under Florida Statute Section 767.01.4.
Only Two Defenses Apply to Florida's Strict Liability Dog Bite Statute
The only two defenses available are listed in Fla. Stat. § 767.04. No common law defenses are applicable.
Comparative Negligence - When the Person or Animal Bitten is at Fault
Under Florida law, once the dog owner makes an affirmative showing that the dog was provoked, then the dog owner can seek to avoid or limit liability for any dog bite, attack, or other injury under the comparative negligence standard. Asserting this affirmative defense requires a showing that the person or animal bitten or otherwise injured was at least partially at fault for the injury.
When the person or animal bitten is the proximate cause of the bite or attack, then that negligence can eliminate the dog owners liability, or at least limit the liability in certain cases.
Florida Statute 767.04 provides:
any negligence on the part of the person bitten that is a proximate cause of the biting incident reduces the liability of the owner of the dog by the percentage that the bitten person's negligence contributed to the biting incident.In fact, the former version of Florida Statute Section 767.04 included the following phrase:
no owner of any dog shall be liable for any damages to any person or his property when such person shall mischievously or carelessly provoke or aggravate the dog inflicting such damage.If the person or dog bitten engaged in such behavior which caused the incident, then that behavior would constitute comparative negligence under the newer version of Florida's dog bite statute.
Under the more recently enacted version of the dog bite statute, the Florida legislature wanted to increase the available defenses which would allow the owner to reduce or eliminate the liability for a dog bite case in certain instances.
Under the older version of the dog bite statute (although still applicable now), the court in Donner v. Arkwright-Boston Manufacturers Mutual Insurance Company, 358 So. 2d 21, 24 (Fla. 1978) held as follows:
the legislature apparently felt that good morals dictated that if a person kicks, teases, or in some other way provokes the dog into injuring him, he should not be compensated.Under the old statute the defense of provocation or aggravation of the dog acted as a complete defense, under the new statute those defenses trigger the "comparative negligence" standard to limit liability by the percentages of the injured person's own fault (or the fault of another dog the case of an injury to another dog that occurs during a dog fight).
Therefore, the general principles of negligence cases also apply to the dog bite statute, which otherwise provides for strict liability against the owner of the dog.
"Bad Dog" Sign
Under Florida law, the second defense is that a dog owner is not liable for certain damages related to a dog bite or other injury when the owner has prominently displayed a "Bad Dog" sign, although this defense does not necessarily apply when a child under the age of six years old is bitten, attacked or injured.
The attorneys at the Sammis Law Firm understand that any time a dog is accused of vicious or dangerous behavior, the owners of the dog need to act quickly to protect their rights and limit there liability so that the case can be fairly resolved for everyone involves. If you need to retain an attorney in your case, contact us to discuss the particular facts that occurred.
A nine year veteran with the Broward County Sheriff's Office, Deputy Manuel Silva is accused of taking cash from an alleged marijuana grow house operator in exchange for not being arrested on cannabis charges.
During an undercover operation, Deputy Silva allegedly picked up an unspecified amount of cash that he thought was in exchange for not arresting the individual suspected of cultivation of cannabis in Florida.
The internal affairs investigation continues, however it is alleged that Deputy Silva arrived at the grow house in street clothes but while carrying his gun and badge. He threatened to arrest the resident of the grow house operation in Florida unless the cash was paid.
The Deputy even told the alleged marijuana grow house operator who had snitched on his cannabis grow house operation.
The alleged marijuana grow house operator in Florida contacted law enforcement officers through a friend who described the extortion scheme.
At the Sammis Law Firm we focus on marijuana crimes from simple possession of marijuana, possession of cannabis with intent to sell, possession of a marijuana grow house, cultivation of marijuana, manufacture of cannabis, to trafficking in cannabis throughout the Tampa Bay area including Tampa, Hillsborough County, Clearwater, Pinellas County, Bartow, Polk County, New Port Richey or Dade City, Pasco County, Brooksville, Hernando County, Bradenton, Manatee County. Our attorneys are members of the NORML Legal Committee dedicated to fighting for the reform of marijuana laws.
In many Florida cannabis grow house cases, the law enforcement officers conduct illegal searches or seizures under the Fourth Amendment. By aggressively fighting theses cases, our Tampa marijuana lawyers take a scholarly approach to filing and litigation motions to suppress and motions to dismiss.
Many law enforcement officers describe finding grow house operations as "fishing out of a barrel."
Because of the relative easy of investigating these cases, law enforcement officers often take shortcuts that violate our client's rights. Those violations, whether as criminal as extortion or as subtle as overreaching while obtaining "consent" to enter your home can result in the court throwing out all evidence in the case.
If you have been arrested for a marijuana offense in the Tampa Bay or surrounding areas of central Florida contact an attorney at the Sammis Law Firm to discuss the facts and circumstances of your case today during a free and confidential consultation. Call 813-250-0500.
Read more about crimes of extortion in Florida under Florida Statute Section 836.05.