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. 

The attorneys at the Sammis Law Firm welcome your phone calls to discuss the domestic violence or repeat violence petition for protective order injunction hearing. We are experienced with the local procedures used by the Courts throughout the Tampa Bay area. Let us use that experience to assist you with your case.

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:

1. 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;
2. 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;
3. Order a copy of 911 calls related to the alleged incident;
4. Order records related to previous calls for emergency services at the house;
5. Order a copy of any previous petitioner for injunction filed by the petitioner against any other individual;
6. 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).

Contact the Sammis Law Firm to discuss any motion to modify or dismiss the injunction or any motion to extend the domestic violence or repeat violence injunction for any case in the Tampa Bay area including New Port Richey or Dade City, Pasco County, Tampa or Plant City, Hillsborough County, and Clearwater or St. Petersburg, Pinellas County, Florida.

Subpoena for Federal Law Enforcement Agent in State Criminal Case

What happens when a federal agent is involved in a criminal investigation that is ultimately prosecuted in state court? Must the federal agent appear in response to a subpoena for testimony at a hearing, trial, or deposition? Of course, the short answer is "yes." But before you issue the subpoena, this article discusses the roadblocks you might encounter.

A federal agent with DEA, FBI, or the United States Marshals Service is 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 might have other federal agents and local law enforcement officers present for the raid on the house. During the raid, a local law enforcement officer might uncover evidence leading to the arrest of the person for a crime under state law. 

Those crimes might include possession of a firearm by a convicted felon, possession of a controlled substance, or another type of felony criminal charge.

How do you subpoena the agent 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, someone in the home might 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 though 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. 

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.

Objections to a Subpoena for a Federal Agent in State Court

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.

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.

Information to Provide with the Subpoena of the Federal Agent

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 the following: [then list word for word the information listed in each police report or facts in dispute]. 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.

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.

The United States Attorney's Office will take the position that any subpoena duces tecum must contain the following:

1. Identify the employee or record sought;
2. Describe the relevance of the desired testimony or records to your proceeding and provide a copy of the pleadings underlying your request;
3. Identify the parties to your proceeding and any known relationships they have to the Department's mission or programs;
4. Show that the desired testimony or records are not reasonably available from any other source;
5. Show that no record could be provided and used in lieu of employee testimony;
6. Provide the substance of the testimony expected of the employee; and
7. 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).

Although the law does not require such a showing with any "magic language," it certainly prevents any delay (if you want to prevent any delay). 

I still get the form letter, but then I just send another copy of my initial letter and the attachments. If the federal agent fails to appear for the deposition a second time it puts the criminal defense attorney in the best position to argue for sanctions based on the failure to comply with the subpoena for depositions including the dismissal of the charges or exclusion of certain evidence.

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 would not 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.

Hillsborough County Marijuana Grow House Arrest

At the Sammis Law Firm in Tampa, FL, we pay particular attention to the latest developments for marijuana grow house investigations in Hillsborough County.

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:

1. What was the tip or other facts leading to the "knock and talk"?
2. Was the house gated thereby communicating to the officers that they did not have consent to knock on the front door?
3. Once the officers knocked on the front door, did they gain access to the house based on actual consent to enter the home?
4. Was the consent to enter the house really "free and voluntary" or did the officers do something to coerce the consent?
5. Was the consent withdrawn at any point?
6. Did the officers exceed the scope of the consent?
7. Did the officers have any basis to search the house after gaining entry?
8. Did the officers read Miranda prior to interrogation?
9. Did the officers promise the suspect leniency in exchange for the statements?

Because these "knock and talk" searches occur without a warrant and occur at a person's residence, the searches are highly suspect under the Fourth Amendment. Any mistake by law enforcement can lead to the suppression of all evidence gained during the "knock and talk."

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.
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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.