Circuit Judge Steven S. Stephens Denies Find Florida's Drug Laws Constitutional

A Circuit Court Judge in Tampa, the Honorable Steven S. Stephens, did not waste any time denying motions to find Florida's strict liability drug statute unconstitutional even after the recent federal ruling in Mackle Vincent Shelton v. Secretary, Department of Corrections, et. al., Case No.: 6:07-cv-839-Orl-35-KRS. Instead, Judge Stephens consolidated more than 60 cases into a single hearing on Thursday before denying the motions.

In the Mackle Vincent Shelton decision, U.S. District Judge Mary S. Scriven of Orlando found Florida's drug statute to be unconstitutional on its face as a violation of the due process clause of the Constitution of the United States. The fall out continues as thousands of drug convictions are expected to make their way back through the system in direct appeals, post-conviction motions, and federal writs of habeas corpus.

Thousands of pending cases will also be delayed as judges, prosecutors and criminal defense attorneys struggle with the implications of the decision. Read more at Florida's Drug Statute is Unconstitutional: Blame the Legislature - Tough on Crime, Dumb on Due Process.

Florida's Drug Statutes Unconstitutional: Blame the Florida Legislature

Blame the Florida Legislature - Tough on Crime, Dumb on Due Process

RE: Mackle Vincent Shelton v. Secretary, Department of Corrections, et. al.
Case No.: 6:07-cv-839-Orl-35-KRS

The statutory scheme for Florida's most common drug offenses has been declared draconian and unreasonable. A federal court has declared it unconstitutional on its face as a violation of the due process clause of the Constitution of the United States. If this ruling is upheld on appeal, then thousands of drug convictions under Florida law may be reversed even if no contemporaneous objection was made at trial and even if the issue was not raised on appeal. As prosecutors, defense attorneys and judges scramble to understand the implications, let's take a moment to think about how we got to this point.

The Florida legislature has slowing been chipping away at the bedrock principles of our criminal justice system. Instead of simply requiring the prosecutor to prove that someone committed a crime by purposefully doing some act that was against the law, the legislature has attempted to create shortcuts. For drug cases, the shortcut simply eliminated any requirement that the prosecutor prove that the individual knew he or she was in possession of any drug or contraband. This shortcut goes against well-established principles of American criminal jurisprudence that require a choice between "good" and "evil."

In most cases the mens rea element is not a difficult showing for the prosecution. Many people admit to the law enforcement officer that they knew they possessed the illegal drug. In other cases, the knowledge requirement could be met through circumstantial evidence such as the statements of another witness, fingerprints, the location of the drugs, or the observations of the arresting officer. But eliminating the knowledge requirement completely necessarily means that innocent people will be convicted.

Think about it this way, how hard would it be to frame an innocent person under this statute if the prosecutor never had to show that the individual knew the illegal substances was in their possession. In other cases, if you pick up your roommates backpack that contains their illegal or prescription medication, then you may be guilty of possession even if you did not know the controlled substances were in the backpack. If you driving a friend's vehicle and do not know that drugs are hidden under the backseat (illegal street drugs or even prescription medication), then you could be guilty of possession.

Overreaching by the Florida Legislature - Tough on Crime, Dumb on Due Process

This "shortcut" created by the Florida legislature will now prove to be extreme time consuming and expensive as thousands of convictions go back through the system. Perhaps the Florida legislature will be more careful next time before eliminating a requirement that exists in the other 49 states throughout the country. The Florida legislature should act quickly to undo the damage it created from the 2002 amendment that made the statute unconstitutional. The Florida legislature should again amend Florida's drug statute to include some level of culpable scienter or knowledge that the contraband was actually or constructively possessed as an essential element of the crime.

As the Florida legislature is learning, being tough on crime also requires being smart enough to follow the requirements of the United States Constitution. The requirement that criminal statutes provide some form of mens rea to establish guilt is a firmly rooted principal of our system of justice. Although the Florida legislature should act quickly, no one really expects that it will.

What Happened in the Mackle Vincent Shelton Case

In a case out of the United States District Court for the Middle District of Florida, Orlando Division, U.S. District Judge Mary S. Scriven found Florida's drug statute unconstitutional on its face as a violation of the Constitution of the United State's due process clause. After exhausting all of his appeals with the Florida courts, Macke Vincent Shelton filed for federal habeas corpus relief complaining that Florida Statute Section 893.13 is facially unconstitutional because it entirely eliminated the mens rea element from a drug offense and instead created a strict liability offense that resulted in a sentence of eighteen years in Florida state prison.

Macke Vincent Shelton's appointed attorney for the federal habeas corpus action was James E. Felman of Kynes, Markman & Felman, P.A., in Tampa, Florida. Numerous other organizations and law professors joined in filing "friend of the court" briefs, including the Florida Association of Criminal Defense Lawyers (FACDL), the National Association of Criminal Defense Lawyers (NACDL), the Drug Policy Alliance, the American Civil Liberties Union of Florida, the Calvert Institute for Policy Research, and 38 professors of law from 27 different law schools in the United States.

A copy of the Amicus Brief on why Florida's drug statute is unconstitutional can be found on NACDL's website at: http://www.nacdl.org/public.nsf/newsissues/amicus_attachments/$FILE/Shelton_Amicus.pdf

Impact of the Ruling that Florida's Drug Statute is Unconstitutional

The opinion is extremely well written and well reasoned and expected by many to be upheld on appeal to the Eleventh Circuit Court of Appeals. The question then becomes: What impact will it have on drug cases throughout Florida for individuals convicted after 2002? Will the Florida legislature act again to eliminate the 2002 amendment that made Florida's drug statute unconstitutional in the first place.

Ways that individuals charged with or conviction of drug crimes can request relief:

Petition for a Federal Writ of Habeas Corpus Under 28 U.S.C. § 2254 for individuals still being incarcerated in Florida State Prison after a conviction for the unconstitutional drug statute.
Direct Appeals that must be initiated within 30 days of the sentencing by filing a notice of appeal.
Motion for Post-Conviction Relief under Florida Rule of Criminal Procedure 3.850 which must normally be filed within two years of the sentencing or the conviction being affirmed on appeal whichever occurred later.
In Florida's Circuit and County Courts for prosecutions of drug crimes under Florida's statute, preventing the prosecutor from using a prior conviction under the unconstitutional statute to enhance the sentence for a subsequent charge, including removing those points from the sentencing score sheet.
In prosecutions in federal courts, preventing the Assistant United States Attorney (AUSA) from using a prior drug conviction in a Florida prosecution at the state level from being used to enhance a federal sentence or make the individual ineligible for safety value provisions under the Federal Sentencing Guidelines.

History of Florida's Drug Laws

The Florida Legislature made significant changes to Florida's controlled substance abuse laws, FLA.STAT. § 893.13, as amended by FLA.STAT. § 893.101 on May 13, 2002. The changes enacted in 2002 made Florida the only state to expressly to eliminate mens rea as an element of a drug offense.

In deciding whether Florida Statute Section § 893.13 included guilty knowledge as an element of the crime, the Florida Supreme Court found:

We believe it was the intent of the legislature to prohibit the knowing possession of illicit items and to prevent persons from doing so by attaching a substantial criminal penalty to such conduct. Thus, we hold Florida exempts itself from the age-old axiom: “The act does not make a person guilty unless the mind be also guilty.”

Florida law in statute section 893.02(6) defines the term "delivery" under the drug statutes to mean "the actual, constructive, or attempted transfer from one person to another of a controlled substance, whether or not there is an agency relationship.”

Prior to 2002 Florida's Drug Statute Required Instruction that "Knowledge" was an Element

In 1996, the Florida Supreme Court found that prosecutors in the State of Florida were required to prove that the person accused "knew of the illicit nature of the items in his possession." Chicone v. State, 684 So. 2d 736, 744 (Fla. 1996). The Chicone decision also required the trial court to provide for a special jury instruction on the knowledge element.

In 2002, the Florida Supreme Court addressed Florida's statutory scheme for drug crimes and found that “knowledge is an element of the crime of possession of a controlled substance, a defendant is entitled to an instruction on that element, and . . . [i]t is error to fail to give an instruction even if the defendant did not explicitly say he did not have knowledge of the illicit nature of the substance.” Scott v. State, 808 So. 2d 166, 170-72 (Fla. 2002).

Where the Florida Legislature Got It Wrong

In a knee jerk reaction to the Chicone v. State and more recent Scott v. State decision, the Florida legislature decided to prevent the Florida Supreme Court from inserting the knowledge element into Florida's drug statutes. In May of 2002, the Florida legislature amended Florida's Drug Abuse and Prevention and Control law to provide:

The Legislature finds that the cases of Scott v. State, Slip Opinion No. SC94701 (Fla. 2002) and Chicone v. State, 684 So. 2d 736 (Fla. 1996), holding that the state must prove that the defendant knew of the illicit nature of a controlled substance found in his or her actual or constructive possession, were contrary to legislative intent.

The Legislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter.

Lack of Knowledge as an Affirmative Defense under Florida's Drug Statutes

In amending Florida's drug statutes, the Florida legislature effectively removed the "knowledge" element from Florida's drug statute and replaced it with a drastically "affirmative defense" provision that shifting the burden of proof and production to the person accused. The Florida legislature further provided in Florida Statute Section 893.101, the following provision:

In those instances in which a defendant asserts the affirmative defense described in this section, the possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance. It is the intent of the Legislature that, in those cases where such an affirmative defense is raised, the jury shall be instructed on the permissive presumption provided in this subsection.

This 2002 amendment made Florida's statutory scheme unique from any other state in the country for two reasons:

The amendment made possession, delivery, or trafficking of a controlled substance a general intent crime which no longer required the prosecutor for the State of Florida to prove that the person accused of the drug crime was even aware that the contraband was illegal.
The amendment required the defendant to assert lack of knowledge as an affirmative defense.
If the defendant asserted such an affirmative defense in a case of either actual or constructive possession of the controlled substance, then the jury was instructed on a permissive presumption that "the possessor knew of the substance's illicit nature."
Essentially, the burden was placed on the person accused to rebut the presumption that he knew of the substance's illicit nature.

See Wright v. State, 920 So. 2d 21, 24 (Fla. 4th DCA 2005).

Federal Habeas Corpus Relief from Florida's Unconstitutional Drug Statute

In federal court, a Writ of Habeas Corpus is filed pursuant to 28 U.S.C. § 2254. Relief under this provision is limited to individuals being imprisoned by the state when that conviction is in violation of the Constitution of the United States of America or other clearly established federal laws. But when the appeals in Florida's appellate courts resulted in a per curiam affirmance the decisions have no precedential value and are not an adjudication on the merits. Therefore, in Mackle Vincent Shelton v. Secretary, Department of Corrections, et. al., the federal court found that "no deference is due to the state court’s decision." Instead, Shelton's constitutional challenge to Florida Statute Section 893.13 was then decided under a de novo standard of review.

Under that standard, the federal court found Florida Statute Section 893.13 to be unconstitutionally on its face because it resulted in a strict liability offense which provided for overly broad regulation of otherwise innocuous conduct.

What Should the Public Know About this Ruling?

Perhaps the best way to explain this ruling to the public is to explain what happens when the Florida legislature eliminates the intent, knowledge or mens rea element from other criminal offenses. The opinion asks these questions:

Could the legislature amend its murder statute such that the State could meet its burden of proving murder by proving that a Defendant touched another and the victim died as a result, leaving the Defendant to raise the absence of intent as a defense, overcoming a permissive presumption that murder was the Defendant’s intent?...

Could the state prove felony theft by proving that a Defendant was in possession of an item that belonged to another, leaving the Defendant to prove he did not take it, overcoming a permissive presumption that he did?

Judges, criminal defense attorneys, and prosecutors throughout the State of Florida will continue to deal with the implications of the Florida legislature's 2002 amendment. The public will surely react with rage as it considers the implications of thousands of drug convictions working their way back through out criminal justice system. Who is to blame? Blame the Florida legislature that continues to attempt to amend and create criminal statutes without a knowledge, intent or mens rea element.

Related News Stories on Constitutionality of Florida's Drug Laws:

Florida Judge Declares State’s Drug Law Unconstitutional - Blog article from the Wall Street Journal Law Blog published on July 27, 2011.

Florida: Drug Laws Ruled Unconstitutional -News article from the New York Times about the federal decision finding Florida's drug law unconstitutional.

Videos on Florida's Unconstitutional Drug Law:

Crime Statistics in Florida: Three Minutes of Justice at Arraignment

More than 500,000 individuals are charged with a misdemeanor crime each year. That number represents roughly 3% of Florida's adult population. A new report on the impact of these misdemeanor cases was written by Sean Maddan, Ph.D., and Alisa Smith, J.D., with the University of Tampa, Department of Criminology and Criminal Justice. The report looks at the statistics showing how many of these cases are resolved at first appearance or arraignment by individuals that do not have an attorney.

Studies on National Crime Statistics for Misdemeanor Offenses

Earlier in 2011, the National Association of Criminal Defense Lawyers (NACDL) published a report called Minor Crimes, Massive Waste that looked at the way misdemeanor cases are resolved throughout the United States.

Studies on Crime Statistics for Misdemeanor Offenses in Florida

The national study was followed up by a statewide study that focused exclusively on the way such cases are handled in various counties throughout the State of Florida. Click here to ready more about crime statistics in Florida and the new study called Three Minute Justice; Haste and Waste in Florida’s Misdemeanor Court. You can read the full report here statistics on misdemeanor arraignments in Florida.

For the cases included in the study:

70% were resolved at arraignment;
85% of the misdemeanor arraignments lasted less than 3 minutes; and
65% of individuals at the misdemeanor arraignment did not have an attorney (either a privately retained attorney, appointed counsel, or an attorney from the public defender's office).

The Impact of Three Minutes of Justice for Individuals without an Attorney

The study goes on to discuss the impact these "three minutes of justice" will have on the individual for the rest of their life, including:

The direct consequences announced by the misdemeanor judge including a withhold of adjudication or a conviction, jail time or probation, fines and court costs, jail time, cost of prosecution, cost of supervision, cost of investigation, costs of attend classes for DUI school, drug and alcohol treatment, domestic violence classes, and more.
The collateral consequences that are rarely discussed at first appearance or arraignment such as:
- Being labeled with a conviction for a “crime of dishonesty” which is always an impeachable offense that makes it difficult to pass even the most basic background check;
- Being convicted of a “drug crime” for the large number of possession of marijuana charges which come with a host of implications for obtaining financial aid, getting scholarships, finding housing, and obtaining employment;
- Ineligibility to care for foster children under Fla. Stat. §§ 39.001, 39.0121;
- Loss or denial of employment for state, municipal, or other public employers as provided by Fla. Stat. §§ 943.13, 110.1127, 110.127, 166.0442, and 30.29;
- Suspension or refusal to grant a dental, nursing or medical license as provided in Fla. Stat. §§ 466.0067, 456.074, and 456.039;
- Inability to obtain public housing for certain misdemeanor convictions as provided in Fla. Stat. § 60.05; and
- Suspension of a Florida driver’s license or commercial driving privileges as provided in Fla. Stat. §§ 322.03, and 316.302.

The report contains common sense recommendations that should be a must read for judges, prosecutors, public defenders, and private criminal defense lawyers. As budget cuts put more and more pressure on trial judges to handle such cases with even greater haste, we quickly reach the point that the haste ends up creating an ineffective system is counter-productive for the taxpayers of the State of Florida.

The Hidden Costs Associated with Hasty Decisions

Those individuals tarnished with an unduly hasty decision return to our communities where they are often unable to find employment, return to school, or enjoy the small benefits that those of us without a criminal record take for granted. When the individual commits a serious crime such consequences are justified, but for many minor misdemeanor offenses those "three minutes of justice" may be completely inadequate.

My Two Cents - The Role of the Public Defender

In my opinion, the fastest way to help correct this problem is for public defenders to give a speech before the judge takes the bench explaining what is about to take place and advising those people in the courtroom about the benefits of at least talking to a criminal defense attorney about their options before they enter a plea of guilty or not guilty. When I was a young public defender 10 years ago, our office required us to give such a speech before court began.

The most important part of the speech - "whether you enter a plea of guilty or whether you enter a plea of not guilty and post bond, you will be released from the jail at the same time." I say that because many people believed that by entering a plea they would be released from custody faster. Other people were irrationally afraid that their family would bond them out even though the family was already in the process of bonding them out of jail.

We all knew that whether we gave that speech and the way we gave that speech made a huge difference in how many people asked to return with an attorney, how many people asked to have a public defender appointed, and how many people entered a plea of "not guilty."

The judges hated it because it caused fewer people to plead guilty. Some judges called it "soliciting" clients which is kind of silly when you are a public defender. But counteracting that perception that the best thing to do was enter a plea and "get it over with" was important.

The person accused for the first time, young people and lower income individuals are at a huge disadvantage during those three minutes of justice. But at the end of the day the person accused has a responsibility to seek out information and make the best decision for their particular case.

Ron Paul on Marijuana Prohibition at Federal Level: "Joint" Congressional Legislation

The forty year war on drugs is beginning to end. Congress is introducing legislation that would end marijuana prohibition at the federal level. Ron Paul sponsored the legislation. While other snicker, Ron Paul knows that ending cannabis prohibition will cut the drug cartel's profits in half over night.

Ron Paul Introduces Legislation to End Marijuana Prohibition at Federal Level

Think about it - the most commonly used drug in the United States and suddenly the Mexican drug cartel has no ability to make a profit by bring it across our borders. Even the DEA estimates that marijuana imports make up about 50% of the profits from drug cartels.

Law enforcement could spend their resources on more important matters. Think about this - at a local level roughly 15% of the arrests made are for possession of marijuana. That percentage is roughly the same from Florida to New York.

The Republican and Democrats can continue with the status quo. But Ron Paul may just come in to surprise everyone if he keeps standing on principle. This is not about keeping the dope smokers happy. This is about redefining the role of government. End marijuana prohibition is one necessary step in that transition.

The legislation is modeled after the Repeal of Alcohol Prohibition. Rep. Ron Paul (R-TX) and Rep. Barney Frank (D-MA) introduce bi-partisan legislation today which will effective end the federal war on marijuana. Instead of prohibition, the federal law enforcement efforts would be limited to stopping marijuana and other drugs from crossing our boarders. In other words, regulating marijuana becomes the responsibility of the states not the federal government.

The legislation, called the "Ending Federal Marijuana Prohibition Act of 2011" removes marijuana and THC from the five schedules of the United States Controlled Substances Act of 1970. So marijuana would no longer be a Schedule I controlled substance. Furthermore, the feds would be prohibited from going after adults who possess marijuana in state in which the substance is legal.

This new marijuana legislation would end the conflict between the sixteen states that have decriminalized marijuana and the federal government current enforcement tactics. States would be able to regulate marijuana on a state by state basis.

Ron Paul's Standing on Principle

If you favor the legislation then fax, call and e-mail your representatives in the House and Senate. Spread the word. Let's more the left and the right more towards a smaller federal government. Let's stop bankrupting this Great Country on wars we cannot win and cannot afford.

If Ron Paul keeps standing on principle, he can win this election.

Attorney for Hearings on Petition for Protection Against Domestic Violence or Repeat Violence in Tampa and Plant City in Hillsborough County, FL

So you were just served with a Temporary Injunction for Protection Against Repeat Violence or Domestic Violence in Tampa or Plant City for Hillsborough County, FL?

This article discusses general information to help you spot the issues presented in many of these cases. However, in order to obtain advice about what you should do next you must contact an attorney to discuss the particular facts of your case.

The attorneys at the Sammis Law Firm provide free consultations to talk with anyone served with a temporary injunction for protection against repeat violence or domestic violence for Hillsborough County or the surrounding counties of Pasco, Pinellas, or Polk County, FL.

Leslie Sammis has more than ten years experience fighting domestic violence cases to protect her clients from the impact of false or exaggerated accusations. Call 813-250-0500 to talk directly with the attorney about the case.

Last Updated on September 9, 2013

Judges for Restraining / Protective Order Hearings in Tampa

Currently, the hearings for the temporary injunctions for protection against repeat violence (or domestic violence) are heard in front of one of these three Circuit Court Judges for Hillsborough County, FL:

The Honorable Frances M. Perrone, judge for repeat violence, dating, stalking or domestic violence injunction hearings in Division "G" in courtroom 302 in the Edgecomb Building at 800 East Twiggs Street, Tampa, FL 33602.

The Honorable Scott A. Farr, judge for for repeat violence, dating, stalking or domestic violence injunction hearings) at courtroom 303, Division "H" at 800 East Twiggs Street, Tampa, FL 33602.

Judges for Restraining / Protective Order Hearings in Plant City, FL

For cases in Plant City, the case will be assigned to Division "S" before The Honorable Art E. McNeil in courtroom 1 (for repeat violence, dating, stalking or domestic violence injunction hearings) in courtroom P-1 at the Plant City Courthouse at 302 North Michigan Avenue, Plant City, FL 33563.

Cases in Plant City can also be assigned to Division "V" before The Honorable Dick Greco, Jr., in courtroom 2 at 301 North Michigan Ave., Plant City, FL 33563.

Consequences of a Domestic Violence or Repeat Violence Injunction

You should talk with an attorney about the possible consequences that can occur if the court finds a sufficient basis to issue a Temporary or Final Judgment of Injunction for Protection Against Repeat Violence or Domestic Violence. These consequences can include:

Not being able to return to a certain location including your home or place of business;
Not being able to see your children;
Losing your right to possess a firearm or dangerous weapon while the injunction is in effect; and
Having the allegations in the petition and the fact that an injunction was granted show up in any basic background check for the rest of your life.

Reasons to Request a Continuance so Your Attorney Can be Completely Prepared

The hearing is your one chance to present testimony from witnesses such as neighbors or police officers. It is also your one chance to provide the court with relevant documents that may show that the allegations against you are false or exaggerated.

In many of these cases the hearing is scheduled within a few days or a few weeks of when the petition for the injunction is served on the Respondent. Often this very short period of time is insufficient to be properly prepared for the hearing.

Your attorney may need to obtain police reports, subpoena witnesses to testify at the hearing, and locate documents such as prior legal filings between the parties, text messages, e-mail records, comments on Facebook or other social media profiles, and/or phone records.

Your attorney may also need additional time to subpoena the Petitioner (the one making the allegations of domestic violence or repeat violence) to testify at depositions. Your attorney can also find out what exhibits or witnesses the Petitioner intends to present at the hearing.

Depositions give your attorney an opportunity to question the petitioner under oath about the allegations prior to the actual hearing. In these cases in which your attorney needs additional time to be prepared for the hearing, your attorney can ask the court for a continuance after showing good cause for the request.

Tampa Protective Order / Restraining Order Attorney

Warning: Do not violate the letter or spirit of the temporary injunction. Do not contact the Petitioner in any way for any reason including text, phone calls, letters, flowers, or messages through a third party. Read the order carefully. Do not return to the home to retrieve your personal items without a police escort.

Obtaining Experienced Representation at an Injunction Hearing in Tampa or Plant City, FL

If you were served with an injunction for protection against domestic violence or repeat violence then contact an attorney to discuss the facts of your case. You may decide not to contest the injunction. However, if the allegations are false or exaggerated then you may decide to hire an attorney to represent you at the hearing. Our offices are located in downtown Tampa.

We represent Respondents at the hearings on petitions for an order of protection against repeat violence or domestic violence in Tampa and Plant City, FL.

Related domestic violence charges prosecuted in state court can include: domestic violence battery, assault, aggravated battery by strangulation, battery on a pregnant female, false imprisonment and interference with a 911 call.

New Florida Firearm Laws Approved by Senate

Florida's New Firearm Laws

The Florida Senate passed two important bills that protect citizens from unfair prosecutions related to the possession of a firearm. This new legislation gives advocates for gun rights throughout Florida reason to celebrate.

House Bill 45, which was substituted for Senate Bill 402 based by a 30-8 margin. This bill prohibits local governments from passing their own patchwork of gun laws that would vary from one part of the state to another. This bill has already passed and is waiting to be signed by Governor Rick Scott. Gun rights advocates consider this bill an important piece of legislation that prevents unfair prosecutions as individuals travel from one part of the state to another. Individuals are often unaware of small difference in the laws related to firearm possession in various cities or counties throughout the state.

Senate Bill 234, known as the "accidental display bill" provides a defense to the second degree misdemeanor offense of carrying a firearm in open view under Florida Statute Section 790.053 and may possibly impact the first degree misdemeanor of improper exhibition of a firearm. The bill was approved by a margin of 26-11. This bill started off as an "open carry” law but was watered down to decriminalize the accidental showing of a concealed weapon. Although the bill was watered down, it may still provides a very important protection against Florida's broad statute concerning the "improper" exhibition of a firearm.

Careless Exhibition of a Firearm under Florida Law

We all know that Florida law allows a person who possesses a valid permit to carry a "concealed" weapon. Many people do not realize that it is a first degree misdemeanor to "carelessly" exhibit the firearm to another. This misdemeanor crime is one of the most commonly prosecuted firearm charge in Florida, although it is unclear how many times these prosecutions involve careless acts as opposed to intentional acts since the statute allows either.

Florida Statute Section 790.10 is entitled, "improper exhibition of dangerous weapons or firearms." The statute provides as follows:

"if any person having or carrying any . . . weapon shall, in the presence of one or more (other) persons, exhibit the same in a rude, careless, angry or threatening manner, not in necessary self defense, the person so offending shall be guilty of a misdemeanor of the first degree".

Florida's New Law on Carrying Firearm in Open View

The new statutory language provides:

1  
    2         An act relating to firearms; amending s. 790.053,
    3         F.S.; providing that a person who is licensed to carry
    4         a concealed firearm is not in violation of law if the
    5         firearm is briefly and openly displayed under certain
    6         circumstances; amending s. 790.06, F.S.; allowing the
    7         Division of Licensing of the Department of Agriculture
    8         and Consumer Services to take fingerprints from
    9         concealed carry license applicants; providing that a
   10         person may not openly carry a weapon or firearm or
   11         carry a concealed weapon or firearm into specified
   12         locations; providing that concealed carry licensees
   13         shall not be prohibited from carrying or storing a
   14         firearm in a vehicle for lawful purposes; providing
   15         that a provision limiting the scope of a license to
   16         carry a concealed weapon or firearm does not modify
   17         certain exceptions to prohibited acts with respect to
   18         a person’s right to keep and bear arms in motor
   19         vehicles for certain purposes; repealing s. 790.28,
   20         F.S., relating to the purchase of rifles and shotguns
   21         in contiguous states; amending s. 790.065, F.S.;
   22         providing that specified provisions do not apply to
   23         certain firearms transactions by a resident of this
   24         state; providing an effective date.
   25  
   26  Be It Enacted by the Legislature of the State of Florida:
   27  
   28         Section 1. Subsection (1) of section 790.053, Florida
   29  Statutes, is amended to read:
   30         790.053 Open carrying of weapons.—
   31         (1) Except as otherwise provided by law and in subsection
   32  (2), it is unlawful for any person to openly carry on or about
   33  his or her person any firearm or electric weapon or device. It
   34  is not a violation of this section for a person licensed to
   35  carry a concealed firearm as provided in s. 790.06(1), and who
   36  is lawfully carrying a firearm in a concealed manner, to briefly
   37  and openly display the firearm to the ordinary sight of another
   38  person, unless the firearm is intentionally displayed in an
   39  angry or threatening manner, not in necessary self-defense.
   40         Section 2. Paragraph (c) of subsection (5) and subsection
   41  (12) of section 790.06, Florida Statutes, are amended to read:
   42         790.06 License to carry concealed weapon or firearm.—
   43         (5) The applicant shall submit to the Department of
   44  Agriculture and Consumer Services:
   45         (c) A full set of fingerprints of the applicant
   46  administered by a law enforcement agency or the Division of
   47  Licensing of the Department of Agriculture and Consumer
   48  Services.
   49         (12)(a) A No license issued under pursuant to this section
   50  does not shall authorize any person to openly carry a handgun or
   51  carry a concealed weapon or firearm into:
   52         1. Any place of nuisance as defined in s. 823.05;
   53         2. Any police, sheriff, or highway patrol station;
   54         3. Any detention facility, prison, or jail;
   55         4. Any courthouse;
   56         5. Any courtroom, except that nothing in this section would
   57  preclude a judge from carrying a concealed weapon or determining
   58  who will carry a concealed weapon in his or her courtroom;
   59         6. Any polling place;
   60         7. Any meeting of the governing body of a county, public
   61  school district, municipality, or special district;
   62         8. Any meeting of the Legislature or a committee thereof;
   63         9. Any school, college, or professional athletic event not
   64  related to firearms;
   65         10. Any elementary or secondary school facility or
   66  administration building;
   67         11. Any career center;
   68         12. Any portion of an establishment licensed to dispense
   69  alcoholic beverages for consumption on the premises, which
   70  portion of the establishment is primarily devoted to such
   71  purpose; any elementary or secondary school facility; any career
   72  center;
   73         13. Any college or university facility unless the licensee
   74  is a registered student, employee, or faculty member of such
   75  college or university and the weapon is a stun gun or nonlethal
   76  electric weapon or device designed solely for defensive purposes
   77  and the weapon does not fire a dart or projectile;
   78         14. The inside of the passenger terminal and sterile area
   79  of any airport, provided that no person shall be prohibited from
   80  carrying any legal firearm into the terminal, which firearm is
   81  encased for shipment for purposes of checking such firearm as
   82  baggage to be lawfully transported on any aircraft; or
   83         15. Any place where the carrying of firearms is prohibited
   84  by federal law.
   85         (b) A person licensed under this section shall not be
   86  prohibited from carrying or storing a firearm in a vehicle for
   87  lawful purposes.
   88         (c) This section does not modify the terms or conditions of
   89  s. 790.251(7).
   90         (d) Any person who knowingly and willfully violates any
   91  provision of this subsection commits a misdemeanor of the second
   92  degree, punishable as provided in s. 775.082 or s. 775.083.

When does a careless or inadvertent exhibition of a firearm occur?

So if a person is lawfully carrying a concealed weapon that is inadvertently displayed then the misdemeanor offense can be alleged and prosecuted. How would such an inadvertent display occur? Possible situations that could be impacted by this new legislation could include the following:

A man has a firearm in a holster on his belt. The wind blows his jacket away from his body and a bystander sees the firearm on his belt and becomes concerned.
A woman has a firearm in her purse. While standing in line in the grocery store the woman reaches into the purse to get a wallet and the person in line behind her sees the firearm in the bag and becomes concerned.
A person with a concealed weapon repositions the weapon in a manner that makes it visible to another person.
A person leaves a firearm in a bag that is within reach of a child or teenager and another person becomes concerned and calls the police.

Why have a criminal charge that doesn't require a willful act?

Most criminal offenses in Florida require a showing that the person accused committed the act willfully, intentionally and with knowledge. The improper exhibition statute, however, allowed for the much lower showing that the person accused acted "carelessly." That determination of whether the defendant was careless or not in exhibiting the firearm might ultimately be decided by the jury at trial.

But even in questionable cases the individual could be arrested, driven to the jail, booked into the jail, required to post bond, forced to hire a criminal defense attorney, and then appear in court for pre-trial hearings in order to fight the criminal charge. If you think that overly aggressive prosecutions don't occur then think again. Prosecutors often say they have "no discretion" when it comes to firearms cases. Many prosecutors believe any firearm charge must be prosecuted aggressively.

Does Florida's Senate Bill 234 known as the "accidental display bill" really matter?

Although some may argue that "careless" exhibitions are rarely prosecuted, it is hard to imagine any "careless" exhibition that should be prosecuted if the person did not act willfully and with knowledge.

Case law indicates that the firearm must be displayed in a manner that a "reasonable person" might think they could get accidentally shot or in a manner that is "blatantly offensive." Who decides what conduct is "blantantly offensive"? Florida has very little case law that defines or limits this standard under particular factual situations.

These standards are difficult to apply in many circumstances. Law enforcement officers often make an arrest first and ask questions later, so by using a "careless" standards instead of a "willful" standard overly aggressive or selective prosecutions could occur.

What do you think of the proposed legislation?

It is already well-settled under Florida law that it is an affirmative defense if the weapon is displayed in the course of acting in lawful self-defense. What will the impact of this new legislation be on the prosecution of cases for an "accidental display" or "careless" exhibition of a firearm?

Hillsborough County Seal and Expunge Video

After an arrest it is important to preserve your right to seal or expunge your criminal record. The internet has brought a new level of transparency to all levels of our life. This level of transparency can cause a lot of problems when friends, family and potential employers can find a mug shot simply by looking on the Hillsborough County Sheriff's Office (HSCO) website.

Even more problematic, some private data mining companies are creating profiles based on these mug shots which are optimized for the individuals name. In other words, if you have an fairly unusual name and enter it in Google's search engines, the first listing will be a website that has your mug shot and arrest information displayed.

Everyday I sit in court and watch individuals waive their right to an attorney and enter a plea to some misdemeanor offense. I wonder how many of them realize that an adjudication to that offense means they will never be able to seal or expunge any criminal record for the rest of their life.

Learn more about the seal and expunge process. You can only seal or expunge one record in your lifetime. If you have a series of arrest records related to one type of incident you should contact an attorney. Even separate case numbers can be combined in the petition to seal or expunge a record if you can show it was all one related "incident."

Read more about how we help people seal or expunge a criminal record in Tampa or Hillsborough County, FL, and the surrounding areas. Watch an informative video on the topic created by the Hillsborough County Clerk's Office:

Additional Resources

How Long it Takes to Expunge or Seal a Criminal Record - Learn more about why it takes an average of 6 to 10 months to expunge or seal a criminal record history in Tampa or Hillsborough County, FL. Also find out why you might need a lawyer to help you expunge or seal the record instead of trying to do it yourself to save money.

Florida Drug Trafficking Minimum Mandatory Sentences Would be Abolished IF New Florida Bill Passed

Read more about Senate Bill 1334 recently sponsored by Sen. Ellyn Bogdanoff (R-Fort Lauderdale, Florida) and the house counterpart, House Bill 917, sponsored by Rep. Ari Porth (D-Coral Springs, Florida). The bills seek to abolish all minimum mandatory requirements but would leave the current fines in place which range from $25,000 to $500,000. The proposed legislation requires substance abuse treatment and allows for reentry programs for certain non-violent drug offenders.

The current system is particularly unjust for individuals with substance abuse problems who are in possession of prescription medication (without a valid prescription). Even one bottle of pills can trigger the minimum mandatory sentences. In many of these cases, the possession may have been intended only for personal use, although those individual are now automatically deemed to be "drug traffickers" under the current statutory scheme. The legislation applies not only to prescription medication, but also to common street drugs such as cocaine and heroin.

Under the proposed legislation judges would have more control to fashion reasonable sentences depending on the particular facts of the case instead of warehousing non-violent offenders for decades in Florida's Prison System. Creating more reasonable sentences will also save the tax payers millions of dollars and allow those resources to be put to better use in fighting substance abuse issues.

Read more from Families Against Mandatory Minimums on Monday, February 28, 2011 at 12:25pm

Twin bills filed in the Florida Legislature this week propose doing away with mandatory minimum sentences for trafficking in controlled substances, which currently range anywhere from three to 25 years depending on the weight of the substance.

Read a recent article about this proposed legislation: http://slee.blogs.ocala.com/10800/mandatory-minimums-focus-of-new-bills/?tc=ar

Doctors, Pain Clinics & Pill Mills

Detectives with the Hillsborough County Sheriff’s Office (HCSO) wrapped up the first phase of an investigation of Tampa Bay pain clinics. The three-month undercover investigation in the Tampa Bay area was dubbed "Operation Pain Reliever." The first phase of the investigation resulted in more than 85 men and women being arrested and charged with felony offenses that included doctor shopping, conspiracy to traffic in prescription medications and trafficking in a controlled substance over 28 grams.

During the investigation, undercover officers entered pain clinics posing as patients in order to gather evidence of buying pills, doctor shopping, and presenting fake or forged prescriptions. The detectives also recruited confidential informants who were working as employees in the pain clinics in an attempt to gather additional evidence. The detectives also used current and former patients as confidential informants to gather evidence against area doctors.

Those men and women who were recently arrested will be interrogated in order to gather information about the doctors that run the various pain clinics throughout the Tampa Bay area. Several doctors have been arrested for running pain clinics in Florida after law enforcement officers converged on their homes and businesses and raided business records, froze bank accounts, and seized vehicles and other valuables labeled as evidence of criminal wrongdoing. In some instances, the law enforcement agencies attempted asset forfeiture actions against the seized property.

Law enforcement officers predict more arrests of health care professionals during the coming months as evidence is gathered against the pain clinics, often called "pill mills" by law enforcement officers. Possible criminal charges include racketeering, trafficking in a controlled substance over 28 grams and conspiracy to traffic a controlled substance, operating a Tampa pain clinic without a license,

Read more about Hillsborough County Pain Clinic Doctor Investigations - 02/03/2011 press release.

Tampa Police Department, Gasparilla, and the "Zero Tolerance" Arrest for Open Container

Want to avoid being arrested at Gasparilla?

Last year, the Tampa Police Department's new "Zero Tolerance" policy on open containers caught many by surprise. Although the rain cut attendance in half, the number of people arrests more than tripled. In 2010 more than 413 individuals arrested. Most of those people were arrested and released at the scene with a "notice to appear" citation on a City of Tampa ordinance violation.

Imaginary Line - Wet Zone and Dry Zone

Officials with the Tampa Police Department promise more signs this year. Most of the paper signs last year were destroyed by the rain so most people were unsure where the imaginary line for the "wet-zone" started or stopped.

Possessing an alcoholic beverage outside of the parade route let to hundreds of citations for city ordinance violations. Technically, the "wet-zone" extends from the far curb on Bayshore to the bay.

For those individuals stopped by the police who were from out of town, they were taken to jail, booked and subjected to a mug shot before being allowed to post a $250.00 bond. That arrest record and mug shot is published on the Hillsborough County Sheriff's Office website. Other records of the prosecution are published on the Hillsborough County Clerk of Court's website, including details about each court date and the final disposition of the case.

Selective Enforcement of Tampa's Open Container Ordinance

It has been reported that the Tampa Police Department selectively enforced the "zero tolerance" rule by yelling for a group to freeze and then selecting the most cooperative member for interrogation. Some people would keep walking or simply poured the beverage onto the ground. For those individuals who stopped to talk to the police, and admitted having alcohol, the police rewarded them with a citation for "open container." In some cases, the officers took samples of the alcoholic beverages as evidence.

Illegal and Unreasonable Detentions at Gasparilla 2011

Tampa criminal defense attorneys will argue that in many of these cases the law enforcement officers exceeded their authority by illegally detaining individuals without any reasonable grounds to justify the stop. By filing a motion to suppress evidence gathered as a result of the illegal detention, all evidence gathered during the illegal detention could be suppressed. Without evidence of possession of an alcoholic beverage or open container, the prosecutor could be forced to drop the charges before trial.

The Tampa City Ordinance for Open Container is Comparable to a 2nd Degree Misdemeanor

Tampa's city ordinance violation is comparable to a second degree misdemeanor under state law. Both are punishable by 60 days in jail or 6 months probation and/or a $500.00 fine. The notice to appear requires a court appearance in front of a county court judge.

A conviction for a city ordinance violation has many of the same indirect consequences as a criminal conviction for a second degree misdemeanor - including a life-time ban on the ability to seal or expunge any criminal record in the future.

Read the more about Arrested for open container at Gasparilla? What you need to know... which includes a copy of the statutory language for the City of Tampa ordinance violation or watch the video from 10 News:

If you want an alcohol free event, then enjoy the Children's Gasparilla Extravaganza on January 22nd.
Arrested at Gasparilla? Open Container Penalties - Read more about why arrests at Gasparilla tripled even though the attendance was cut in half in 2010.

Update for Gasparilla 2011 Arrests by Tampa Police Department - Video called "Responsibility Matters" narrated by Chief Jane Castor and Officer Roy Paz with the Tampa Police Department. In the video, TPD Chief Castor and Officer Paz explain the TPD Educational Campaign and Zero Tolerance Enforcement Plan for Gasparilla 2011.

Joe McNamara Explains the DEA's Failed War on Drugs

Joe McNamara, former San Jose police chief, on Fox News talking about the DEA's failed war on drugs. Did you know about the DEA's vastly expanding presence across the globe in an effort to eradicate drugs? Secret diplomatic cables obtained by WikiLeaks and released to the media provide tremendous insight into how the DEA operates in foreign countries.

New York Times - What WikiLeaks Obtained Cables Tell Us About DEA Expansion

Joseph McNamara is a member of Law Enforcement Against Prohibition (LEAP), which any civilian can join for free at http://www.CopsSayLegalizeDrugs.com

View his impressive profile here - Joe McNamara's LEAP Profile.

William "Billy" Murphy, Jr. - Baltimore Attorney's Educational Video on Dealing with the Police

We recently had an opportunity to attend the NORML Key West Legal Seminar in Key West, Florida. One of the highlights of the event was an inspirational speech on "Representing the Poor and Disenfranchised" delivered by legendary Baltimore Criminal Defense Attorney, William H. “Billy” Murphy, Jr.

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

Tampa Attorney on Injunctions for Domestic Violence and Repeat Violence

Injunctions for Protection Against Domestic or Repeat Violence under Florida Law

The 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
kidnapping.

The petition asks why the petitioner is in fear of future acts of violence or domestic violence. In these cases, the petitioner might make false or exaggerated accusations.

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, FL

If 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

Tampa Domestic Violence Protective Order Restraining Order Repeat Violence Attorney

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:

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).

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:

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).

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:

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?

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.

Tampa Criminal Attorney- Contact Us

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