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Don’t Post Evidence on Facebook!!!

By: Adam L. Bantner, II

Board Certified Criminal Trial Law Attorney

It should go without saying, but you can do your criminal defense attorney a huge “solid” by not posted evidence of a crime on your Facebook or other social media account. While it didn’t directly address social media posts, an opinion from the Third District Court of Appeal in Florida reveals how posts can be used against a criminal defendant.

Facebook Post Links Firearm to Defendant

In Barnes v. State, 44 Fla. L. Weekly D2283a (Fla. 3d DCA 2019), Barnes was convicted by a jury of three counts of attempted first-degree murder. The evidence against Barnes consisted of eyewitness testimony from each of the victims that Barnes was the person who shot them. Each of them also testified that the weapon used was a black, semi-automatic handgun with an extended clip. A similar weapon, and perhaps the same weapon, was recovered from another person, George Avila.

Without more, the weapon is likely not admissible in trial because there is nothing to link Barnes to the firearm. However, this is where Facebook comes into play.

The State, after having obtained a warrant to search his Facebook account, found pictures of Barnes with a similar weapon tucked into his pants. The State was also able to prove that the picture was posted relatively close in time to the alleged crimes. As such, the State now possessed evidence that Barnes possessed a similar, if not the same, firearm as the one used in the crime close in time to the alleged crime. That coupled with the eyewitness testimony was more than enough to convict Barnes.

Other Examples of Foolish Posts

A quick Google or DuckDuckGo search will reveal numerous other incidents of foolish posts by criminal defendants. Some of our favorites are:

Posting location and work schedule when you have a warrant out for arrest.

Siphoning gasoline from a police vehicle and sharing said crime on Facebook.

Any my personal favorites, don’t “Like” the police department’s Facebook page if you are fleeing from said law enforcement agency.

Call Us For Your Free Consultation

While we hope that neither you nor a loved one is on the wrong side of the law from an ill-fated social media post, if you are, give us a call at 813.397.3965 for your free consultation with an expert criminal defense lawyer. We serve all of Hillsborough County and will travel to Polk, Pasco, Manatee, and Pinellas counties as well.

The Bantner Firm

Valrico Law Group

Criminal Justice Legislative Update

Updates to Florida Criminal Justice Laws From 2019 Legislative Session

By: Adam L. Bantner, II

Board Certified Criminal Trial Attorney

The 2019 Florida legislative session saw some significant changes to the criminal statutes. Some of these changes are significant (removing the requirement for a Youthful Offender sentence that a defendant be sentenced prior to their 21st birthday) while some make you wonder if it was really necessary (removing 1-year minimum mandatory for sale and distribution of horse meat).

Regardless, the reforms are mostly positive for those who practice in the world of criminal defense. I attempt to lay out most of the changes below.

Harm to Police Animals

SB 96: Increases the penalty from a third-degree felony to a second-degree felony for any person who intentionally and knowingly, without lawful cause or justification, causes great bodily harm, permanent disability, or death to, or uses a deadly weapon upon, a police canine dog, fire canine dog, SAR canine dog, or police horse.

Child-like Sex Dolls

SB 160: Makes it a third-degree felony to sell, distribute or possess with intent to sell or distribute a child-like sex doll. Makes possession of such a doll a first-degree misdemeanor.

Expansion of Eligibility for Veterans’ Court

SB 910: Adds individuals who are current or former United States Department of Defense contractors; and individuals who are current or former military members of a foreign allied country to those eligible Veterans’ Court Treatment Program

Texting and Driving

HB 107: Make texting and driving a primary offense, i.e., you can be pulled over for it. It also makes it offense to use a phone in any hand-held manner in a school or construction zone.

Many Changes in One Bill

HB 7125: An omnibus criminal justice bill that makes many changes. Some of the highlights are:

  • Reduces the driver’s license suspension for drug offense convictions from 1 year to 6 months. Suspension can be shortened upon drug abuse evaluation and completion of any recommended treatment. Additional, court “upon a finding of compelling circumstances,” may direct DHSMV to issue a business purpose only license.
  • A third conviction of Driving on a Suspended/Revoked License now will require at least 10 days in jail.
  • Removed minimum mandatory sentence of 1 year for offenses related to the sale and distribution of horse meat.
  • Raises the felony threshold for theft of food and lodging services from $300 to $1,000.
  • Removes driver’s license suspension penalty for offenses related to selling to and possession of alcohol by persons under 21 years of age.
  • Reduces possession of distilling materials from a felony to a misdemeanor.
  • Reduces penalties for possession of moonshine.
  • Increases the threshold for felony grand theft from $300 to $750.
  • Reduces from a felony to a misdemeanor the keeping of a gambling house.
  • Increases minimum mandatory weight thresholds for trafficking in hydrocodone
  • Allowing for expunction of charges dismissed due to lawful self-defense.
  • Allowing for automatic early termination of probation or conversion to administrative probation upon completion of at least half of term and all the special conditions of probation.
  • Creation of an alternative sanction program for first-time technical violators of probation provided certain eligibility requirements are met.
  • Creation of a community-based court program for certain misdemeanor offenses.
  • Allows persons to be sentenced as a youthful offender, so long as they otherwise qualify, so long as the crime was committed before they turned 21 years of age (prior requirement was to be sentenced before turning 21 years of age).
  • Deletes mandatory direct-file of certain juvenile offenders.

Do I Have to Do Field Sobriety Exercises?

You Can Say, “No,” to Field Sobriety Exercises

This is the short version of the standard FSEs. The officer will be looking for much than the simple completion of these exercises.

By: Adam L. Bantner, II

Board Certified Criminal Trial Law Attorney

As a criminal defense and DUI attorney, one thing is certain to occur over and over again at social gatherings; someone will ask me whether they should take a breath test and should they perform field sobriety exercises if they’ve been pulled over by law enforcement and suspected of committing a DUI. While the scope of this post does not include an answer to the first part (however, short answer is don’t give them your breath, but there are many, many factors you should consider prior to making that decision), I will attempt to explain the law and response that will best help you and your attorney as you defend your DUI.

The Law of Field Sobriety Exercises in Florida

First, the law on this issue is by no means clear and settled throughout the State. In fact, the law sometimes seems to vary between courtrooms in the same County in the same Circuit! However, there seems to be some consistency in general principles in Hillsborough County.

First, if an officer does not possess reasonable suspicion of impairment, they cannot request a suspect to perform field sobriety exercises. If an officer possesses reasonable suspicion of impairment, then can request performance of field sobriety exercises but they cannot compel performance. Where an officer possesses probable cause of driving under the influence, an officer can compel performance of field sobriety exercises. State v. Carney, 14 Fla. L. Weekly Supp. 287a (Hillsborough Cty. Ct., 13th Cir., December 7, 2006). The Court in State v. McFarland, FLWSUPP 2702MCFA, (Fla. Broward Cty. Ct. 2017), affirmed by State v. McFarland, 26 Fla. L. Weekly Supp. 546a (Fla. 11th Cir. Ct. 2018), agreed with the Carney analysis.

Next, for the purpose of this article, you don’t need to concern yourself with whether you believe the officer possessed reasonable suspicion of DUI, probably cause of DUI, or neither. These are legal conclusions that law enforcement, attorneys, and judges can and do get wrong. What you do need to know is that a refusal to perform the requested exercises will only be used against you in court if the officer possesses at least probable cause of DUI. If the officer possesses any level of suspicion less than probable cause, the request to perform the exercises is just that, a voluntary, consequence-free choice with the ability to say, “no.”

Now, should you say “no”?

Don’t Do The FSEs!!!

There are a myriad of reasons why one should not perform the field sobriety exercises; we are just going to focus on a couple of them.

One, if the officer is asking you to do the exercises, there is little to no chance that your performance on the exercises will dispel any suspicion of DUI by the officer. At this point in the investigation, he is in the evidence gathering phase and he is looking to build his or her case against you. In sum, you’re taking a ride to county jail regardless of your performance.

Second, you are, most likely, not going to do well on the exercises. The first test, the Horizontal Gaze Nystagmus, or “HGN,” is the most reliable by the scientific evidence but also the hardest to independently verify. Any recorded video will not show your performance. As such, the officer’s report of your performance is almost unassailable if he performed it to standards. Also, there are other factors that can cause nystagmus in addition to consumption of alcohol (fatigue, allergies, etc.).

The second and third tests, the Walk and Turn and One-Leg Stand, are also problematic. For most of the public, any performance of these exercises are likely your first attempts at either. Did you hit a homerun in your first little league at bat? Most likely not. Furthermore, the officer is not looking for simple completion. He is looking for clues that indicate impairment of which you will not be aware. For example, if you walk the line without falling, you may think you passed. However, if you raised your arms more than six inches, you missed heel-to-toe by more than an inch, you turned improperly, or you started early, you showed impairment. Also, you will be performing these, most likely, late at night, roadside, and under the stress of an impending arrest. Again, you are not likely to do well.

All this leads to the nearly inescapable conclusion that the rewards of a good performance are greatly outweighed by the dangers of poor performance. So when the officer asks, “Will you take these tests?” politely decline citing this article and your fears that the stress of the situation would cause you to perform poorly.

Call Hillsborough DUI Lawyer Today!

After the officer arrests you (because his mind was made up to do so the moment he made the request), bond out of jail and give us a call. We’d love to help! 813.397.3965.

How Do Trial Courts Still Get Restitution Wrong?

By: Adam L. Bantner, II

Board Certified Criminal Trial Attorney

Somehow, Florida courts continue to get restitution wrong. My guess is that this stems from the fact that judges will typically rotate amongst the various benches, i.e, criminal, civil, family, probate, traffic, etc., and that various legal principles will bleed into an area of the law where it simply does not belong.

For example, in courts of equity, the judge has the power to do what it takes to make a situation fair. Of course, they are constrained by various statutes and case law, but they typically will have a lot of discretion to make a situation “right.” However, with regards to any amount of restitution owed to a victim, the law is pretty clear.

The Restitution Statute, Fla. Stat. 775.089

Fla. Stat. 775.089 states: “…the defendant to make restitution to the victim for: 1. Damage or loss caused directly or indirectly by the defendant’s offense; and 2. Damage or loss related to the defendant’s criminal episode.

This language has been interpreted as, typically, setting fair market value as the appropriate measure of restitution. State v. Hawthorne, 573 So. 2d 330, 333 (Fla. 1991). Additionally, restitution is not intended to provide a victim with a windfall. Rodriguez v. State, 956 So. 2d 1226, 1232 (Fla. 4th DCA 2007) Therefore, restitution may not exceed the damage caused by the defendant’s criminal conduct.

Restitution Should Not be Used to Pay Off a Loan Balance

With the aforementioned law of criminal restitution mentioned above, the heading for this section should be self-explanatory. However, a Duval County trial judge held that a criminal defendant was liable to the victim for the entire balance of her vehicle loan and not just the fair market value of her vehicle. As I indicated in the opening, I think the judge did what she believed was fair and, unfortunately, failed to follow the law. After all, who wants to continue making payments on a totaled vehicle? Fortunately, though, the First DCA corrected that error in Tolbert v. State, No. 1D17-3240 (Fla. 1st DCA 2019).

Tolbert was convicted of stealing his ex-girlfriend’s vehicle. Prior to his arrest, he totaled the vehicle fleeing from law enforcement. The victim bought the vehicle for $14,000 and still owed over $14,000 at the time of the loss. Insurance paid off approximately $3,000 of the balance. Testimony at the restitution hearing set the value of the vehicle $6,100. However, the trial court set the restitution amount at almost $12,000 (the difference between loan balance and insurance payout).

This “solution” would have gave the victim a windfall that is clearly not contemplated by the statute. As the concurrence so ably put it, “And if the victim lost a $6,000 car and got $6,000 in restitution, she could acquire another $6,000 car. That would leave the victim just where she began: with a $6,000 car and a $12,000 loan. In other words, the restitution award would cover her “damage or loss.” If, on the other hand, the victim got the value of her car plus the unsecured portion of her loan (roughly $12,000) and bought a $6,000 car, she would come out $6,000 ahead.”

The law in this area is fairly well-settled and I’m amazed that trial judges still get this wrong. Fortunately, Tolbert’s able attorneys and the First DCA were able to fix this mistake.

Tampa Restitution Attorney

If you find yourself dealing with restitution as part of your criminal case, give The Bantner Firm a call today! We offer free consultations with board certified criminal trial law attorney Adam Bantner. 813.397.3965

We pray that you never need us, but we’re here for you when you do!

You Can Tell a Cop “No” (In Some Circumstances)

By: Adam L. Bantner, II

Board Certified Criminal Trial Attorney

While it’s not always a smart move, legally speaking, you don’t always have to obey the commands of a law enforcement officer. Whether to exercise this right, as with many things, is a discretionary choice and, in most circumstances, it is wise to simply comply.

However, law enforcement sometimes will make unreasonable and illegal requests. In such circumstances, it is perfectly legal to simply walk away and to ignore those commands. Now, that may still get you arrested and you may still have to the best attorney you can to get you out of the pickle (we recommend the The Bantner Firm), but you should eventually be vindicated in your actions.

Resisting an Officer With Violence

Let’s get the easy one out of the way first; it is almost never legal to resist an officer with violence. If an officer is engaged in any legal duty at all, you cannot resist that command, order, arrest, etc. with violence. Even if the arrest is illegal and not based on probably cause, you cannot resist that arrest with violence. Fla. Stat. 843.01 makes resisting with violence a third-degree felony punishable by up to five years in prison. Additionally, it goes without saying that resistance with violence will greatly enhance your chance of getting injured or killed. Just don’t do it.

Resisting an Officer Without Violence

In order to convict a defendant of resisting, obstructing, or opposing an officer without violence pursuant to Fla. Stat. 843.02 the State must prove:

  • (1) The officer was engaged in the lawful execution of a legal duty; and
  • (2) The actions of the defendant resisted, obstructed, or opposed the officer in the performance of that legal duty.

“Legal duty”, as contained in the first element above, includes “(1) serving process; (2) legally detaining a person; or (3) asking for assistance in an emergency situation, or (4) impeding officers’ undercover activities by acting as a ‘lookout’ during the commission of a criminal act.” There is a difference between an officer who is engaging in the lawful execution of a legal duty, and a police officer who is merely on the job. McCollough v. State, FLWSUPP 2612MCCU, (Fla. 10th Cir. Ct. 2017) (internal citations omitted).

McCollough v. State

You may be asking yourself why a blog post on resisting an officer without violence has a picture of a cute kid on the shoulders of her father. Well, in McCollough, the defendant was arrested for resisting without violence for refusing to take his child off of his shoulders at the direction of law enforcement.

Again, this is one of those situation where it probably would have been better to simply take the child down but, the father was perfectly within his rights to refuse to do so. Here’s why:

McCollough was exercising his court-ordered supervised visitation. The supervisors suspected McCollough was about to walk-off with his child. The supervisors alerted law enforcement and they responded to investigate a possible child abduction. However, it was quickly ascertained that an abduction was not occurring or about to occur. At that point, any legal duty of investigation had been concluded.

However, tensions were still relatively high and McCollough was in an agitated state. The officers requested that McCollough put the child down out of fear that the child would fall off his shoulders; but there wasn’t any evidence that they child was in any sort of real danger of an injury occurring. McCollough refused to put the child down and the officers then forced him to do so and arrested McCollough. Only in Polk County.

The appellate court held that “[I]f the instructions (orders) occurred after the officers were aware that no criminal activity was taking place, then Appellant was not detainable and could walk away from the officers. In other words, once any reasonable suspicion of a crime had been eliminated, there was no valid reason to detain the Appellant. At that point, the officers were merely “on the job” and not “performing a legal duty””. As such, the court ruled that the trial court should have granted the motion for judgment of acquittal and dismissed the case. It reversed and remanded the case for the conviction to be set aside and a judgment of acquittal to be entered.

Polk County Criminal Defense Attorney

If you find yourself or a loved one on the wrong side of the law, give board certified criminal trial attorney Adam L. Bantner, II a call today. You can reach us at 813.397.3965 to set up your free consultation at either our Brandon or Tampa office.

You Can’t Say That!

Atticus Finch knew how to make an effective argument. This is a scene from the legendary movie, To Kill A Mockingbird.

Impermissible Arguments by Prosecutors Lead to Reversed Convictions

By: Adam L. Bantner, II

Because the U.S. Constitution requires a criminal defendant to be presumed innocent, that a defendant receive a fair trial, and that a defendant does not have to any burden to prove his own innocence, prosecutors have to be very careful in making their arguments to the jury.

In closing argument, the attorney’s role is to “assist the jury in analyzing, evaluating and applying the evidence.” Cardona v. State, 185 So. 3d 514, 519 (Fla. 2016) (quoting U.S. v. Morris, 568 F. 2d 396, 401 (5th Cir. 1978)). Comments made during closing argument that are intended to inject emotion and fear into the jury are outside the scope of a proper closing argument. Lewis v. State, 780 So. 2d 125, 129 (Fla. 3d DCA 2001); Garron v. State, 528 So. 2d 353, 359 (Fla. 1988). It is improper for an attorney to express a personal opinion about the credibility of a witness during closing argument. Johnson v. State, 801 So. 2d 141, 142 (Fla. 4th DCA 2001) (“It is equally improper for the state to vouch for the credibility of a police officer by arguing that the jury should believe police officers solely because they are police officers.”). “It is the responsibility of the prosecutor to seek a verdict based on the evidence without indulging in appeals to sympathy, bias, passion or prejudice.” Brinson v. State, 153 So. 3d 972 (Fla. 5th DCA 2015) (quoting Edwards v. State, 428 So. 2d 357, 359 (Fla. 3d DCA 1983).

Should a prosecutor make such an argument, Courts apply the “Lopez Test” when determining whether prosecutorial comments merit a new trial. To warrant a new trial, the comments must either 1) deprive the defendant of a fair and impartial trial; 2) materially contribute to the conviction; 3) be so harmful or fundamentally tainted as to require a new trial; or 4) be so inflammatory that they might have influenced the jury to reach a more severe verdict than it would have otherwise. Spencer v. State, 645 So. 2d 377, 383 (Fla. 1994) (citing Lopez v. State, 555 So. 2d 1298, 1299 (Fla. 3d DCA 1990)).

Morell v. State, Improper Burden Shifting

In Morell v. State, 26 Fla. L. Weekly Supp. 883a (Fla. 17th Cir. Ct., 2018), Morell was charged with driving under the influence. He performed one field sobriety exercise, horizontal gaze nystagmus, but refused the other exercises and refused to provide a sample of his breath for testing.

In closing arguments, the prosecutor focused her attention almost solely on the defendant’s failure to provide the jury with additional evidence of his guilt. Her statements included:

  • … defendant failed to provide what would be the best evidence in this case.
  • … the defendant said, fine, I will choose not to give the ladies and gentlemen of the jury today the best evidence in this case, which would be his breath.
  • … the State has proven that the only lack of evidence in this case comes from the defendant refusing to provide the breath sample to you all today.

The court held that each of these statements improperly shifted the burden upon the defendant to provide evidence to the jury. As such, it amounted to fundamental error to require reversal of the conviction even without proper preservation of the errors by defense counsel.

Alou v. State, Improper Vouching and Appeal to Passions of the Jury

In another DUI case, the court reversed a conviction because a prosecutor made arguments that effected the defendant’s ability to receive a fair trial. In Alou v. State, 26 Fla. L. Weekly Supp. 869a (Fla. 11th Cir. Ct., 2018), the prosecutor improperly vouched for the credibility of a law enforcement witness and improperly appealed to the sympathies and passions of the jury.

The statements were:

  • Officer Franco is not going to misrepresent the words of this Defendant.
  • Then he almost hit a bus, a bright colored bus. Then he almost hit that bus, again. Members of the jury, what if he didn’t miss?

In this case, unlike in Morell, the defense attorney did his job by properly objecting to the offending statements and moving for a mistrial. While the court did sustain the objections, it never gave a curative instruction to the jury and it denied the motion for a mistrial.

The Circuit Court, sitting in its appellate capacity, ruled that the trial court abused its discretion in denying the motion for a mistrial. As such, the verdict was reversed and the case was remanded to the trial court for a new trial.

There’s a Right Way to Preserve a Juror Challenge

By: Adam L. Bantner, II, B.C.S.

Jury selection is the beginning of your trial. Some believe that a case can be won or lost at jury selection. While I don’t necessarily believe that a trial can be won at this stage, I certainly believe that it can be lost before the first word of testimony is delivered.

As such, if someone is taking their case to trial, whether a criminal or personal injury matter, you need an attorney skilled in trial practice and jury selection. With over 30 trials under my belt, I’ve honed my trial skills more than most attorneys.

In jury selection, we are trying to accomplish two things: 1) get rid of jurors predisposed to rule against your client, and 2) start planting the seeds of persuasion for your case. Successfully fulfilling both of these objectives is more art than science and the scope of this article is not expansive enough to cover the “how-to” on accomplishing these goals. Suffice to say, at this point, a necessary skill to get this done is getting your jurors to speak. Getting a person, who probably doesn’t want to be there in the first place, to open up about who they are, their beliefs, and their life in general, is difficult. However, it is possible and completely necessary to getting a good jury.But what do you do if you find a juror who, to you, is undesirable for service on your jury?

In any trial, counsel has unlimited “cause” challenges. A cause challenge can be utilized whenever a juror has indicated that they can’t do the job as instructed by the court and according to the law. For example, if a juror says that he/she would need to hear testimony from a criminal defendant and he/she would hold it against the defendant should he/she desire to exercise his or her right to remain silent, that juror should be stricken for cause by the court upon motion by counsel. These types of challenges are unlimited because you can’t have an unqualified juror serving on a case.

The other type is “peremptory” challenges. These can be used for any reason not forbidden by law. For example, you can’t use a peremptory against someone for simply being black, for being a woman, for being old, etc. However, if you believe that the court improperly denied a cause challenge, you can use one of your peremptory challenges on that person. Peremptory challenges are limited in number. The number is set by law depending on the type of case being tried.

However, if a judge denies both a cause and peremptory challenge to a juror, certain steps must be taken to ensure that the issue is preserved for appeal. They are relatively simple, but necessary.

First, make the challenge. You can’t appeal a denial if you never asked for the juror to be excused. If the cause challenge was denied but the court allowed you to use a peremptory challenge on that person, you must ask for an additional peremptory challenge. If you don’t, the denial of the cause challenge will not be appealable. The theory is that if the court gives you an extra peremptory to use, no harm no foul because the litigant essentially got what he or she desired anyway.

Finally, if the court denies both the cause and peremptory challenges (or just the peremptory if no cause challenge was made), you must renew the objection before the jury, as a whole, is sworn in to hear the case. Failure to renew the objection will act as a waiver of any previous objections to denials by the court for cause.

In Hernandez v. State, the Second DCA indicated that it would have reversed and remanded for a new trial had the trial lawyer properly preserved the denial of a peremptory challenge. In that case, Hernandez’s lawyer moved to remove a juror for cause because a juror had stated he would have a problem if Hernandez failed to testify. The juror later stated that he would not have a problem. As such, the Court denied the cause challenge.

The Court, improperly, also denied the peremptory challenge made by counsel. The Court unfortunately applied the “cause” standard to a “peremptory” challenge. This was error. However, counsel failed to renew the objection prior to the swearing in of the jury. As such, the District Court of Appeal had to affirm the judgment and sentence of the trial court and did not grant Hernandez a new trial.

As you can see, having a skilled trial attorney is essential to having a fair trial while also preserving any appellate issues that may arise during the trial. Adam Bantner is a board certified criminal trial law attorney in Hillsborough County. Call us today to see how we can help!

The Inevitable Discovery Doctrine

A room after a search, Russia, early 20th century. Found in the collection of the Russian State Film and Photo Archive, Krasnogorsk. (Photo by Fine Art Images/Heritage Images/Getty Images)

Generally speaking, law enforcement does not have a right to search a residence without either a search warrant or consent to search given by the owner of the residence. Any evidence obtained without a warrant or consent will have occurred in violation of the Fourth Amendment to the U.S. Constitution and said evidence will be prohibited from use by the State in its prosecution. However, there are some exceptions to the general rule.

One such exception is the inevitable discovery doctrine. It requires the prosecution to prove “by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means.” Nix v. Williams, 467 U.S. 431, 444 (1984). With regards to the potential for the evidence to have been discoverable by use of a search warrant, the State must further prove that law enforcement was in the process of obtaining a warrant. Rodriguez v. State, 187 So. 3d 841 (Fla. 2015). “We conclude that permitting warrantless searches without the prosecution demonstrating that the police were in pursuit of a warrant is not a proper application of the inevitable discovery rule. The rule cannot function to apply simply when police could have obtained a search warrant if they had taken the opportunity to pursue one, but can only apply if they actually were in pursuit of one.” Id. at 849.

O’Hare v. State

In O’Hare v. State, 44 Fla. L. Weekly D335d (Fla. 5th DCA 2019), the trial court had denied O’Hare’s Motion to Suppress by applying the inevitable discovery doctrine to the illegal search conducted by law enforcement. Essentially, O’Hare was suspected of possessing child pornography on his computer. Even though law enforcement had already developed probable cause to apply for a search warrant, they decided to conduct a “knock and talk” at his residence. When O’Hare refused to grant them access to his home, law enforcement decided to let themselves in and to begin a search. At the hearing, the State failed to prove that law enforcement was in the process of obtaining a warrant. As such, the Motion to Suppress should not have been denied based on the inevitable discovery doctrine.

However, the State also argued that the evidence would have been obtained through an independent source. The independent source rule “applies when evidence is discovered as a result of unlawful police activity but is also discovered independently through a lawful investigation that occurs either before or after the illegal activity, so long as the independent investigation itself is ‘untainted by the initial activity. State v. Ojeda, 147 So. 3d 53, 65 (Fla. 3d DCA 2014). The appellate court ruled that O’Hare’s case should be remanded to the trial court for consideration of the applicability of the independent source doctrine rather than dismissing the charges.

Call The Bantner Firm Today!

If you’ve been arrested or charged subsequent to a search of your home or business in Hillsborough County or the surrounding areas, give us a call today at 813.397.3965. As you can see, search and seizure issues can be complicated. You need a board certified criminal trial law attorney to make sure this issue is analyzed properly. Call for your free consultation now!

Don’t Drive on the Wrong Side of the Road (Duh)

On January 18, 2019, the Second DCA issued a ground-breaking opinion that driving on the wrong side of the road is sufficient probable cause for a law enforcement officer to conduct a stop of a motor vehicle. The prior statement should be read as dripping with sarcasm. However, I will issue a tip of the hat to the trial attorney who somehow convinced the trial judge that a stop on that basis was illegal and that all evidence of a DUI should be tossed. Without his or her artful lawyering, we wouldn’t have this gem of scholarly legal work.

The Facts of State v. Boston

My assumption is that Mr. Boston was facing a felony DUI for having committed prior DUIs. Normally, a DUI is handled in county court and any appeal is to the circuit court. Since this appeal was to the Second District Court of Appeal, it’s a fairly safe bet that this wasn’t Mr. Boston’s first experience in litigation over a DUI.

With that said, here are the facts from State v. Boston: “On an early spring morning in Indian Rocks Beach, Deputy Matthew Schultheis saw Mr. Boston drive northbound through an intersection’s green light and continue into the southbound side of the road. Deputy Schultheis testified that Mr. Boston drove his vehicle on the wrong side of the road for about one-hundred feet before returning to the proper lane. There were no other vehicles on the road, nor were any pedestrians present. Deputy Schultheis stopped Mr. Boston and noticed signs of impairment, including slurred speech, an unsteady gait, and the odor of alcohol. The State charged Mr. Boston with felony driving under the influence.”

Because of the felony DUI, Mr. Boston was facing up to, at least, 5 years in Florida State Prison. A typical DUI is a misdemeanor, punishable by up to 364 days in county jail if there was an accident and less jail time without an accident.

Trial Court’s Logic

The trial court did what any criminal defense lawyer would want a trial judge to do; it looked beyond whether a traffic law had been violated and looked to whether the driver’s actions were reasonable under the circumstances. The Court noted that Mr. Boston quickly corrected from being on the wrong side of the road, that no other traffic was effected, and that the traffic pattern in the area was confusing. As such, the officer shouldn’t have pulled over the driver.

Correction by the Appellate Court

Here’s an accurate statement of the law by the DCA regarding traffic stops in Florida (internal citations omitted):

“An examination of the validity of a traffic stop under the Fourth Amendment . . . requires courts to determine whether the stop was reasonable. Thus, we must assess “whether the particular officer who initiated the traffic stop had an objectively reasonable basis for making the stop. In “applying the objective test, generally the only determination to be made is whether probable cause existed for the stop in question.

The constitutional validity of a traffic stop depends on purely objective criteria. The objective test asks only whether any probable cause for the stop existed, making the subjective knowledge, motivation, or intention of the individual officer involved wholly irrelevant. H

As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. The test is whether a police officer could have stopped the vehicle for a traffic violation. On at least one occasion, we have reversed a suppression order based on a driver’s failure to stop at a stop sign, regardless of the officer’s subjective suspicions.”

As such, the only relevant inquiry is whether the driver violated a traffic law. The DCA found that Mr. Boston drove on the wrong side of the road in contravention to Fla. Stat. 316.081. Therefore, the deputy had an objective basis and probable cause to conduct the traffic stop. No evidence obtained subsequent to the stop should have been suppressed.

Some Creative Lawyering to Find the Deep Pocket

By: Adam L. Bantner, II

A well-honed skill of any successful plaintiff’s attorney is the ability to find the money, i.e., to sue the party that has the greatest ability to get your client the greatest recovery for his or her injuries. In the typical case, it is the insurance company as most individuals simply aren’t worth that much (financially speaking, of course). The median household income of an American household in 2016 was just $11,100.

Sometimes, when damages are great, insurance is relatively low, and the at-fault driver is broke, an attorney will need to get creative to find the money. A 2018 case out of Palm Beach County illustrates this need.

Seminole Lakes Homeowners’ Association, Inc. v. Esnard

Seminole Lakes is not unlike many communities in Hillsborough County like FishHawk, Riverhills, Buckhorn, etc. It’s a deed restricted community that disallowed vehicles from parking anywhere other than the owner’s driveway or garage. However, since there was a shortage of available parking, it decided to allow owners to park on the street despite a provision of Royal Palm Beach Code that prohibit any parking that impedes the flow of traffic.

The Esnards were travelling to their home one evening and came upon a section of the roadway where, because of vehicles being parked on both sides of the road, only one vehicle could pass through at any given time. While the Esnards were waiting for a vehicle to clear this section so that they may continue on their way home, they were struck in the rear by another driver, Upshur.

While Upshur was clearly negligent by causing the accident, one can only assume that he lacked sufficient insurance or resources to fully compensate the Esnards for the injuries that they suffered from the accident. As such, the Esnards’ attorney decided to sue Seminole Lakes Homeowners’ Association as well under a theory that it was negligent and proximately caused the Esnards’ damages by permitting homeowners and their guests to park on both sides of the community’s streets contrary to its governing documents. They trial judge allowed the case to proceed under this theory and the jury came back in favor of the Esnards finding Upshur 70% at fault and Seminole Lakes 30% at fault. They found the money!

Appellate Court Reverses Trial Court

However, this victory would be short-lived as the Fourth DCA ruled that a directed verdict should have been entered in favor of Seminole Lakes.
“While the vehicles parked on the side of the street caused traffic to slow or even stop, it cannot be said that this was a proximate cause of the Esnards’ damages. It is within common experience while driving on the streets of Florida to encounter traffic that is slowed or stopped for any number of reasons. The law requires every driver to maintain a safe distance from the traffic in front of them to avoid rear-end collisions…In light of all of the evidence, including the lack of any prior incidents of this nature, and the general conditions of this residential neighborhood, we hold that Upshur’s negligence was not reasonably foreseeable by Seminole Lakes, and the failure to enforce its parking rules was not the proximate cause of the Esnards’ injuries.”

As a trial attorney, you have to admire the willingness to advance such a novel legal theory in hopes of getting their clients the best recovery possible.