Florida Criminal Appeals Attorney Law

Appellate Law, Criminal Defense and Appeals and Post Conviction Relief in Florida Courts, Federal District Courts and the 11th Circuit

Month: September, 2011

Teen Charged for Fixing his Bike?!

This has got to be one of the dumbest criminal cases I have ever heard of.  The Palm Beach Post reports that a kid in the Florida panhandle needed to fix his bike, but he had no tools.  So, he thought he’d go to his local Sears store to use some tools there.  A clerk saw him, told him to leave, but the kid was so desperate to fix his bike, he returned a bit later to finish the repairs.  Can you believe the store clerk called the cops and the kid got charged with theft, trespassing, and resisting an officer without violence?  Ok, I agree with the store that the kid shouldn’t have been using the Sears tools department for his personal garage, but does that mean he deserved to be charged with 3 crimes?  This case is as bad as the cases I saw in Broward where the homeless people were actually arrested and brought to jail for being in possession of a stolen milk crate.  (I am not kidding, folks).   All I can say is that things must be really slow in the Florida panhandle!  Let’s hope a criminal defense attorney up there can step in and get those charges dismissed ASAP.

Could Law Enforcement Budget Woes Cause Trouble for the Citizens of South Florida?

Is it just me, or is anyone else in South Florida wondering what is up with South Florida law enforcement lately??

First, Officer David Britto of the Boynton Beach P.D. slipped off an electronic monitoring device and apparently fled to Brazil after being charged by federal authorities for drug offenses.  How ironic that Britto was named Boynton Beach P.D.’s Officer of the Year for 2010!  Next, Broward Deputy Sheriff Brent Woodell was charged with grand theft after stealing cash which was supposed to be used in his undercover street crime unit drug stings.  Now, yesterday, Anthony V. Mangione, the leader of  South Florida’s ICE unit (U.S. Immigrations and Customs  Enforcement) has been arrested for possession of child pornography.  How ironic that Mangione had often been the agent who appeared on news cameras to announce ICE arrests of people trafficking in child pornography!

This string of reports of police misconduct reminds me of the time I lived in New Orleans for law school from 1994-1997.  Starting in the early 1990′s, New Orleans was the murder capital of the U.S., and the New Orleans P.D. earned the reputation for being one of the most corrupt departments in the country.  A news report from 1994 tells the tale of how 9 New Orleans officers were charged by federal authorities for their roles in protecting drug dealers and large scale cocaine-dealing operations.  Police corruption was so rampant that an outsider, Chief Pennington, had to be brought in to try to reform the police department.  I could hardly believe my ears as I heard one of my criminal procedure professors, who happened to be the Appellate Chief of the US Attorney’s Office in New Orleans, tell stories about the on-going FBI investigation and how one officer, Len Davis, had been caught on tape ordering the hit on a New Orleans woman, Kim Groves, just because she filed a complaint of police brutality.  Davis and others in his gang were eventually convicted of capital murder for her death.  If you don’t believe me, just read this report about Len Davis and the 8 other officers.

Now, I’m not saying that South Florida is as bad as New Orleans was in 1994.  Thankfully, no South Florida officer has gone so far as Len Davis and his gang, ordering the hit on a citizen they were supposed to “serve and protect.”  But, has anyone stopped to think what could be the reason behind this recent string of police misconduct?   Maybe there is something to what is going on now–something more than mere coincidence?  Could it be that in these tough economic times, some police officers are struggling for money too, and that they’re doing whatever they can to supplement their income?  A PBS report indicates that the New Orleans P.D. was one of the lowest paid in the country in the early 1990′s, and that the officers often had to supplement their official income by moonlighting on private security details.  When I was a prosecutor in Broward, I knew many officers also supplemented their income by either working tons of overtime, or by moonlighting on private security details.  Broward has had its fair share of overtime scandals reported in the news.  You can read a couple of those reports from 2009 here and here.

Consider Britto and Wooddell for a minute.  Most criminal defense attorneys know that drug and theft offenses are often committed for monetary reasons.  Could it be that Britto and Wooddell were so underpaid that they decided to try to earn (or take) some on the side?  Unfortunately, I cannot think of how economics would make Mangione commit the type of crime he was supposed to be preventing, but I do know this: South Florida police agencies are struggling to meet their budgets just like every other government agency out there.  As recently as 2010, the Delray Beach P.D. faced hiring freezes and the Port Saint Lucie P.D. faced the prospect of lay-offs.   And what does it say about the Fort Lauderdale P.D.’s economic health when a wealthy private citizen like Scott Rothstein is permitted to hire the department to provide personal around-the-clock protection?

Only days ago, the Palm Beach County Commission reportedly approved Palm Beach Sheriff Ken Jenne’s budgetary requests.  Some people would say that PBSO was lucky.  But maybe we should really be saying that WE, the citizens of South Florida, are the lucky ones.

United States Supreme Court to Decide Issues in Federal Habeas, 4th Amendment Cases

The new term of the United States Supreme Court will begin in October, 2011.  The Court has already granted cert in some interesting criminal appeals cases.  Some of the cases where the Court granted cert include:

(1) MAPLES V. THOMAS, INTERIM COMMISSIONER, AL D.O.C., No. 10-63, (lower court cite 586 F.3d 879).  According to the description of the facts, this is a “capital case, where a divided Eleventh Circuit held that Alabama may execute a state inmate without any federal court review of the merits of serious constitutional claims because of a missed filing deadline that indisputably occurred through no fault of petitioner and after the State failed to take any action when court orders mailed to petitioner’s lead attorneys of record were returned to a court clerk unopened with “Return to Sender – Left Firm” written on an envelope.”  The Court will decide the issue of “whether the Eleventh Circuit properly held – in conflict with the decisions of this Court and other courts – that there was no “cause” to excuse any procedural default where petitioner was blameless for the default, the State’s own conduct contributed to the default, and petitioner’s attorneys of record were no longer functioning as his agents at the time of any default.

(2) LAFLER V. COOPER, No. 10-209, (lower court cite 376 Fed.Appx. 563).  The Court’s granting of cert states that “Anthony Cooper faced assault with intent to murder charges.  His counsel advised him to reject a plea offer based on a misunderstanding of Michigan law.  Cooper rejected the offer, and he was convicted as charged. Cooper does not assert that any error occurred at the trial.  On habeas review, the Sixth Circuit found that because there is a reasonable probability that Cooper would have accepted the plea offer had he been adequately advised, his Sixth Amendment rights were violated. The writ was conditioned on Michigan reoffering the plea agreement.  The question presented is: Is a state habeas petitioner entitled to relief where his counsel deficiently advises him to reject a favorable plea bargain but the defendant is later convicted and sentenced pursuant to a fair trial?”  The parties were also asked to brief the issue of “WHAT REMEDY, IF ANY, SHOULD BE PROVIDED FOR INEFFECTIVE ASSISTANCE OF COUNSEL DURING PLEA BARGAIN NEGOTIATIONS IF THE DEFENDANT WAS LATER CONVICTED AND SENTENCED PURSUANT TO CONSTITUTIONALLY ADEQUATE PROCEDURES?”


(4) GREENE V. FISHER, No. 10-637 (lower court cite 606 F.3d 85).  Question presented: For purposes of adjudicating a state prisoner’s petition for federal habeas relief, what is the temporal cutoff for whether a decision from this Court qualifies as “clearly established Federal law” under 28 U.S.C. § 2254(d), as amended by the Antiterrorism and Effective Death Penalty Act of 1996?”

(5) MESSERSCHMIDT V. MILLENDER: No. 10-704 (lower court cite 620 F.3d 1016).  “This Court has held that police officers who procure and execute warrants later determined invalid are entitled to qualified immunity, and evidence obtained should not be suppressed, so long as the warrant is not “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.”  United States v. Leon, 468 U.S. 897, 920, 923 (1984); Malley v. Briggs, 475 U.S. 335, 341, 344-45 (1986).  The questions presented  are, (1) Under these standards, are officers entitled to qualified immunity where they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her, and a district attorney approved the application, no factually on-point case law prohibited the search, and the alleged overbreadth in the warrant did not expand the scope of the search? (2) Should the Malley/Leon standards be reconsidered or clarified in light of lower courts’ inability to apply them in accordance with their purpose of deterring police misconduct, resulting in imposition of liability on officers for good faith conduct and improper exclusion of evidence in criminal cases?”


(7) FLORENCE V. BOARD OF CHOSEN FREEHOLDERS, No. 10-945 (lower court cite 621 F.3d 296).  Question presented: Whether the Fourth Amendment permits a jail to conduct a suspicionless strip search of every individual arrested for any minor offense no matter what the circumstances?

While all of the above cases present interesting questions, I think the opinion I am most wanting to read is that which will come in UNITED STATES V. JONES, No. 10-1259 (lower court case number 615 F.3d 544), where the Court will consider the issue of “Whether the warrantless use of a tracking device on respondent’s vehicle to monitor its movements on public streets violated the Fourth Amendment.”  The Court also directed the parties to specifically address the issue of “”WHETHER THE GOVERNMENT VIOLATED RESPONDENT’S FOURTH AMENDMENT RIGHTS BY INSTALLING THE GPS TRACKING DEVICE ON HIS VEHICLE WITHOUT A VALID WARRANT AND WITHOUT HIS CONSENT.”  I mentioned in my previous post that because the lower Federal courts are split on the issue of whether a finding of probable cause is needed to obtain cell site information, the Court might have to take up the issue sooner rather than later.  Who knew I’d be right?

Do Police Need Probable Cause to Obtain Cell Site Information?

Florida’s Fourth District Court of Appeal has published an opinion on an interesting and timely topic-whether police need probable cause to obtain prospective cell site information.  In Tracey v. State, No. 4D09-3565, the Court held that the police did not violate the Fourth Amendment when they used “real time” or prospective cell site information to track a suspect on public roads.

By way of background, footnotes 1 and 2 of the opinion discuss two tools which are related to cell phone use, and which allow law enforcement officers to track suspects: pen registers and trap and trace devices.  Under Florida law, a pen register is defined as “a device or process that records or decodes dialing, routing, addressing, or signaling information transmitted by an instrument or facility from which a wire or electronic communication is transmitted, but such information does not include the contents of any communication.” See Fla. Stat. § 934.02(20) (2009).  A “trap and trace device” is defined as “a device or process that captures the incoming electronic or other impulses that identify the originating number or other dialing, routing, addressing, or signaling information reasonably likely to identify the source of a wire or electronic communication, but such information does not include the contents of any communication.” See Fla. Stat. § 934.02(21) (2009).

Key to the Fourth District’s analysis was the fact that the police were tracking Tracey on public roads.  The Fourth relied on United States v. Knotts, 460 U.S. 276 (1983) and United States v. Karo, 468 U.S. 705, 707 (1984), where the United States Supreme Court upheld a law enforcement officer’s installation of a beeper to track a suspect’s car on public roads because the police officer did not obtain information which could not have been obtained
through visual surveillance.

Federal courts are presented with this issue much more often than the State courts.  I know from my time as a Law Clerk in the United States District Court for the Southern District of Florida that federal prosecutors routinely apply to the Court for pen registers and trap and trace devices as part of their criminal investigations.  While Judges in the Southern District require the prosecutors to show probable cause before they will allow a pen register or trap and trace to issue, it is important to note that the Federal courts do not approach the issue uniformly.

Some Federal courts have held that prospective or “real time” cell site information can only be obtained upon a showing of probable cause, contrary to the Fourth District’s holding in Tracey.  See In re APPLICATION FOR PEN REGISTER AND TRAP/TRACE DEVICE WITH CELL SITE LOCATION AUTHORITY, 396 F. Supp. 2d 747 (S.D. Tex. 2005); In re APPLICATION OF THE UNITED STATES FOR AN ORDER (1) AUTHORIZING THE USE OF A PEN REGISTER AND A TRAP AND TRACE DEVICE, 396 F. Supp. 2d 294 (E.D.N.Y. 2005).  Federal courts may also differ on the issue of whether a showing of probable cause is required to obtain historical cell site data.  See In re Application of the UNITED STATES of America FOR HISTORICAL CELL SITE DATA, 747 F. Supp. 2d 827 (S.D. Tex. 2010); In re APPLICATION OF the UNITED STATES of America FOR AN ORDER DIRECTING A PROVIDER OF ELECTRONIC COMMUNICATION SERVICE TO DISCLOSE RECORDS TO the GOVERNMENT, 620 F. 3d 304 (3rd Cir. 2010).

A note of caution: this listing of cases is only the tip of the iceberg.  Florida criminal defense attorneys will have to undertake a thorough review of the facts of their cases and the relevant caselaw to determine how to proceed if they are presented with an issue regarding their client’s cell phone data.  While the Fourth District’s opinion in Tracey gives law enforcement the upper hand in some respects, Florida criminal defense attorneys must keep in mind that Florida courts are bound to follow Fourth Amendment analysis as enunciated by the United States Supreme Court.  See Rolling v. State, 695 So. 2d 278, 297 n. 10 (Fla. 1997); Fla. Const. art. I, sec. 12.  Given the different approaches being taken by the Federal courts, perhaps the United States Supreme Court will have the opportunity to address the issue sooner rather than later.  And if the Court does find that probable cause is required to obtain these types of cell phone information, that would mean a victory for the defense!

Marrero v. State: The State Must Prove Specific Monetary Amount of Damage to Convict on Charge of Felony Criminal Mischief

In Marrero v. State, No. SC09-2390, Leonardo Marrero had been charged with criminal mischief.  At trial, the State failed to prove the specific amount of damages, prompting Marrero to raise a motion for judgment of acquittal.  The trial court reserved ruling on the motion, and the case went to the jury.  After the jury asked the court whether it could find Marrero guilty absent proof of a specific monetary amount of damages, the trial court instructed the jury according to the standard instructions applicable to criminal theft.  The jury convicted Marrero of felony criminal mischief based upon a finding that the property was valued at $1,000.00 or more.  The trial judge thereafter encouraged Marrero to file a motion for new trial, noting her discomfort at the fact that the State had failed to prove the amount of damages.  On appeal, the Third District Court of Appeal affirmed Marrero’s conviction for felony criminal mischief, reasoning that “a trial court may conclude that certain repairs are so self-evident that the fact-finder could conclude based on life experience that the statutory damage threshold has been met.” (quoting T.B.S. v. State, 935 So. 2d 98, 99 (Fla. 2d DCA 2006)).

In its opinion issued on September 15, 2011, the Florida Supreme Court reversed the Third District’s application of the “life experience” exception.  After reasoning that the State has the burden of proof as to each element of the crime, and that the amount of damage is but one element of felony criminal mischief, the Court next turned its attention to the “life experience” exception.  The Court observed that application of the of the “life experience” exception would be problematic because the “life experience” of one jury member necessarily differs widely from the “life experience” of any other jury member.  The Court also noted that the Third District erred in extending the “life experience” exception to Marrero’s criminal mischief case because the exception had only previously been applied to criminal theft cases.  Ultimately, the Court reversed Marrero’s conviction for felony criminal mischief, and remanded for the trial court to enter a judgment for misdemeanor criminal mischief.

After first reading this opinion, I thought it was rather unremarkable.  In my view, it is so obvious that the State has the burden of proving beyond a reasonable doubt every element of a criminal offense that the Court should hardly have to waste time repeating that proposition.  But then, the more I thought about this case, the more irritated I became.  Why is it that several of Florida’s District Courts of Appeal would discard such a basic principle of our criminal justice system?  Why allow prosecutors to avoid their constitutional duties?  Unfortunately, I don’t have the answers to those questions.  All I can say is that at least the right decision was made for Leonard Marrero, and that the next time this happens to someone else, this Florida criminal appeals attorney will be ready to take up the issue.


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