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: February, 2013

Florida v. Harris, SC11-817: United States Supreme Court Reverses Florida Supreme Court in Case Involving Drug Detection Dog at Traffic Stop

For those Florida criminal defense attorneys who handle a lot of drug cases, here is an opinion worth reading.  In a relatively short (14 page) opinion, the United States Supreme Court unanimously reversed the Florida Supreme Court in Florida v. Harris, No. SC11-817.  Generally, the overall holding is favorable to the State because the Court held that the State is NOT required to “present an exhaustive set of records, including a log of the dog’s performance in the field, to establish the dog’s reliability,” Harris, slip op., pg. 1, as the Florida Supreme Court had required.   However, in so holding, the US Supreme Court really slapped down the Florida Supreme Court.  For some reason, I really love to see the Florida Supreme Court get reversed.

In its analysis, the Court reasoned that the hypertechnical requirements of the Florida Supreme Court opinion were completely contrary to the common-sense  approach to a determination of probable cause, which should be based on the totality of the circumstances.  Harris, slip op., pg. 4.  The Court stated,

. . . The Florida Supreme Court flouted this established approach to determining probable cause.  To assess the reliability of a drug-detection dog, the court created a strict evidentiary checklist, whose every item the State must tick off.  Most prominently, an alert cannot establish probable cause under the Florida court’s decision unless the State introduces comprehensive documentation of the dog’s prior “hits” and “misses” in the field. (One wonders how the court would apply its test to a rookie dog.)  No matter how much other proof the State offers of the dog’s reliability, the absent field performance records will preclude a finding of probable cause.  That is the antithesis of a totality-of-the-circumstances analysis.  It is, indeed, the very thing we criticized in [Illinois v.] Gates when we overhauled our method for assessing the trustworthiness of an informant’s tip.  A gap as to any one matter, we explained, should not sink the State’s case; rather, that“deficiency . . . may be compensated for, in determining the overall reliability of a tip, by a strong showing as to . . . other indicia of reliability.” Id., at 233.  So too here, a finding of a drug-detection dog’s reliability cannot depend on the State’s satisfaction of multiple, independent evidentiary requirements.  No more for dogs than for human informants is such an inflexible checklist the way to prove reliability, and thus establish probable cause.
Making matters worse, the decision below treats records of a dog’s field performance as the gold standard in evidence, when in most cases they have relatively limited import.  Errors may abound in such records.  If a dog on patrol fails to alert to a car containing drugs, the mistake usually will go undetected because the officer will not initiate a search.  Field data thus may not capture a dog’s false negatives.  Conversely (and more relevant here), if the dog alerts to a car in which the officer finds no narcotics, the dog may not have made a mistake at all.  The dog may have detected substances that were too well hidden or present in quantities too small for the officer to locate.  Or the dog may have smelled the residual odor of drugs previously in the vehicle or on the driver’s person.  Field data thus may markedly overstate a dog’s real false positives.  By contrast, those inaccuracies—in either direction—do not taint records of a dog’s performance in standard training and certification settings.  There, the designers of an assessment know where drugs are hidden and where they are not—and so where a dog should alert and where he should not.  The better measure of a dog’s reliability thus comes away from the field, in controlled testing environments.

Harris, slip op. pgs. 5-8.

Now, I admit that the above language is pretty helpful to the State.  However, the Court continued, provided some helpful ammunition to the criminal defense and criminal appeals lawyers out there, too.  The Court noted that a defendant should have the opportunity to “challenge such evidence of a dog’s reliability, whether by cross-examining the testifying officer or by introducing his own fact or expert witnesses.”  Harris, slip op., pg. 8.  For example, a defendant “may contest the adequacy of a certification or training program, perhaps asserting that its standards are too lax or its methods faulty.”  Id.  In addition, a defendant may “examine how the dog (or handler) performed in the assessments made in those settings.”  Id.  After all, “evidence of the dog’s (or handler’s) history in the field, although susceptible to the kind of misinterpretation we have discussed, may sometimes be relevant.”  Id.  Finally, the Court noted that even if a dog is presumed generally reliable, “circumstances surrounding a particular alert may undermine the case for probable cause—if, say, the officer cued the dog (consciously or not), or if the team was working under unfamiliar conditions.”  Id. at pg. 9.

Unfortunately for Harris, his trial attorney failed to challenge any aspect of the drug dog’s training in the trial court.  See Id. at pg. 10.  As a result, the Court refused to consider his arguments raised in that regard for the first time on appeal.  See Id. 

Apart from the discussion of probable cause, this opinion also has good lesson for all the criminal defense attorneys out there: don’t forget to object and/or challenge the State’s evidence at every opportunity.  Even if you don’t know how useful or successful your challenges will be, once a case goes up on appeal, anything, and everything, may be fair game.  Failing to challenge evidence at the trial level (or failing to object) often precludes the right to appellate review, as noted by the Court in Harris.

Florida Legislature Considering Amendment to Florida Statute 817.568 (Criminal Use of Personal Identification Information)

Florida’s white collar criminal defense and criminal appeals attorneys might be interested in a bill that’s currently being considered by the Florida House of Representatives.  HB 691, which was taken up by the Criminal Justice Subcommittee as of February 20, 2013, adds some new, and very important language (in bold):

(2)(a)  Any person who willfully and without authorization fraudulently uses, or possesses with intent to fraudulently use, personal identification information concerning an individual without first obtaining that individual’s consent, commits the offense of fraudulent use of personal identification information, which is a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.  Unless the person flees or another circumstance makes it impracticable, a law enforcement officer shall, before any arrest for an offense under this subsection, afford the person an opportunity to explain his or her possession or use of personal identification information and how the use or possession is not willful and without authorization.  A person may not be convicted of an offense under this subsection if the law enforcement officer did not comply with this procedure, or if it appears at trial that the explanation that the person gave is true and, if believed by the officer at the time, would have indicated that there was no violation.

I don’t know about you, but I find that absolute defense language highlighted above very interesting.  A similar version of the bill is currently in the Florida Senate (SB 840).  Unfortunately, the Senate version does not contain the highlighted language contained in the House version.  I guess we’ll just have to wait and see which version of the amendment, if either, passes.

This is News??

Have any of you read the latest copy of the Florida Bar news (February 15)?  The title for one of the articles on the front page reads, “Study Suggests Conflict Attorneys Are Underpaid.”  Shocking!  (You can check out my previous post showing exactly how underpaid criminal conflict attorneys are by clicking here).

Sarcasm aside, I am hopeful that this article means that there may be some movement on this issue in the Florida legislature in the future.  I know, I know, it may be too much to hope for, but you never know . . . Wouldn’t it be great for Florida’s criminal defense and criminal appeals attorneys to be able to earn a realistic fee for accepting appointments in criminal cases again?

Florida Supreme Court Affirms Conviction Despite Improper Comments from Prosecutor, and Fourth DCA Reverses One of its Own on Issue of Pre-Trial DNA Testing Procedures

The Florida Supreme Court and Fourth DCA have both issued interesting opinions in the last week, so I though I’d pass them along.

First, in Gary Fontaine Bell v. State, SC10-916, the Court examined a series of statements made by the prosecutor.  Although the analysis of each statement is a bit tedious, the case is good to read because it illustrates an important lesson for criminal defense and criminal appeals attorneys alike: to preserve an issue for appeal, you have to object, and renew your objections at the appropriate time.  In Bell, athough the court found that several statements were improper, the Supreme Court nevertheless affirmed Bell’s conviction for lewd and lascivious molestation on a victim under 12 by a person 18 or older because Bell failed to preserve the issues for appeal, and because the comments did not constitute fundamental error.  See Bell, SC10-916, slip op., pgs. 16-18.  The statements examined by the Court include:

(1) During closing argument, with regard to the age of the victim, the prosecutor stated, “so without any evidence contradicting [the State’s evidence,] the State has proven to you beyond a reasonable doubt the first element of the charge.”  The Court found this statement did not constitute an improper comment on Bell’s right to remain silent because the statement concerned an issue that witnesses other than Bell could have refuted.  Also, the Court found no improper burden shifting.  See Bell, SC10-916, slip op., pgs. 2, 11-12.

(2) During voir dire, the prosecutor asked questions including “[n]ow, would anyone just right off the bat tell me that if all I have is a [sic] word of a child to evaluate as the evidence, that that’s not enough; I would need more?”; “[w]ithout hearing any other thing about the case, could you tell me right now that the testimony of a child alone would be insufficient for you?”; and, “if you heard the testimony of a child telling what happened and there were no other eyewitnesses, would that not be enough for you under any circumstances?”  After determining that Bell failed to preserve the issues for appellate review because he failed to renew his objection prior to the jury being sworn, the Court also found that the statements did not comment on Bell’s right to remain silent.  See Bell, SC10-916, slip op., pgs. 3-4, 19-20.

(3) During the initial portion of closing argument, the prosecutor stated “so without any evidence contradicting that the State has proven to you beyond a reasonable doubt the first element of the charge;” “in cases like this, it is always a one-person’s word against another;” “it is the word of [the victim] against the plea of not guilty that Gary Bell has entered;” “[s]o if you are looking for a reason to not believe [the victim] there isn’t one.  Because there is no evidence that she would have made this up at this particular time under these particular circumstances;” and, “[t]his is also a very important day for [the victim], her family and the people of the State of Florida who I represent.”  The Court found such statements either impermissibly commented on Bell’s right to remain silent, or otherwise implied that Bell had a burden of proof.  See Bell, SC10-916, slip op., pgs. 5, 6, 7, 13, 14.

(4) In the rebuttal portion of closing argument, the prosecutor stated, “Well, did you hear any testimony, any evidence that supports that statement?”  The Court found that such statement was proper, as it was an invited response.  See Bell, SC10-916, slip op. pgs. 8, 16.

Finally, in Esdras Cardona v. State, 4D09-3636, the Fourth District held that the trial court erred in not holding an evidentiary hearing before ordering specific procedures for DNA testing.  The most interesting thing of the opinion?  The trial judge who was reversed is Judge Gerber-who now sits on the Fourth DCA.

Happy reading!

Casey Marie Anthony v. State, No. 5D11-2357: Affirmed in Part, Reversed In Part, But Will it Help Her?

Florida’s 5th DCA recently released its opinion in Casey Marie Anthony v. State, No. 5D11-2357.  In the criminal appeal, the Court reversed two of Anthony’s four misdemeanor convictions for providing false information to police officers, finding that the convictions for all four violate double jeopardy.  See Anthony, slip op., pgs. 11-15.  However, the Court also affirmed the trial court’s denial of Anthony’s motion to suppress the statements made to law enforcement during the investigation, finding that no Miranda warnings were required because Anthony was not in custody for purposes of Miranda.  See Anthony, slip op. pgs. 8-11.  If you happen to have any cases involving Miranda or double jeopardy issues, you should take a few minutes to read the 15 page opinion.

This is a good win for the criminal appeals team.  While the reversal will no doubt be of some help to Anthony, it’s unfortunate that the opinion has gotten little to no press coverage.  So in the end, how does the reversal really help Anthony, practically speaking?  Unless you live under a rock, you know that the press skewered Anthony during the pre-trial and trial proceedings.  But now that the trial is over, who is there to announce the good news that two of her four misdemeanor convictions were reversed?  Nobody.

Regardless of your opinion of the verdict, there is little dispute that Anthony’s case is just the latest example of what is wrong with today’s press coverage of criminal cases.  Now that Anthony has had her day in court, what does she have to show for it?  A bankruptcy petition.


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