Articles Posted in Federal Criminal Defense

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IMG_6709-2-194x300SEARCHES

100 ‘most asked ‘ questions

CAN THE POLICE LOOK INTO MY YARD?

Yes.

The police can look into your yard with binoculars, from airplanes, from a neighbor’s yard, from anywhere.

If an officer is lawfully in a place from which he can view your home or yard it is with the Plainview exception to the search warrant requirement.

Looking into your yard can also mean examining your trash if it is put out for trash pickup.

You do not have any expectation of privacy in any garbage which is placed in a garbage container and left for pick up. That means your trash can be pulled and examined by police.

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IMG_6709-2-194x300SEARCHES

100 ‘most asked ‘ questions

HOW DO THE POLICE OBTAIN A SEARCH WARANT?

To obtain a search warrant a police officer has to swear under oath, in a written affidavit, that he has probable cause to believe that the fruits or instrumentalities of a criminal act are in a certain place.   He has to have evidence, not just a “hunch”.

A search warrant closely defines where the police can go to seize the property and what the police can take.

 

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IMG_6709-2-194x300SEARCHES

100 ‘most asked ‘ questions

CAN THE POLICE ENTER MY HOUSE?

No.

Only with a warrant or “exigent” circumstances such as: they are chasing you, they get an emergency call that someone is being beaten or shot, a fire emergency.

You have a heightened expectation of privacy in your home.  Therefore the police must get a search warrant before they can enter your home, or have a real good reason to tell the judge.

What is a home?

The law protects persons:  not places.  So what is in your mind is determinative.

Your home can be anywhere you feel like home:  at a hotel room, as an overnight guest, in your room in a rooming house.  It is always an open issue and an arguable question:  like a snail who carries his home on his back:  think home.

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IMG_6709-2-194x300SEARCHES

100 ‘most asked ‘ questions

CAN THE POLICE SEARCH ME?

They CAN search you ONLY if…

1.  You agree to the search.

Your consent must be freely and voluntarily given, and not the product of threats, intimidation, force, or the threatened use of force.

2.  For “Officer Safety”

They can search you for weapons only IF the officer has a good reason to believe you are a threat to his personal safety AND ONLY AFTER you are lawfully stopped or detained.

  1. After an arrest.

If a cop searches you without permission it is illegal, unless they have legal cause to search you.  And that is for a judge to decide….later.

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IMG_6709-2-194x300UNDER 21CROWD

100 ‘most asked ‘ questions

IF I’M UNDERAGE AND ALCOHOL IS SERVED DO I GET ARRESTED?

Yes.

It is illegal for any person to sell, serve, or permit the serving of alcoholic beverages to a minor.  The presence of alcoholic beverages and minors (under 21) in the same room gives rise to probable cause to make an arrest.

All the prosecutor has to prove is possession, either constructive, or actual.

The only exception is if you are under 21 and working in an establishment that serves alcohol: you can serve it.

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IMG_6709-2-194x300DRUG BUSTS

100 ‘most asked ‘ questions

WHAT IS TRAFFICKING?

Possession with the intent to sell or deliver any illegal drug (usually more than a personal use amount) or controlled substance is trafficking.

It commonly is understood to mean you have enough of the ‘stuff’ to be “in the business”, and a transfer to someone.   But, depending on what it is, and where you live, you can be a trafficker by giving away one pill.

Trafficking begins at 5 grams for federal law.  Some States: 28 grams.

If you knowingly sell, buy, deliver (giving away a pill is a delivery) a controlled substance (anything illegal, anything that requires a prescription from a doctor), you can be convicted of trafficking.

Ever ‘borrow’ a sleeping pill?  Pain medication?  Give it to someone?    Re-read the definition of trafficking: you are a trafficker.   Scary stuff, huh?

 

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IMG_6709-2-194x300DRUG BUSTS

100 ‘most asked ‘ questions

WHAT IS CONSTRUCTIVE POSSESSION?

You can be charged with possession of a controlled substance under the constructive possession theory.

Constructive possession means that although the controlled substance is not on your person or within your immediate vicinity, the contraband is in a place over which you have control.

The state must prove: 1) control over the place 2) that you have actual knowledge it is there 3) that you can exercise dominion and exclude others from possession.

Constructive possession can be charged to one person or more than one person, if it can be proven that everyone had equal or shared possession, knowledge and control.

 

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IMG_6709-2-194x300CRIMES

50 ‘most charged’ crimes defined

BATTERY

A battery is an unlawful touching.

The state must prove:

  • The defendant intentionally touched or struck the victim against his/her will.
  • A battery may become a felony when the touching causes serious bodily harm.

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us-supreme-court-300x225What Do I Do After I’m Arrested In Miami Florida?

This three-part series title: What Do I Do After I Am Arrested in Miami , is a complete run through of the criminal court processes from arrest through final disposition of a Miami criminal case.  This Article is Part Three of a Three Part Series that begins with the final disposition of your criminal case filed by the Miami State Attorney’s Office case.  Please also see parts two and three in this series regarding Miami Criminal Cases and processes.

Final Disposition of Your Case:

At some point, you will need to decide whether you want to resolve your case by agreement with the state, to ‘plead open’ to the mercy of the Court, or to proceed to trial.

To resolve your case by agreement with the State Attorney’s Office, your attorney and the Assistant State Attorney, assigned to prosecute your case, must come to a complete agreement regarding all of the terms of an agreement for all of your pending charges.  The court can accept or reject the terms of the agreement but cannot modify the terms without your advance consent.

If you decide to ‘plead open’ to the mercy of the Court after consulting with your attorney, the judge will decide what sentence will be imposed after considering your ‘Criminal Punishment Code Score Sheet’, which lists your offenses in severity and assigns points for those offenses.  If you decide to go to trial, you and your attorney should have some legal defense and be otherwise fully prepared.  The fact that the State’s case against you is very weak is a defense in itself.  Generally, if you do not have a defense that will present well in Court, you should consider another option.  There is nothing worse in your case than going to trial unprepared, with little or no defense.

Sentencing Issues and The Criminal Punishment Code:

The Criminal Punishment Code Score Sheet is like a report card that the judge reviews at the time of sentencing.  The score sheet tabulates a specific number of points per offense scored at the time of sentencing set by Florida statute in consideration of the severity of the offense or violation.  If your total combined score is less than or equal to 44 points, the judge can impose a non-state prison sanction which could mean, county jail time of one year or less, house arrest, probation, a fine, payment of Court costs, or even no punishment at all.  If total points are greater than 44 points, the Court will impose mandatory state prison time unless the Court finds both a legal reason to downward depart and is willing to downward depart from the minimum prison sentence set by the criminal punishment code.  A downward departure sentence is a sentence below the minimum permissible sentence based upon a legally permissible exception in sentencing laws.  The judge does not have to grant a bonafide downward departure motion and it is completely in the Court’s discretion to disregard it under the law.  Your attorney can assist you in deciding what course of action is best depending on your charges and other factors unique to your case.  No two cases are the same.

Hiring the Right Attorney:

Consulting with an attorney on your case gives you a chance to interview the attorney to determine if he or she is the right attorney to represent you in your case.  You should feel comfortable with the attorney that you hire and confident that he or she will work diligently in preparing the best defense possible for you.  You will know when you have found the right attorney for your case.  Make sure that you ask a lot of questions during your consultation and during the pendency of your case.  Your attorney cannot prepare a proper defense for you without your assistance.  You are the most valuable asset in the defense case.

This article by Miami Federal Criminal Defense Lawyer Ralph S. Behr is for informational purposes only and should not be construed as constituting legal advice.  You should consult with your attorney to determine the best course of action to take on your case.  For consultation regarding the specific facts of your case and arrest please contact Miami Criminal Defense Lawyer Ralph S. Behr.

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GovermentWhat Do I Do After I’m  Arrested  In Miami  Florida?

This three part series: What Do I Do After I Am Arrested in Miami, is a complete run through of the criminal court processes from arrest through final disposition of a Miami criminal case.  This Article is Part Two of a Three Part Series that begins with the Miami State Attorney’s Office case filing decision.  Please also see parts one and three.

Case  Filing  Decision:

The State Attorney’s Office will generally begin to review the case filing package on your case within 2-weeks after your arrest and make a filing decision within 21 days of your arrest, if you are in custody.  If you are not in custody, the filing decision generally takes about 30 days or longer.  Once the State files what is known as an ‘Information’ in your case, the Clerk’s Office will post your charges into the Clerk’s computer and you will be noticed with an Arraignment date.  You may also have changes to your bond on the same date, assuming there are added charges or changed charges, from the charges that you were originally arrested for by the police.  This is common because, the police do not  always arrest  you  for the identical offenses that your are ultimately charged  with by the State Attorney’s Office.

Pre-Filing Package:

Before your charges are filed, you have an opportunity to provide the case filing Assistant State Attorney with additional materials such as;  witness  statements, documents, recordings, and papers for his or her consideration in determining what, if any, charges should be filed against you by the state of  Florida.  I have represented thousands of clients pre-filing, which many times has gotten charges completely dropped. Oftentimes, supplemental materials filed by you will result in greatly reduced charges that are in  the process of being filed against you.  The pre-filing package represents the first line of defense in many cases.  If you do not file supplemental materials with the State Attorney’s Office,  the case  filing Assistant State Attorney will  rely solely upon the case filing package of materials received from the police department, and  may accept all allegations and statements contained in the police package as true.   This could result in  more serious charges  being  filed against you in the criminal Information.  Your defenses will rarely be set forth in the police reports used as the basis to arrest you.  It is unfortunate indeed  that  more defendants do not utilize the pre-filing package opportunity in an effort to have reduced charges filed.  I can assist you with these critical stages in your case.

The Defense Case:

After Arraignment in your case, you can  file a ‘notice of discovery’, which is an official  request for the state  to file a discovery response  listing  witnesses, papers, and other specific evidence upon which the state will  rely in attempting to prove it’s case against you.   You are entitled to take discovery depositions from all material state’s witnesses in the preparation of your defense.  The state will  also provide you with copies of all relevant papers in your case, which may include witness statements, lab  reports,  photos, crime scene reports, police reports, and  all other materials.  You may also list defense witnesses and use defense exhibits in your case, provided that you give notice of these witnesses and materials to the state in advance.  This is known as reciprocal discovery.

As your case progresses and as your attorney prepares your defense, pretrial motions may be filed on a variety of legal issues.  As a general rule, the harder your attorney works on your case- the better your ultimate disposition in the case will be.  Your attorney should examine the facts of your case and determine whether some or all of the charges filed against you can be dismissed and to file the appropriate defensive motions for dismissal.   The results achieved in every case differ depending on a variety of factors, such as the nature of the charges, your prior arrests, the strength of the state’s case, the strength of the defense case, the judge, and the Assistant State Attorney assigned to your case.  The prosecutor assigned to your case may change during the pendency of your case, which is quite common.  This could be a good thing or a bad thing. Being fully prepared for all possibilities is the key to a successful defense.

Part Three Of Three will discuss what happens next through disposition of a criminal case filed in Miami, Florida.

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This article by Miami Federal Criminal Defense Lawyer Ralph S. Behr is for informational purposes only and should not be construed as constituting  legal  advice. You should consult with your attorney to determine the best course of action to take on  your  case. For consultation regarding the specific facts of your case and arrest please contact Miami Criminal Defense Lawyer Ralph S. Behr.

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