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If you are arrested in United States, almost all local police departments and sheriff departments send the name to immigration authorities, known as ICE. If the immigration authorities believe that person does not have legal status to remain in the United States, they issue a detainer. Once your legal issues are resolved, the local authorities will keep you in custody until Homeland Security removes you to federal custody and begins the process, which may ultimately resolve with removal, (deportation). All this may change.

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Put on your constitutional scholar hat and take a look at our 4th Amendment and then explore the issue of what is a “detainer.” If it’s not an arrest warrant and it’s not a bench warrant, then it is not enough to deny an individual of their liberty. Immigration violations, unless charged as a crime, are legally sufficient.

A detainer is merely a request. It is not the same as an arrest warrant. Sheriffs and police agencies that refuse to release individuals based on an immigration hold, a detainer, have been sued. According to the Washington Post, Pennsylvania, Colorado, and Oregon have all been successfully sued for wrongfully detaining individuals. Several sheriffs and police departments in those states are now releasing individuals once their criminal problems are resolved even if they have a formal detainer request from Homeland Security. The United States Constitution clearly states that the seizure of a person (that is holding them in custody) requires the filing of charges, or a warrant.

Immigration holds, like a “detainer,” is legally none of the above and it has been held to be legally insufficient to keep an individual in custody. Under the interstate compact, and the rules of comity, a detention can only be lawful if it is pursuant to a warrant, which requires a finding of a criminal act. When an immigration hold is issued, it is not an arrest warrant, and therefore has been found legally insufficient to justify keeping in individual in custody. The American Civil Liberties Union in Colorado has been on the front lines of this litigation and has sued successfully. A federal judge in Oregon held that the county violated the Fourth Amendment rights of that individual when they held her with nothing more than a detainer request from the immigration authorities. Criminal defense lawyers in South Florida are gearing up to sue County sheriffs offices and Miami police departments for wrongfully detaining individuals with nothing more than a detainer from ICE.

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Two unrelated cases will be before the U.S. Supreme Court on the issue of cellphone searches incident to an arrest. In one case the cellphone search was upheld, in the other it was ruled as unconstitutional. The issue is important when 91% of U.S. residents carry cellphones with them.

Searches are 4th Amendment issues. First, warrantless searches are disfavored which means a search without a warrant is acceptable only when it falls within either an “exigency” or “exceptions.” Start by accepting that the 4th Amendment protects people, not places. Expectations of privacy are our cultural heritage, for example: one’s home is your castle and you have a heightened and recognized expectation of greater privacy in your home than on the street. We argue in court all the time about whether someone living in a rooming house, in a car, in a shelter, in a hotel, in a friend’s house is in their home…you can think up a list and it is a long one… The approach courts take is a “totality of the circumstances” standard, which means if you can convince a judge that sleeping under a bridge is your home, then you have a heightened expectation of privacy and are not subject to a warrantless search…unless there are “exigent” circumstances or an “exception”. The first exception is officer safety. Courts have told us for fifty years that because cars move around a lot, or can move, that you have no expectation of privacy and cars are subject to searches. Courts add things like, what is the scope of a search? Is looking in the car’s locked trunk and finding a dead body a reasonable search or is it beyond the scope of the reasons for the search, such as officer safety. Now back to cellphones.

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First, was the arrest made in your home or in the street or in a car? OK, both cases involve cars so we have no reasonable expectation of privacy in a car. Next…. was the search incident to an arrest? Was it part of taking an inventory? Once inventoried, can it be opened for officer safety or to preserve your property rights? Would it inevitably been opened? Was the search for officer safety? How can the State argue that looking in a cellphone directory has anything to do with officer safety at a traffic stop? Surely they cannot, but in one case they did and the search was upheld.

The thing to avoid is the old 20-20 hindsight practical approach because courts don’t and can’t do that because we are a nation of laws and the law creates a right to be free of unreasonable searches and seizures. If you did nothing wrong, then you have nothing to hide, right? Or…. you have no recognized constitutional rights to privacy when you commit a crime, so if the cop finds something like a dead body then it’s okay…Right? Or wrong? Or perhaps you start from thinking that if I didn’t do anything wrong then I should be okay with the police searching my cellphone, and my house, and my pockets, and my bank account, and my diary and my charge accounts and my cash purchases. If you have nothing to hide then the police should be able to search you…are you okay with that? Or would you be more comfortable with the reverse, if I have nothing to hide then I have no duty to let police search me.

Just to add something more to the soupy state of your mind at this point…. if a police officer finds a key in your pocket does that mean he can take the key and open your home’s front door and search?

Look for some good intellectual and possibly tortured twisting of the “totality of the circumstances” added to societal approved expectations of privacy, scope of searches and then stand back and watch our Supremes spin this one into some very important new rules for criminal defense lawyers.

For more information read these articles:

Supreme Court Considers Limits On Warrantless Cellphone Searches

Justices Appear Divided on Cellphone Warrants

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Who is Steven Wise and why did the New York Times Magazine have him on its cover on last week? Steven Wise is an attorney who for thirty years has been a leading advocate of animal rights, but not in the way most of us understand. Animal rights have been created, or granted, by legislators to protect nonhumans, but nonhumans have never been afforded jurisdictional rights to seek relief in courts. All that will change if Steven Wise gets his way. His objective is for the courts to grant legal person status to nonhumans so that lawyers can sue on the behalf of animals and obtain monetary judgments. If he creates a basis in law for nonhumans to sue humans (he’s representing a chimpanzee suing a human) it will be a moment in history well worth remembering. 
The basic starting point of Western law is jurisdiction. chimpanzee.jpeg Jurisdiction is what a court grounds itself upon when it adjudicates cases and controversies, accesses damages, punishes violators of criminal laws, and enforces constitutional and statutory rights. In 2014, only persons can avail of courts and the definition of persons has historically been limited to human beings, corporate fictional persons and groups and entities that have been granted standing. If Steven Wise wins his case that will all change. Nonhumans are chattel. Chattel is property, and until the mid-nineteenth century women were legally considered chattel: in England they could not take title to property, could not inherit and could not enforce contracts until the women’s emancipation movement changed women from chattel to persons. Nonhumans are chattel under our legal system, and they can be owned, sold, transferred, and eaten. Soon, if Steven Wise wins his cases, nonhumans will have standing and can sue in courts for the right to be free of human abuses including living conditions, health care, and possibly the right to be not eaten at restaurants and homes as a dinner entrée.

The Nonhuman Rights Project has sued on the behalf of a chimpanzee named Tommy complaining of solitary confinement and abuse, seeking to be freed of captivity and granted asylum in an animal refuge. If the suit goes forward then humans will be called before courts and sued for the range of abuses and claimed damages by nonhumans including bovine (cows: dairy and beef), chickens, ducks (pate), squab, fish, turkeys and cats.

In effect, by seeking to enforce animal rights through standing Steven Wise seeks to break down the legal wall between humans and nonhumans. Animal rights supporters are hopeful that if the courts grant nonhumans standing in the court system that the relationship between humans and nonhumans will be permanently altered.

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The office of the US Attorney announced that several thousands of men and women in federal prison for conviction of federal drug laws will be eligible for early release. The review process means sentences that were given out in the past will be reduced, significantly reduced. That means, and this will rock a lot of worlds….those already serving federal prison sentences can be released early.

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These are the criteria:

1. They are serving a federal sentence that would likely be significantly lower if sentenced today (the new policy date is 2014) because of intervening changes in law or policy;
2. They have served at least ten years of the sentence imposed;
3. They are relatively low-level offenders who have no ties to any criminal organizations or gangs;
4. They have relatively little criminal history, both as a matter of quality and quantity;
5. They exhibit a record of good conduct while incarcerated; and

6. They do not have a history of violence.

Deputy Attorney General James Cole made the announcement in April 2014 about this historic event; historic because it has never happened before, and because it may be nullified or cancelled when the current administration leaves. The American Bar Association, the Federal Public Defenders, the National Association of Criminal Defense Lawyers are all on board and available to place you with an attorney who can begin the process of sentence reduction.

Hundreds, if not thousands, of federal prisoners will qualify for this clemency/reduction of sentence program.

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Tired of waiting for MasterCard to deposit your money into your bank account? How about sending money to your child at school, or buying something online? BITCOIN is the solution: instant, at the speed of a computer stroke, transactions…and it gets better…

Like Gold, which goes up and down, BITCOINs go up and down. Most of us don’t trade Euros and Dollars but we can trade BITCOINS. Here how it works: My employer pays me my monthly salary by sending me a part of a BITCOIN to my computer: I in turn use a small part of the BITCOIN to make my car payment and my rent. The holder of my car loan got “paid” in a millisecond, so did my Landlord and now…. its off to the races because he, me, you, all of us are now BITCOIN owners and can negotiate the prices of everything we buy in BITCOIN pieces. I look on my computer and see that BITCOIN has gone “UP” so I can now keep more of my BITCOIN piece when I make my rent, car, food, and etc. payments. See the beauty? Feel the magic? We can now all increase our purchasing power by paying in BITCOIN.

WHOA!!! What happens when BITCOIN goes down? Here is the beauty of this whole thing, we can wait, hold our BITCOIN and pay our bills with dollars, which don’t go up and down.

Imagine if there was a finite amount of GOLD on the planet and all the world’s currencies were set back to a gold standard. That is what BITCOIN has done: it has set a floor on the number of BITCOINS in existence and set them out there for us to use instead of currencies.

The major opponents of BITCOIN are bankers, governments, large currency based businesses (MasterCard, Visa, etc.). The major boosters of BITCOIN is everyone else on the planet, including this country lawyer in Fort Lauderdale who parks at the Broward County courthouse and pays $8.00 an hour to park his car…in dollars. Hey! Wanna pay for parking in BITCOIN? YEP!!!

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Florida’s STAND YOUR GROUND STATUTE is about self-defense, one’s right to use force when in reasonable fear of an unlawful touching. The statute grants immunity from arrest and prosecution if use of force (as permitted in Florida’s Self Defense Statute (F.S. 776.012, F.S 776.013) is asserted and proven by a preponderance of the evidence at a hearing. It effectively gives the defendant a chance to have the case dismissed by a judge before trial.

What makes it a great criminal defense tool is just that: it is a shortcut to ending a criminal problem. A well-prepared criminal defense lawyer can have his client’s case dismissed by a judge and avoid the risks of a trial. The key is an understanding of the mechanics of how to conduct a Stand Your Ground hearing in Florida. I know something of this as I was the criminal defense lawyer in the Velasquez case, and I took it up on appeal. Start by understanding this…the statute has nothing to do with the level of violence used: whether it is waiving a gun (an assault) or a homicide (taking a human life). It has everything to do with the reasonableness of the fear. Important to understand as well is it is a territorial statute: that means where you are can be a home run. What does that mean? The statute assumes if you are in your residence the issue of reasonableness of fear.

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That means you can read FS 776.012, F.S 776.013 and F.S. 776.032 together to the judge and if you were in your residence then your fear is reasonable almost without exception. Step One is done! When I say done I mean the first and most difficult high ground has been taken. In all other Stand Your Ground hearings you have to convince the judge that you were not the instigator or first one to use or threaten violence. Here we have to take into consideration that judges are often looking at the outcome (is someone dead here or wounded, or was there no injury) and may be prone (and I have seen this repeatedly) to toss out a case where no one was hurt and so, basically, no touch no foul no prosecution.

If you don’t have the statutory presumption that the fear was reasonable (in a residence) the next hill to take is either there was a trespass or that you had a right to be where you were. Here the statutes again give you an easier route to establishing that your fear was reasonable.

I often, which means all the time, file a Stand Your Ground motion when the issue of self-defense is part of the case. Two reasons: first if your motion is denied you can immediately stay the proceedings and file an appeal. Now everything stops while the appellate court takes a few weeks to read the statute. Also your prosecutor may read it, which is in itself a rarity. Next, if there is only an issue of proof you may win because the burden is a low one: a mere preponderance (think 51%), not beyond a reasonable doubt. Add to that the standard for review is an abuse of discretion standard and you now have three appellate judges looking at who did what to whom and weighing in with an often-practical approach (no touch no foul no trial). Also the legal standard which applies to the trial judge’s findings is a goldmine for a well-prepared lawyer on appeal. Read a few cases on “competent and substantial” and you can drive a large truck through that standard on your way to having an appellate court let the case be dismissed without a trial. Another benefit of a Stand Your Ground motion is it gives the criminal defense lawyer a preview of the testimony they will have to rebut at trial.

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Federal Sentencing has been praised and pilloried since 1984 when the Sentencing Commission, a creature of the Congress, was created. Over the years it has been seen as race neutral, gender neutral, and fair. Heralded as removing judges from the influences of money and lawyers, it has both succeeded and failed beyond expectation. It is now being reviewed. Thankfully. And, amazingly CNN has reported favorably on it!

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The Sentencing Commission published some revisions, and they will be implemented. The Congress forever palavering over voters, who want criminals in prison, has evolved. Critics who have been overwrought and often wrong are tempering and things are where they should be: on the road of reform.

The elimination or the cocaine/crack disparities has been accomplished. The US Attorney’s Office has created and is implementing reviews of sentences that will be reduced. Minimum mandatory sentences are being halved. States, Florida and (surprise!) Texas have or are dealing with the issue of incarceration, retribution and the return of the incarcerated to functional citizenry. Drug addiction criminal sanctions include programs not only jail cells. The adage that every problem is a nail and every solution is the hammer is rolling back. Many criminal defense lawyers, both State and Federal, are reporting from the front lines of federal criminal trials and sentencing and the reports are not good, but they are being reported. It is a rationalizing process. And, as no surprise to Tea Party and moderate republicans, National Public Radio agrees!

So… what is going on here? What is being changed?…
Changes go to the DRUG QUANTITY TABLE. The proposed amendments would lower, by two levels, the base offense levels, which means taking 2 to five years off of the sentencing guidelines range(s). Although not a big drop in years it is an attempt to balance the public rage and push to jail addicts and suppliers. Federal Statute Title 18 section 3553 lists statutory factors for a proper and balanced sentence: the circumstances of the criminal act (the offense), the character of the defendant, the judge’s responsibility to the community at large to discourage criminal acts by others who become aware of the certainty of punishment, protecting the public from the defendant returning to the community and victimizing others, and, lastly, to salvage any future hope that the defendant can become a part of the general public who behaves well and pays taxes.

As the Attorney General told the Congress, being effective is being smart and the revisions say “smart” not “blunt”. And your federal government has chimed in with a balanced report of the subject:

Smart is smarter and the proposed amendments are a start toward and a part of the evolving of a view of bad behavior that can only remove those who sin by housing them in concrete and metal bars until age, death or human evolvement (both societal and personal) emote change. Change is needed from both realms and the proposed changes have enlisted support from all parties and actors in the criminal justice realm.

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A concerted drive by the U.S. Attorney’s Office and a task force comprised of State and Federal agencies, police and sheriff agencies in Broward, Dade and Palm Beach County has resulted in over a dozen major cases in Florida and U.S. District Court in the Middle and Southern District(s) of Florida. (DEA’s “Operation Pill Nation” and “Operation Pill Nation 2“) pills.jpg

The initial investigation by the joint federal and state task force resolves with a criminal case filed in Florida court or Federal Court. The press calls them “Pill Mill” cases. (See CNN Article)

Doctors, Physician Assistants, Pharmacists and nurse practitioners are the focus. The federal agencies have succeeded in many instances by charging conspiracy counts coupled to sale, distribution and trafficking charges (Florida criminal courts). The objective is to stem what was a rising number of deaths by drug overdose of oxycodone, oxycontin, and a slew of opioids drug cocktails by accidental overdose and in some instances, suicide. As a result, doctors have abandoned the practice of pain medicine resulting in a lack of medical services for those suffering from chronic pain from cancer, injuries and long term disabling diseases such as arthritis, joint conditions, automobile accidents and end of life issues. (See “Florida’s pill mill crackdowns hurting those in real pain”)

South Florida has been the focus of these cases and a small cadre of criminal defense lawyers in Miami and Fort Lauderdale have developed an expertise in these cases due to the number of cases filed in this district. Political pressures and excessive prosecutorial zeal has resulted in a rush to charge and charges by the medical establishment that patients are suffering because doctors are afraid to prescribe pain medications for fear of prison.

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Florida provides a limited opportunity to seal and or expunge criminal records. The good news is not as good as one would hope and the bad news is a deal breaker. Here’s what is going on…

First: sealing and expunging doesn’t erase your arrest or the result. It doesn’t eliminate your biggest issue: getting it off of Google. The State of Florida will permit you to seal and or expunge but only if it is a non-violent crime, and only once. The list is very long and includes any crime involving children, seniors, crimes of dishonesty and a long list which you can get by viewing the statute. But, even if you get the State to seal or expunge, it doesn’t disappear. Any state agency can get at it, all law enforcement, any Federal agency, any employer where you are working with children, seniors, or people with mental disabilities. Worse still, it only applies to records kept by the State, it doesn’t apply to records kept by non-State entities. For example, when I Google your name it will always come up on any website that dumped the arrest: which is all of them. So if we get your records sealed and you apply for a job, a loan, a rental, a credit card: they will find it on a search engine.

The sealing and expunging gives you, under the Statutes (Florida Statute §943.0585 & Florida Statute §943.059), the right to say that the event didn’t occur, but not really, it says you can say the records were expunged: which is as a practical matter useless. Worse still, if anyone has looked online and asks you if you have any criminal event in your history and you deny it…game over. It is your lack of candor that will harm you and probably more than the actual fact that you were arrested or convicted. What to do???

First: understand the very limited advantage you get with a sealing and expunging. You get the moral high-ground to say that you are so concerned with your record that you sought to have it sealed and expunged. Second, know that it will never go away: like a bell cannot be “un-rung”.

My advice is to relax and know that arrests and convictions have become so common in our society that most companies have to deal with the fact that a high percentage of Americans have a criminal history and so you can realize that having a record is not always a deal breaker. Just acknowledge that you have a criminal event in your history, that you have changed and are now a better person and that you want them to know so they don’t think you’re hiding anything. If you interviewed me you would be okay with getting past the fact that I had an arrest and look at the whole person. An employer interviewing 20 people will find that a majority have a crime in their background and that is the reality of our times.

The process: first sent a fee to the Florida Department of Law Enforcement and they will respond by telling you that your record is, or is not, eligible for sealing and or expunging. Step two: file a motion in your local circuit court for a sealing and expunging. You will get a case number and a judge. Next: the State Attorney has to be approached and asked if they have a position either opposing or not opposing. Next: get a court hearing date and then a Judge will either grant or deny your petition. Once granted then you send it to FDLE and they will, in about three months, seal and expunge. They don’t notify you when it’s done and you get nothing formal. Most people need a lawyer to help them through the process which, years ago was much simpler, but now requires two court hearings and a motion in written form to get it done.

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Don’t confuse clearing one’s conscience with yourself and your maker with talking to the police. I wrote the book on it: CAN THE POLICE LIE TO ME?
Yes….the US Supreme Court calls it “aggressive interrogation” but to normal folk it means lying. The police can promise you anything short of a walk to induce you to make a statement and the courts will consider it voluntary. “I’ll go easy on you”, “I’ll speak with the prosecutor for you…” “Tell me what you did or I’ll go hard on you”….all spoken by a cop to get you to make a so-called voluntary statement. Do not go there!!
If you are the subject of a police investigation you have no duty to give any information that will be used to prosecute you in a criminal court. If the police are there to arrest you then you must go with them. Do not resist. Do not oppose them taking you in custody. You may have a bad night in the local jail, but any criminal defense lawyer can help you get a fair trial if you don’t make any statements to the police. Remember the mounted fish on my wall, the one that has the following brass sign below it, which reads: ‘IF I ONLY KEPT MY MOUTH SHUT I WOULD NOT BE HERE TODAY”.

When in doubt, if you have any questions: go to my FREE! App and download it to your smartphone, iPad, iPhone, or tablet…. The name of the free app is SAY NO TO POLICE. It’s easy to use, fun to read, and can inform you on most of the things that judges and cops know, but don’t want you to know!

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