State of Florida
Office of Attorney General Ashley Moody

Criminal Law Alert

Date issued: 07/25/2012
Editor: Carolyn Snurkowski

Clicking the icon following the number of each case cited below will link you directly to the cited opinion. AG Advisory Opinions are accessible from the list of links.


United States Supreme Court

Oral Argument Set: Wednesday, October 31, 2012.

11-564 — Florida v. Jardines — scope of Fourth Amendment application to police use of a drug-sniffing dog on the exterior of a private home (grant limited to Question 1).

11-817 — Florida v. Harris — drug-sniffing dog’s “alert” as probable cause to search a car or truck.
Florida Supreme Court

Possession of illegal drugs statute does not violate the Due Process Clauses of the Florida and United States Constitutions.

State v. Adkins, SC11-1878. Opinion filed July 12, 2012.

The Court found the following:
      The provision of section 893.13, Florida Statutes, as modified by section 893.101, Florida Statutes, which eliminates knowledge of the illicit nature of a controlled substance as an element of controlled substance offenses, but makes lack of such knowledge an affirmative defense, is not unconstitutional.
The Court held that the “circuit court erred in granting the motions to dismiss” and reversed the circuit court’s order.

Bureau Chief Robert Krauss and Assistant Attorneys General John Klawikofsky and Diana Bock represented the state.
[State v. Adkins, 07/12/12]

Opinion: sc11-1878Adkins.pdf sc11-1878Adkins.pdf

Circuit Court erred denying ineffective assistance of counsel claim.

Robinson v. State, et al., SC09-1860 & SC10-695. Opinion filed July 12, 2012.

The Court vacated Robinson’s death sentences and remanded for the imposition of sentences of life in prison. Robinson’s petition for habeas relief was denied.
      . . . we reverse the circuit court‘s denial of postconviction relief as it pertains to Robinson‘s claim of ineffective assistance of counsel during the penalty phase. Specifically, we conclude that counsel rendered ineffective assistance by failing to investigate, develop, and present available mitigating evidence that would have legally precluded the trial court from overriding the jury‘s life recommendation.

The Court found that trial counsel was ineffective for failing to conduct an adequate investigation into available mitigation evidence and that Robinson was prejudiced by this failure. The circuit court erred in failing to deny Robinson’s claim of ineffective assistance of counsel.

Assistant Attorney General Stephen White represented the state.
[Robinson v. State, 07/12/12]

Opinion: sc09-1860Robinson.pdf sc09-1860Robinson.pdf

B.O.L.O. - - - B.O.L.O. - New Cases Review by Florida Supreme Court. Summary in The Florida Law Weekly, Volume 37, Number 29, July 20, 2012.

MACKEY v. STATE, 83 So.3d 942, 37 Fla. L. Weekly D637b (Fla. 3DCA 2012). Supreme Court Case No. SC12-573 (Mackey v. State). Order dated June 27, 2012. Oral argument to be set by separate order. Criminal law--Carrying a concealed firearm--Search and seizure--Investigatory detention--Trial court properly denied motion to suppress firearm, which was concealed but recognized on defendant's person due to officer's experience and training and discovered during investigatory stop in pat-down to which defendant did not consent--Defendant's claim that carrying a concealed firearm is illegal only without a permit and, since officer had no information suggesting the lack of a permit, he lacked reasonable suspicion for the stop, overlooks the difference between an essential element of the crime and an exception, or affirmative defense, to the crime--The absence of a license is not an element of the crime of carrying a concealed firearm, but an exception, and reasonable suspicion of the non-existence of such an exception is not required to conduct an investigatory stop--Conflict certified.
First District Court of Appeal

“. . . an alert to a residual odor that the dog was trained to detect should not count either ‘for’ or ‘against’ the dog when determining its reliability.”

Blalock v. State, 1D11-5057. Opinion filed July 19, 2012.

Blalock pled nolo contendere to trafficking in marijuana and reserved “the right to appeal the denial of his motion to suppress the evidence discovered during the search of his pick-up truck after a drug-dog’s sniff and alert during a traffic stop.” Blalock argued it was error for the trial court to deny his suppression motion for the following three reasons: “1) the stop was pretextual because Appellant did not commit the alleged traffic violation; 2) the stop was extended beyond the time reasonably required to issue a citation; and 3) the dog’s alert did not give the officers probable cause for the search because the State did not establish the dog’s reliability under Harris v. State, 71 So. 3d 756 (Fla. 2011), cert. granted, 132 S.Ct. 1796 (2012).”

The 1st DCA affirmed on all three issues but wrote “only to address Appellant’s third argument.”

During a traffic violation stop, Sella (the drug sniffing dog) “alerted to the seam between the cab and bed of the truck in the vicinity of the truck’s tool box, and the subsequent search of the tool box revealed 28.6 pounds of marijuana wrapped in a vacuum-sealed package with an overwhelming odor of ammonia.”

Blalock contends “that Harris requires reversal because the State failed to introduce evidence of Sella’s field performance, including the number of times that she has been deployed and her success and failure rate, and thus the trial court could not determine Sella’s reliability.” At the suppression hearing, Sella’s handler/partner (Officer Kelly) testified to her field performance. That she was deployed 522 times; alerted 258 times, with contraband discovered 122 times and no contraband discovered 136 times. Officer Kelly testified that “in 22 of the 136 ‘false alerts’ it was confirmed that drugs had been either recently used by an occupant of the vehicle or recently present in the vehicle searched.” The trial court used the State’s calculations that showed Sella’s success rate was between 74% and 78% when denying the suppression motion. Blalock argued that the “trial court should only consider the number of verified alerts and the total number of alerts, as was done in Wiggs v. State, 72 So. 3d 154 (Fla. 2d DCA 2011).”

No records were admitted into evidence. However, the records were available to both parties and defense counsel used the records when cross-examining Officer Kelly. The 1st DCA determined that the failure to admit the records was harmless because “the records were available to both parties and utilized during the suppression hearing.” Further, the 1st DCA noted that the Harris Court recognized that “[a]n alert to a residual odor is different from a false alert,” and then went on to state that “in our view, an alert to a residual odor that the dog was trained to detect should not court either ‘for’ or ‘against’ the dog when determining its reliability.” Taking the successful alert and discounting the residual odor alerts, the 1st DCA calculated “Sella’s success rate is approximately 52%.” “Probable cause exists when ‘there is a fair probability that contraband or evidence of a crime will be found in a particular place.’” The 1st DCA, based on that low standard, determined that “Sella’s 52% success rate is more than sufficient to establish probable cause for the search of Appellant’s truck. Accord United States v. Carroll, 537 F.Supp.2d 1290, 1297 (N.D.Ga.2008).”

The 1st DCA affirmed the trial court’s denial of Blalock’s suppression motion.
      The training and certification evidence, along with the evidence of Sella’s successful field performance, provided the trial court an adequate basis to evaluate Sella’s reliability under the totality of the circumstances analysis required by Harris. The trial court’s finding that Sella is reliable is supported by competent substantial evidence and, based on that finding, the trial court properly determined that Sella’s alert provided the DOT officers probable cause to search Appellant’s vehicle.

Former Assistant Attorney General Dixie Daimwood represented the state.
[Blalock v. State, 07/19/12]

Opinion: 1D11-5057Blalock.pdf 1D11-5057Blalock.pdf
Second District Court of Appeal

Flawed jury instruction on attempted manslaughter amounted to fundament error.

Pierre-Louis v. State, 2D08-6265. Opinion filed July 20, 2012.

Pierre-Louis appealed his judgments and sentences for second-degree murder and attempted second-degree murder as a principal.

The incident surrounding these convictions “is a drive-by shooting where one person was killed and another injured.” It appears several people were involved in the incidence in separate vehicles. Testimony was conflicting as to “whether Pierre-Louis was in one of the vehicles and, if so, whether he actually fired a weapon.” Finding that Pierre-Louis did not possess or discharge a weapon, the jury “found him not guilty of unlawful discharge of a firearm.” Jury was instructed on two controversial jury instructions (flawed manslaughter by act and manslaughter by culpable negligence).

The 2nd DCA affirmed his judgment and sentence for second-degree murder, despite the flawed manslaughter by act instruction. As in Haygood v. State 52 So. 3d 1035, 1037 (Fla. 2d DCA), review granted, 61 So. 3d 410 (Fla. 2011), the 2nd DCA certified the following question as one of great public importance:

IF A JURY RETURNS A VERDICT FINDING A
DEFENDANT GUILTY OF SECOND-DEGREE MURDER IN
A CASE WHERE THE EVIDENCE DOES NOT SUPPORT A
THEORY OF CULPABLE NEGLIGENCE, DOES A TRIAL
COURT COMMIT FUNDAMENTAL ERROR BY GIVING A
FLAWED MANSLAUGHTER BY ACT INSTRUCTION
WHEN IT ALSO GIVES AN INSTRUCTION ON MANSLAUGHTER
BY CULPABLE NEGLIGENCE?

The 2nd DCA reversed the judgment and sentence of attempted second-degree murder and remanded for a new trial and certified conflict with Williams v. State, 40 So. 3d 72 (Fla. 4th DCA), review granted, 64 So. 3d 1262 (Fla. 2011).

Assistant Attorney General Susan Dunlevy represented the state.
[Pierre-Louis v. State, 07/20/12]

Opinion: 2D08-6265Pierre_Louis.pdf 2D08-6265Pierre_Louis.pdf
Third District Court of Appeal

Suppression motion granted in error; officer had probable cause to arrest defendant and “hot pursuit” is one exception to warrant requirement.

State v. Williams, 3D11-466. Opinion filed July 11, 2012.

The State appealed the order granting Williams’ “motion to suppress evidence upon a finding that there were no exigent circumstances to support a constructive entry of his home without a warrant.”

Evidence at the suppression hearing revealed that the Strategic Police Operations Response Team (SPORT) was patrolling a four-block area in marked police vehicles because the “police had received several threats within that week that police officers were going to be shot and killed.” A call came in that shots were being fired in the area. Officer Diaz testified that he exited his vehicle and heard shots being fired but did not see who was firing them or know how many people were involved. He walked to the area where he heard the shots and saw three males in the backyard of a home and saw one individual place something behind the dog house located in the backyard. There was “ambient lighting” from the streetlights and while Officer Diaz did not have binoculars he believed the object was a firearm “based on the way the individual held the object and removed it from his waistband.” The men appeared to be hiding but the officer could not say which man placed the object behind the doghouse, “nor did he ever investigate what was placed behind the doghouse.” He watched the three men leave this yard and walk across the street into a second yard. Officer Diaz got back in his vehicle and issued a BOLO (be on the lookout) with a description of the individuals.

Sergeant Rodriguez, also a member of SPORT, testified he heard the BOLO and saw Williams “walking across the street holding onto his waistband, but he did not see a bulge in the waistband.” Sgt. Rodriguez exited his vehicle with his firearm drawn, ordered Williams to stop but Williams did not stop. He saw Williams head “for the front porch of the house,” jump over some bushes, toss a firearm into the bushes, and continue into the house. Sgt. Rodriguez ordered Williams out of the home “because he had a firearm concealed away from my vision, and I saw him toss it. And if it’s a legal gun, why did he toss it?” Williams came out of the house, was place in custody, and a name check revealed that Williams was a convicted felon. The trial court granted Williams’ suppression motion finding that “Williams’ submission to Rodriguez’s order to come out of the house was a constructive entry of the home.” While the trial court found the officers’ testimony credible, “their testimony did not establish a predicate sufficient to justify the warrantless entry into the home to arrest Williams.”

The 3rd DCA found that Sgt. Rodriguez had probable cause for arresting Williams for carrying a concealed weapon. “The unrebutted testimony established that, after being ordered to stop, Williams took a gun which was previously concealed from Sgt. Rodriguez’s view and threw it into the bushes before entering the residence.” Generally, a home may not be entered without a warrant. “Thus, this Court has recognized the general rule that [w]arrantless searches or arrests in constitutionally protected areas, particularly one’s home, are per se unreasonable unless they fall within one of the established exceptions to the warrant requirement.” “Hot pursuit” is one such exception. “. . . the fact that the ‘hot pursuit’ was brief is of no moment.” United States v. Santana, 427 U.S. 38, 42-43, (1976).

The 3rd DCA reversed and remanded; vacated the order granting the suppression motion; and entered an order denying the same.

Assistant Attorney General Jill Kramer represented the state.
[State v. Williams, 07/11/12]

Opinion: 3D11-0466Williams.pdf 3D11-0466Williams.pdf
Fifth District Court of Appeal

Double jeopardy; resisting officer without violence reversed because all actions occurred as part of a single episode.

Davila v. State, 5D11-2845. Opinion filed July 20, 2012.

Davila appealed his convictions for resisting an officer with violence and resisting an officer without violence contending his convictions constitute double jeopardy.
      If the offenses occurred as part of one criminal episode or transaction, then separate convictions for both resisting with and without violence are prohibited because the lesser offense of resisting without violence has elements which are subsumed by the greater offense of resisting with violence. Swilley v. State, 845 So. 2d 930, 933 (Fla. 5th DCA 2005); see 775.021(4)(b)3., Fla. Stat. (2011). In making this fact-intensive determination, courts examine "whether there are multiple victims, whether the offenses occurred in multiple locations, and whether there has been a 'temporal break' between offenses." Staley v. State, 829 So. 2d 400, 401 (Fla. 2d DCA 2002).

The evidence revealed “that all of the conduct occurred at the same residence, to the same deputy, with no real temporal break.” Law enforcement was called to the scene where paramedics were assisting Davila’s aunt. Davila was interfering and Deputy Homstead “had to physically remove Davila from the home.” The altercation between the deputy and Davila continued until Davila was carried and put into the police car.

The 5th DCA reversed the conviction for resisting an officer without violence after finding all the actions occurred as part of a single episode.

Assistant Attorney General Carmen Corrente represented the state.
[Davila v. State, 07/20/12]

Opinion: 5D11-2845Davila.op.pdf 5D11-2845Davila.op.pdf

Reversed and remanded to allow defendant opportunity to set another suppression hearing (her 4th).

State v. Mobley, 5D11-3606. Opinion filed July 20, 2012.

The State appealed the order granting Mobley’s “motion to suppress certain drugs obtained from her purse.” “The unsworn motion alleged the drugs were obtained through a warrantless search and without consent.”

Three separate hearings on the motion were scheduled (September 13, 2011, October 17, 2011, and then again on October 19, 2011). Each hearing was continued because of no-shows. At the first hearing both Mobley and the arresting officer did not appear for the hearing. At the second hearing Mobley appeared but the arresting officer again did not appear. At this hearing counsel noted Mobley’s appearance and stated, “I would put on the record, too, this is a warrantless search. So the burden would be on the State.” It was noted that “[a]t no time did the defense seek to present any testimony to meet its initial burden of establishing a fourth Amendment violation.” The hearing was again reset and at this hearing both the arresting officer and Mobley did not appear. At this hearing defense counsel established “standing” because his client was at the previous hearing and stated that “once we’ve established standing, there’s no warrant, the burden shifts to the State.” The trial court granted the suppression motion “based on the State’s failure to present rebuttal evidence.”

In footnote 1, the 5th DCA noted that “the court’s reliance upon cases in which standing was not in issue was misplaced.” It was also noted in the opinion that it “appeared” that the trial court, “sua sponte, took judicial notice of the absence of a search warrant in the court file.” It was noted that neither the trial court nor the parties complied with the procedures set forth by the evidence code that govern judicial notice.

The 5th DCA reversed and remanded with directions that Mobley “should be allowed another opportunity to set a hearing on her motion to suppress.”
      We are not unsympathetic to the trial court's frustration with the State's inability to produce a witness on three separate occasions. Had the defense met its initial burden at the October 17 hearing by presenting evidence, the trial court would have been well within its discretion to grant the motion to suppress based upon the State's failure to present rebuttal evidence.

Assistant Attorney General Wesley Heidt represented the state.
[State v. Mobley, 07/20/12]

Opinion: 5D11-3606Mobley.op.pdf 5D11-3606Mobley.op.pdf

Petition for Writ of Prohibition Denied.

Babb, Jr., v. State, 5D12-2285. Opinion filed July 13, 2012.

The 5th DCA held that the Office of the Public Defender can represent a death-sentenced inmate in a clemency proceeding.
[Babb, Jr., v. State, 07/13/12]

Opinion: 5D12-2285BabbMiller.op.pdf 5D12-2285BabbMiller.op.pdf


 
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