Criminal Law Alert

O/A’s of Interest:

Kansas v. Cheever – Oral Argument took place on October 16, 2013
Docket No. 12-609

Issue: Whether, when a criminal defendant affirmatively introduces expert testimony that he lacked the requisite mental state to commit capital murder of a law enforcement officer due to the alleged temporary and long-term effects of the defendant’s methamphetamine use, the state violates the defendant’s Fifth Amendment privilege against self-incrimination by rebutting the defendant’s mental state defense with evidence from a court-ordered mental evaluation of the defendant.

Certiorari Granted: Summary by Dan Schweitzer at NAAG.

On 10/21/2013, the Court granted certiorari in the following case:

Hall v. Florida, 12-10882. The Court will resolve “[w]hether the Florida scheme for identifying mentally retarded individuals in capital cases violates Atkins v. Virginia.” The Florida Supreme Court has interpreted Florida law as imposing a strict IQ cut-off of 70 ─ that is, a person cannot qualify as mentally retarded if his IQ score is 70 or higher. Petitioner, whose score on one IQ test was 71, argues that IQ scores represent a range of plus or minus 5 points and that “Florida cannot by decree” ignore that range.

“Petitions We’re Watching.” Summaries @ SCOTUS.

The following case is up for consideration at the Justices’ private conference on November 1, 2013:

Florida v. Deviney
13-264
(1) Whether the decision of the Florida Supreme Court, holding that a suspect expressing his desire to go home unequivocally and unambiguously invoked his right to remain silent under Miranda , conflicts with Davis v. United States, Berghuis v. Thompkins, and decisions of federal and state appellate courts; and (2) whether a suspect's confession to his mother, while alone with her in a police interview room at his request, must be excluded as the fruit of an earlier confession to the police that violated Miranda.

RELISTS

Unger v. Young
13-95
Issue: (1) Whether the state forfeits an argument that Stone v. Powell bars habeas relief if the state fails to raise Stone in the district court, or whether Stone announced a categorical rule that Fourth Amendment claims are not cognizable on habeas review absent a showing that the state prisoner was denied a full and fair opportunity to litigate the issue in state court; (2) whether the decision of the United States Court of Appeals for the Second Circuit, in relying on studies that were not part of the state court record, conflicts with this Court's decision in Cullen v. Pinholster, which held that habeas review is limited to the record that was before the state court; and (3) whether the decision of the Second Circuit affords the state court the deference required by 28 U.S.C § 2254(d), as interpreted by this Court in Harrington v. Richter.

Rapelje v. McClellan
12-1480
Issue: (1) Whether a state-court order denying a request for relief on a constitutional claim “for lack of merit in the grounds presented” constitutes a merits adjudication of that claim for purposes of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA); and (2) whether a federal habeas court may, consistent with AEDPA, delve into the internal procedures of a state court to support its speculation that an order denying relief “for lack of merit” is not, in fact, a merits adjudication.

Ryan v. Hurles
12-1472
Issue: Whether, under the Antiterrorism and Effective Death Penalty Act (AEDPA), state court adjudications are per se unreasonable and not entitled to deference under 28 U.S.C. § 2254(d)(2) merely because the state court does not conduct an evidentiary hearing.

Stanton v. Sims
12-1217
Issue: (1) Whether the “hot pursuit” doctrine articulated in United States v. Santana applies where police officers seek to arrest a fleeing suspect for a misdemeanor; and (2) whether a police officer is entitled to qualified immunity where he pursued a suspect fleeing the officer’s attempt to arrest him for a jailable misdemeanor committed in the officer’s presence, into the front yard of a residence through a gate used to access the front door, and the officer had reason to believe the suspect might have been just involved in a fight involving weapons.

Plumhoff v. Rickard
12-1117
Issue: (1) Whether the Sixth Circuit wrongly denied qualified immunity to the petitioners by analyzing whether the force used in 2004 was distinguishable from factually similar force ruled permissible three years later in Scott v. Harris. Stated otherwise, the question presented is whether, for qualified immunity purposes, the Sixth Circuit erred in analyzing whether the force was supported by subsequent case decisions as opposed to prohibited by clearly established law at the time the force was used; and (2) whether the Sixth Circuit erred in denying qualified immunity by finding the use of force was not reasonable as a matter of law when, under the respondent's own facts, the suspect led police officers on a high-speed pursuit that began in Arkansas and ended in Tennessee, the suspect weaved through traffic on an interstate at a high rate of speed and made contact with the police vehicles twice, and the suspect used his vehicle in a final attempt to escape after he was surrounded by police officers, nearly hitting at least one police officer in the process.

Trial counsel was deficient for failure to object to Cannon’s refusal to cross-examination; defendant was not prejudiced by the error.

Victorino v. State, SC12-482 and SC12-2123. Opinion filed October 10, 2013.

Victorino was convicted of six counts of first-degree murder; one count of abuse of a dead human body; one count of armed burglary of a dwelling; one count of conspiracy; and one count of cruelty to an animal. The trial court “imposed four death sentences, two life sentences, and additional terms for the noncapital crimes.” Victorino appeals the order denying postconviction relief contending that “the postconviction court erred in denying portions of all of his claims except for the Brady/Giglio claim and two claims of ineffective assistance of counsel.” He also filed a habeas corpus petition alleging that “appellate counsel performed ineffectively by failing to argue on direct appeal that State witness Cannon’s refusal to be cross-examined was fundamental error.”

In one issue, Victorino contended that “defense counsel should have objected, requested a curative instruction, and moved for a mistrial when State’s witness Robert Anthony Cannon refused to be cross-examined; thereby violating Victorino’s right under the Sixth Amendment to cross-examine the witnesses against him.”

The record showed that “Cannon inculpated the defendant during the State’s direct examination and then refused to answer questions relevant to his credibility on cross-examination.” On direct, Cannon testified that “(1) he knew Victorino intended to kill the people in the Telford Lane Home; (2) that he and Salas were intimidated by Victorino; and (3) the four men entered the home with baseball bats.” On cross, he provided some basic information but when “asked about a letter he allegedly wrote in which he suggested that ‘everyone’ ‘blame [Victorino] for what happened,’ Cannon refused to answer whether the letter was in his handwriting or whether he wrote any letters from jail.”

The Florida Supreme Court noted that “[b]ecause Cannon gave direct testimony implicating Victorino but then refused to be cross-examined about whether he colluded to blame Victorino, Cannon’s testimony violated Victorino’s right to effective cross-examination under the Sixth Amendment.” See Kelly v. State, 425 So. 2d 81, 83 (Fla. 2d DCA 1982). The Court held it was error for trial counsel to not object and ask to exclude Cannon’s testimony. However, “Cannon’s testimony was far from being the linchpin of the State’s case. Cannon’s testimony merely ‘lent further support to . . . fact[s] already known to the jury’ and judge.” Cherry v. State, 781 So. 2d 1040, 1051 (Fla. 2000). The Court held that Victorino was not prejudiced by trial counsel’s error.

The Court affirmed the denial of postconviction relief and denied Victorino’s petition for a writ of habeas corpus. “Because the record demonstrates that appellate counsel did argue that Cannon’s refusal to testify constituted fundamental error, Victorino’s habeas claim is without merit.”

Assistant Attorney General Kenneth Nunnelley represented the state.

Opinion: sc12-2123Victorino.pdf

Juveniles charged with attempted first-degree murder with a deadly weapon are entitled to bond.

Treacy v. Lamberti, SC12-647. Opinion filed October 10, 2013.

This case is before the Court for review of the 4^th DCA’s decision in Treacy v. Lamberti, 80 So. 3d 1053 (Fla. 4th DCA 2012), “holding that the United States Supreme Court’s decision in Graham v. Florida, 560 U.S. 48 (2010), does not impact a juvenile defendant’s entitlement to bond because the Florida Constitution ‘focuses on the classification of the offense to determine entitlement to pretrial release, and not the potential severity of punishment.’” Treacy, 80 So. 3d at 1054.

Treacy, a 15-year old juvenile, was charged as an adult with “attempted first-degree murder with a deadly weapon.” He moved to have bond set and it was denied. Treacy argued “that article I, section 14, of the Florida Constitution provides for pretrial release as a matter of right for a noncapital offense or an offense that does not carry the possibility of a life sentence.” He also argued “that because Florida does not currently provide an opportunity for parole and Graham prohibits the State from sentencing him to life without such a possibility, he is entitled to bond under the provisions of the Florida Constitution.” The 4^th DCA disagreed, “finding that because the Florida Constitution only considers the classification of the offense, not a defendant’s eventual sentence, Treacy was not entitled to bond as a matter of right.” The 4^th DCA reasoned “that the Legislature could provide an opportunity for parole at some point in the future, which would satisfy the requirements of Graham.

At issue: “whether the prohibition in Graham provides that juveniles such as Treacy are entitled to bond as a matter of right. This issue is a matter of first impression for this Court.”

The Court rejected “the State’s assertion that Treacy may be sentenced to life imprisonment based on prospective legislation creating an opportunity for parole.” Adopting a strict construction of the plain language of the Florida Constitution, the Court “determined that because Treacy cannot be sentenced to life imprisonment, he cannot be charged with ‘an offense punishable by life imprisonment’ under current Florida law” and quashed the 4^th DCA’s decision.

Assistant Attorneys General Celia Terenzio and Mitchell Egber represented the state.

Opinion: sc12-647.pdf

“. . . evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert,” thus, providing probable cause to search.

Harris v. State , SC08-1871. Decided October 3, 2013.

On remand “from the decision of the United States Supreme Court in Florida v. Harris, 133 S. Ct. 1050 (2013).” Previously, the Court quashed the 1^st DCA’s decision in Harris v. State, 989 So. 2d 1214 (Fla. 1st DCA 2008), and “held that ‘the fact that a drug-detection dog has been trained and certified to detect narcotics, standing alone, is not sufficient to demonstrate the reliability of the dog.’” Harris v. State, 71 So. 3d 756, 775 (Fla. 2011). The Court concluded that “[b]ecause in this case the totality of the circumstances does not support a probable cause determination, the trial court should have granted the motion to suppress.” Id.

The United States Supreme Court reversed our decision, holding that

evidence of a dog’s satisfactory performance in a certification or training program can itself provide sufficient reason to trust his alert. If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs.

Harris, 133 S. Ct. at 1057. “The United States Supreme Court concluded that “[b]ecause training records established Aldo’s reliability in detecting drugs and Harris failed to undermine that showing, . . . [the police officer] had probable cause to search Harris’s truck.” Id. at 1059.”

“The Court withdraws its previous opinion and now approves the 1^st DCA’s decision and “in light of the United States Supreme Court’s decision, we approve State v. Coleman, 911 So. 2d 259 (Fla. 5th DCA 2005), and State v. Laveroni, 910 So. 2d 333 (Fla. 4th DCA 2005), and we disapprove Gibson v. State, 968 So. 2d 631 (Fla. 2d DCA 2007), and Matheson v. State, 870 So. 2d 8 (Fla. 2d DCA 2003), to the extent that these decisions are inconsistent with Harris.” The Court remanded this case back to the 1^st DCA for further proceedings.

Assistant Attorneys General Natalie Kirk and Susan Shanahan represented the state.

Opinion: sc08-1871Harris.pdf

Trial court erred not following “two step process for juvenile dispositions” by proceeding to step two without sufficient input from DJJ.

B.K.A., a child, v. State, 1D13-899; 1D13-0902; 1D13-0903. Opinion filed October 2, 2013.

B.K.A. appealed “three disposition orders adjudicating him delinquent and committing him to the custody of the Department of Juvenile Justice (DJJ) for placement in a low-risk residential program with post-commitment probation.” He argued “the trial court erred by committing him to a different restrictiveness level than that recommended by the Department without sufficient reasons, in violation of section 985.433(7), Florida Statutes and the requirements set out in E.A.R. v. State, 4 So. 3d 614 (Fla. 2009).”

The facts show that B.K.A. pled “no contest to battery, grand theft, and burglary of a conveyance.” As requested, DJJ prepared a predisposition report (PDR) “pursuant to section 985.43, Florida Statutes.” “DJJ recommended probation as an appropriate sanction and did not recommend commitment to the Department at any restrictiveness level. The PDR did not include an alternative recommendation of commitment at any restrictiveness level in the event the court decided to commit B.K.A. rather than place him on probation.” At the disposition hearing, the state and defense agreed with the recommendation of probation, however, the mother testified “that she did not agree that probation was appropriate.” She proceeded to tell the court all the trouble B.K.A. has caused in the two weeks prior to the hearing which included setting a fire in the yard, and stealing from the family. She “was unable to manage his behavior.” Based on all of the above, the court determined that “probation was not sufficient to meet B.K.A.’s needs” and “determined that B.K.A. should be committed to a “low risk program followed by probation” in each of the disposition orders. “The court explained its reasoning at the hearing, including the mother’s testimony, the previous probation status, and the felony nature of two of the offenses. Written reasons to support the court’s determination were attached to the disposition orders as well.”

The 1^st DCA noted that “the two part process for juvenile dispositions, as set out in section 985.433 (6) and (7), Florida Statutes, was described in E.A.R. v. State, 4 So. 3d 614, 624 (Fla. 2009).” “Step one is the ‘[t]he juvenile court’s first responsibility . . . to determine whether the child should be adjudicated and committed.’” E.A.R., 4 So. 3d at 624 (citing § 985.433(6), Fla. Stat.). The 1^st DCA determined “the circuit court fully complied with step one of the disposition process.” The trial court erred when it proceeded to step two of the disposition process, “as described in section 985.433(7)(a)-(b), without sufficient input from the Department. Specifically, DJJ never provided the court with a recommendation from the juvenile probation officer of ‘the most appropriate placement and treatment plan, specifically identifying the restrictiveness level most appropriate for the child.’” § 985.433(7)(a), Fla. Stat. DDJ recommended probation. “Probation is not a restrictiveness level . . .”

Because there was no restrictiveness level identified by the Department, the trial court’s orders that the child would be placed in a “low-risk” commitment did not violate section 985.433(7)(b) or the requirements for detailed explanation of any departure from the Department’s identified restrictiveness level, as set out in E.A.R., 4 So. 3d 614 (2009). The trial court’s error was in ordering a level of commitment without requesting a further multidisciplinary assessment and follow-up predisposition report, as the trial judge did in J.B.S. See § 985.43(1)(a), Fla. Stat.

The 1^st DCA affirmed the disposition orders on appeal “as to the adjudications of delinquency, but the particulars of the commitments are REVERSED for further proceedings in accordance with this opinion and section 985.433(7), Florida Statutes.”

Assistant Attorney General Samuel Perrone represented the state.

Opinion: 1D13-0899.pdf

Court's failure to instruct jury on its right to request a read-back was not fundamental error; defense did not object--it was not preserved.

Adams v. State, 2D12-2306. Opinion filed October 11, 2013.

Adams appealed his judgment and sentence for attempted robbery arguing “the trial court committed reversible error when it denied the jury's request without informing it of the possibility of a read-back.”

The record shows the jury sent out two different notes during jury deliberations. The first note indicated that they “would like to see all the depositions and all the [sic] Officer Bricker’s police report. Also transcripts of all the testimony.” The court informed both the State and the defense it would inform the jury "[w]hat the court will say to the jury when it brings it in is you have all the evidence that has been admitted in this trial. You must rely upon your individual and collective recollection of the evidence. There are no transcripts of testimony in existence." No objections were raised to the court’s proposed answer. The court answered the question to the jury, saying:

I have sent back with you all the documents that were received into evidence. Depositions were not part of evidence, nor was Officer Bricker's police report. Plus there are no transcripts of all the testimony in existence. Here's the bottom line: You must use your individual and collective recollection of the facts. You must then determine the facts, and then you must apply the law that I've given you. So with that, I'll have you return to the jury room for further deliberations.

The second note asked: “"What happens if we can't come to a unanimous decision?" The court summoned counsel again and “indicated it would advise the jury that he would have to declare a mistrial.” Again, no objections were raised to the proposed answer and when the jury returned, “the court advised them that it would have to declare a mistrial.” The jury resumed its deliberations and “returned with a guilty verdict on the lesser included offense of attempted robbery.”

The 2^nd DCA noted that “[t]here is no rule of criminal procedure providing that a jury may view a transcript of the proceedings. See Fla. R. Crim. P. 3.400(a) (omitting transcripts from the list of items a jury may view in the deliberation room). However, rule 3.410 provides that a trial court may, in its discretion, have portions of the trial testimony read back to the jury upon request.” “Thus, the threshold issue is whether the trial court's failure to inform the jury of the possibility of a read-back constituted fundamental error. See Delestre v State, 103 So. 3d 1026, 1028 (Fla. 5th DCA 2012).” The jury was confronted with an almost identical request from the jury in Delestre. 103 So. 3d at 1027. They did not request depositions and police reports, but the Delestre jury “specifically requested transcripts of ‘all testimony.’” Id.

The 2^nd DCA concluded that the trial court’s failure to inform the jury of its right to a read-back of testimony did not amount to fundamental error in this case. Defense counsel affirmatively agreed with the court’s responsive instructions and raised no objections; therefore, it was not preserved. “After the second jury note, it may have appeared to Adams that the trial court would have to declare a mistrial, which may have been more appealing to him than asking the court to allow the jury to review the testimony. Therefore, we hold that the court's failure to instruct the jury on its right to request a read-back was not fundamental error in this case.” The 2^nd DCA also noted that Adams’ reliance on LaMonte v State, 145 So. 2d 889 (Fla. 2d DCA 1962), is misplaced, since the “legislature removed the mandatory language in 1972; according to the committee note, the purpose of the change was to make the rule discretionary.” The 2^nd DCA affirmed.

Assistant Attorney General Marilyn Beccue represented the state.

Opinion: 2D12-2306.pdf

Trial court erred denying motion to suppress confession for failure to give full Miranda warnings during second interrogation.

Loureiro v. State, 4D10-3406. Opinion filed October 9, 2013.

Loureiro appealed his conviction and life sentence for first-degree murder arguing the trial court erred when it denied his motion to suppress his confession for failure to comply with Miranda. Miranda v. Arizona, 384 U.S. 436, 461, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966).

The record establishes that Loureiro and J.L. had been drinking with friends at two different bars. One witness stated that Loureiro threatened to kill J.L. and emphasized the threat “by moving his finger across J.L.’s neck in a slicing gesture.” Other witnesses testified at trial that the two were on friendly terms the entire evening. Loureiro and J.L. left the second bar and went to J.L.’s apartment. J.L. was found dead in his apartment when his roommate returned the following morning. Following the murder, Loureiro fled to Nicaragua. While in Nicaragua, Loureiro was incarcerated for other reasons and two detectives travelled to Nicaragua to interrogate him in August 2002. Loureiro was given his complete Miranda warnings in Spanish and English (read from a card). He “admitted to stabbing and murdering J.L., but contended that it was in self-defense because J.L. made aggressive sexual advances toward him (“the Nicaraguan confession”).

After being indicted by a grand jury in 2004, he was charged with the premeditated murder of J.L. He was expelled from Nicaragua in January 2005 and arrested in the United States upon his return. Loureiro was interrogated again and “gave a video-recorded second confession (‘the recorded second confession’), which was virtually the same as the Nicaraguan confession.” Prior to the second recorded interrogation, “one of the detectives made mention of the Nicaraguan interrogation” and then proceeded to give partial Miranda warnings: “You have the right to remain silent; anything you say can be used against you; you have the right to an attorney; if you can’t afford one, one will be appointed for you at no charge, all right?” “Loureiro acknowledged he understood his rights and remembered when he spoke to the detective in Nicaragua.” He “admitted to losing control and stabbing J.L., but contended his actions were in self-defense because J.L. made aggressive sexual advances toward him.”

Loureiro was found guilty and sentenced to death. While on direct appeal, the Florida Supreme Court remanded for an evidentiary hearing and the case was returned to the circuit court for a new trial. At retrial, Loureiro did not testify or put on any evidence, including the Nicaraguan confession. He moved to have the recorded second confession suppressed based on inadequate Miranda warnings. But that was denied. Only portions of the second recorded second confession were introduced by the State as evidence. Defense “played additional portions of the same interview.” Loureiro was found guilty as charged, but did not receive the death penalty.

In its analysis, the 4^th DCA discussed Miranda and how the “United States Supreme Court outlined the procedural parameters that law enforcement must employ before and during a custodial interrogation of a suspect.” Here, Loureiro during his second recorded interrogation was not told before his interrogation that “he has the right to consult with a lawyer and to have the lawyer with him during interrogation.” “Miranda also makes clear ‘unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of the interrogation can be used against [the defendant].’” Miranda, 384 U.S. at 479.

The 4^th DCA concluded that the “combination of words used to warn Loureiro did not meet the requirements of Miranda because they fail to affirmatively convey a notion of the right to the presence of an attorney before and during questioning.” The district court discussed and cited to “four supreme court decisions in Florida which discuss whether fresh Miranda warnings are needed when there is a relatively brief interruption or delay between interrogations, which is not caused by the defendant invoking the right to remain silent or the right to counsel.” The 4^th DCA reversed and remanded for a new trial.

Assistant Attorney General Jeanine Germanowicz represented the state.

Opinion: 4D10-3406.op.pdf

Probable cause affidavit: “. . . whether the sniff was up to snuff.”

State v Grue, 5D12-4812. Opinion filed October 11, 2013.

The State appealed an order granting Grue’s motion to suppress. At issue is “is whether there was sufficient evidence to establish probable cause—based upon a police K-9’s alert—set forth in the affidavit to support the issuance of a search warrant, or to paraphrase Justice Kagan, whether the sniff was up to snuff.”

The record reveals that Officer Alvarado and his K-9, Dixie, were working at the FedEx sort line in January 2012. Officer Alvarado pulled a packaged addressed to Grue from the line and placed it with similar packages in another area. Dixie was instructed to do a narcotics scent search of the packaged and Dixie alerted to the package addressed to Grue. Based on the alert, Officer Alvarado applied for a search warrant. “The affidavit in support of the application for the warrant was a pre-printed form with a minimal amount of case-specific information.” The affidavit noted the officer’s “credentials, training, and experience handling narcotics detection doges, including Dixie.” It also set forth Dixie’s training “including that she participated in a narcotics scent discrimination courts.” “It averred that Dixie was ‘certified’ and had located ‘thousands of pounds of narcotics’ in the past.” The affidavit also noted the circumstances leading up to and including Dixie’s alert on the package addressed to Grue.

A warrant was issued, Officer Alvarado opened the package and “found 6.2 grams of oxycodone pills and approximately 19.1 grams of cocaine.” Later, Officer Alvarado, acting undercover, handed the closed package to Grue when he arrived at the business center to pick up his package. Grue was immediately detained and “subsequently charged with one count of trafficking in four grams or more of oxycodone and one count of possession of cocaine with intent to sell or deliver.” Relying on Harris v. State, 71 So. 3d 756 (Fla. 2011(hereinafter Harris I), Grue moved to suppress the contents of the package arguing that “Officer Alvarado searched the package pursuant to a defective warrant that was, on its face, wholly lacking in probable cause.” He argued “the affidavit supporting the warrant contained merely conclusory, generic statements regarding Dixie’s training and certification, and lacked any explanation thereof. Furthermore, it did not include field records or false alert percentages, as required by Harris I.” The court granted the motion to suppress and this appeal followed. It was noted that while this appeal was pending, “the United States Supreme Court overruled Harris I. See Florida v. Harris, 133 S. Ct. 1050 (2013) (hereinafter Harris II). Grue argues that, even under Harris II, the affidavit was inadequate and affirmance is appropriate.

The 5^th DCA noted that “(t)he form affidavit utilized by Officer Alvarado was not a model of clarity nor did it provide a wealth of information.”

However, the test for probable cause does not require the proof that the beyond a reasonable doubt standard or even the preponderance of the evidence standard requires. See Harris II, 133 S. Ct. at 1055. Rather, the question we must answer “is whether all the facts surrounding [the] dog’s alert, viewed through the lens of common sense, would make a reasonably prudent person think that a search would reveal contraband or evidence of a crime.” Id. at 1058.

The 5^th DCA determined that the affidavit “passes this test.” And that based on the facts surrounding the alert, and “viewed through the lens of common sense,” a reasonably prudent person would think that a search would reveal contraband or evidence of a crime. The 5^th DCA reversed the order granting the motion to suppress and remanded for further proceedings. The 5^th DCA noted that “case law has changed dramatically during the pendency of this appeal . . . [o]n remand, counsel for Grue is not foreclosed from brining other challenges, outside the issue of probable cause.”

Assistant Attorney General Pamela Koller represented the state.

Opinion: 5D12-4812.op.pdf