In the United States, you are entitled to your privacy. You are also entitled to protections from government intrusions, but there are limits to such privacies. State and federal officers are allowed to search your premise, car and other property in order to obtain illegal items or evidence of a crime. However, they must follow specific rules when exercising this right.
What Police Are Allowed to Do
Under the Fourth Amendment of the United States Constitution, police and federal officers are allowed to engage in reasonable searches and seizures of your personal property. In order to prove that their search is “reasonable,” they must show that it is likely a crime has occurred and a search will find the evidence of that crime – known as probable cause. In some situations, the police must first prove their reasonable suspicion to a judge and then receive a warrant from that judge before their search can be carried out. However, police are not required by the law to have a search warrant while conducting a search.
Police are also allowed to search and seize items when they believe there is no legitimate expectation of privacy. For example, if you do not have a private interest in the items, police can take them. Determining if you had an expectation of privacy can be complicated to determine. If you have incriminating evidence in plain view – meaning police officers do not have to search for it because they can clearly see it – you may have no expectation of privacy. Also, storing items in public places are considered no longer private; therefore, police can search and seize items in public without a warrant.
Police are also allowed to use first-hand information or tips to justify their search of your property. But, police are required to prove that the information they used was reliable before they conduct their search. They cannot just take the word of an individual without verifying the information.
Lastly, police are allowed to extend their search with or without a warrant if:
- They feel it is necessary to protect the safety of others
- They feel it will prevent the destruction of evidence
- They discover more evidence that is in plain view
What Police Cannot Do
It may seem as though police can do a lot when it comes to searching your private property and items, but they have plenty of restrictions as well. Just some of the things police officers cannot do include:
- They cannot perform a warrantless search if you have a reasonable expectation of privacy in that area.
- If the evidence was obtained through an unreasonable search or illegal search, that evidence cannot be used against you in court.
- Police cannot use evidence that results from an illegal search to look for more evidence.
- Police cannot search your vehicle unless they have a reasonable suspicion it contains evidence or illegal items – if they confiscate the car, they can search it.
- Unless the police have reasonable suspicion that you were involved in a crime, they cannot search your person.
- Police cannot obtain a search warrant on false information and they must believe in the statements presented to the judge as evidence for a warrant.
Were Your Rights Violated? Contact a Jacksonville Criminal Defense Attorney
While police know what laws they must obey, it doesn’t mean they always follow them. If you feel you were subjected to an unlawful search or seizure, you need a criminal defense attorney to assist you with your case. Contact The Armstrong Law Group, P.A. today. We can assist you with your defense. To schedule a consultation 24 hours per day, call 904-356-8618 or fill out an online contact form with your questions.Read More
The double jeopardy protection is spelled out in the United States Constitution. It protects a defendant from being charged with the same crime more than once – but there are exceptions to this rule. Not all cases qualify for double jeopardy and there are instances where a person can be charged with the same crime even after they have been acquitted the first time. Therefore, it is important that you understand how this protection works, the eligibility requirements, etc.
The Basics of Double Jeopardy
Double Jeopardy is a clause in the Fifth Amendment of the United States Constitution. It provides that no person shall be charged with the same offense twice. Most states have guarantees that defendants will not appear in a court for the same crime more than once – and even those states that do not express this guarantee will follow the protection of the Fifth Amendment.
The reason for double jeopardy is complex, but includes the following:
- It prevents the government from using its resources to wear down innocent individuals and convict them.
- It protects individuals from the financial and emotional turmoil of multiple prosecutions for the same crime.
- It preserves the finality of criminal proceedings.
- It restricts prosecutorial discretion.
- It eliminates judicial discretion to impose punishments that are not prohibited by law.
Does My Case Qualify for Double Jeopardy?
There are only specific types of cases that will qualify for this constitutional protection. If a particular proceeding doesn’t place an individual in jeopardy, then subsequent proceedings are allowed – and it is no violation of their rights.
The Supreme Court has established that the right of double jeopardy is not limited to capital crimes; instead, the protection extends to all felonies, misdemeanors and juvenile delinquency adjudications – regardless of the punishment.
Also, it is not a question of if jeopardy has attached, but of when jeopardy attaches to a case. This is a critical question because the government can take actions before it attaches, such as dismissing an indictment to prevent double jeopardy. In a jury trial, jeopardy attaches once the jury is sworn in. For bench trials (trials without a jury), jeopardy will attach only when the first witness is sworn in. If the defendant accepts a plea with the prosecution, jeopardy does not attach until that plea has been accepted by the court.
It is important to remember that jeopardy only protects you from the same offense – and what the same offense may be can be easily skewed by the law. State and federal courts will first determine if the same facts have already been litigated and if the case is the same transaction. If they feel it is not, you could be charged with other crimes associated with a crime for which you have already been acquitted.
Speak with a Criminal Defense Attorney
If you have been arrested for a crime and you feel that jeopardy attaches to your crime, you need an attorney. Contact the Jacksonville criminal defense team at The Armstrong Law Group, P.A. today. Call us for your consultation at 904-356-8618 or fill out an online contact form with your questions.Read More
It says it in the Miranda Warning: you have the right to remain silent and you have the right to an attorney. This warning is a staple in police shows on television, but it is also something that is said in real life to inform a suspect or individual being arrested of their rights. If you are being arrested, you do not have to speak to the officers and you can request counsel. Even if you cannot afford such representation, you have the right to legal counsel and the courts will provide you with such counsel. The criminal justice system, however, can be complex, and understanding how your rights work and how to invoke those rights is not always as clear.
Invoking Your Right to an Attorney
Police will often ask if you will waive your right to counsel and speak with them – telling you your chances are better if you just settle the matter. You may feel that if you want to prove your innocence, you shouldn’t ask for an attorney. This is not the case.
It is imperative that you always have an attorney present any time you are being questioned by the police. This is even truer if you are innocent. Attorneys know the legal system and know how to handle police interrogations. Your attorney can inform you of every step you will face in the arrest and arraignment process and they will also ensure that you do not incriminate yourself accidentally.
Even if you have waived your right to an attorney earlier on in the conversation, you can invoke your right at any time. You can tell the questioner that you will not answer any more questions until counsel is present – and you will need to inform them that you wish to contact an attorney.
What if You Cannot Afford an Attorney?
You do not have to be of high financial means to have an attorney. If you cannot afford one or do not have one, a court-appointed attorney will be provided to you for counsel. This individual may not arrive as quickly as a private attorney and sometimes it can take as many as 24 hours to meet with one.
What an Attorney Does for You
In a criminal case, your attorney works as your advocate. They are there to protect you from the start all the way until the end. They work on your behalf and look out for your best interests – no matter what. Your attorney will explain to you what you are being charged with, potential penalties you could face and how the court process will pan out based on the type of case. Your attorney will be present during questioning and ensure your civil rights are not violated.
If you go to trial, your attorney will work to negotiate an ideal plea bargain or argue your case in court – proving your innocence.
Do Not Underestimate the Power of an Attorney – Contact One Now
If you have been arrested or you are being questioned by the police, contact a Jacksonville criminal defense attorney right away. An experienced attorney advocating on your behalf is critical. Call The Armstrong Law Group, P.A. today at 904-356-8618 to schedule a consultation or ask a question online.Read More
Under the Controlled Substances Act (CSA), there are classifications for drugs in the United States comprised of five schedules. These schedules are based on the potential for abuse and if the drug has been accepted for medical purposes or not. Each schedule is governed by different rules regarding the sale, possession, use and production of those drugs in that schedule. The punishment will depend on the schedule of the drug.
The Federal Drug Schedules
These drug schedules are critical in a criminal defense case. If you are found in possession with the wrong classification of a drug, you could face more serious penalties. The schedules include:
- Schedule I – These are at a high risk for abuse and dependency. There is no medical use for these drugs and possession of them can lead to very strict penalties. Schedule I drugs can include things like psychedelics, heroin, and cannabis.
- Schedule II – These drugs also have a higher potential for abuse and dependency, but unlike Schedule I, these drugs are allowed in medical practices. These can be issued under a legal medical prescription, but are heavily regulated. Some examples of Schedule II drugs can include morphine, methadone, Adderall and Ritalin.
- Schedule III – Schedule III drugs are moderate in terms of abuse and dependency and are not as heavily regulated as Schedule II. They are used in acceptable medical practices and you can be issued a legal prescription for Schedule III drugs. These drugs include things like Marinol, ketamine and steroids.
- Schedule IV – There is a low potential for abuse and dependency with Schedule IV drugs and they are used in medical practices. Some examples of Schedule IV medications include Xanax, Ambien and Valium.
- Schedule V – These are even lower for abuse and dependency and have accepted medical practices. They can include cough syrups with codeine.
Being in possession of a Scheduled drug will determine the penalties you can face if you go to court. Schedule III, IV and V drugs are all accepted in medical practices and if you have a valid prescription, you cannot be charged with a drug crime. If, however, you don’t have a prescription, you could be charged with possession – and depending on the volume, you could have possession with intent to distribute.
In Florida, scheduled drugs are governed under Florida Statute Section 893.03. The penalties for possession of CDS will depend on the type of drug and the amount of that substance found. The penalty can be the same regardless if possession was actual or just constructive. Some drug offenses carry felony charges, while others may carry only a misdemeanor charge.
If you are found in possession of a Schedule I drug, you will face a felony of the first degree and you can face up to 30 years in prison.
Arrested for a Drug Crime? Contact a Florida Criminal Defense Attorney
If you have been arrested for a drug crime – whether you are found with Schedule I or even Schedule IV drugs – you need to contact an attorney. The penalties for drug offenses are harsh in the state and you could face several years in prison. Contact The Armstrong Law Group, P.A. today for a consultation at 904-356-8618 or fill out an online contact form.Read More
You have seen plenty on the news these days regarding guns used in violent crimes and politicians questioning gun control. But, no one seems to address just where these guns used in crimes come from. As far as the state is concerned, more guns mean more crime. Some states are already taking action (according to a recent Washington Post article) to enact stricter gun control laws to limit how guns are purchased and prevent them from falling into the wrong hands. But, these efforts are easily undermined.
Already the Bureau of Alcohol, Tobacco and Firearms has concluded that most of the guns used in the United States were purchased in other states before being used to commit a crime in a separate state. They compiled data in 2014 showing where guns were purchased and then later used in another state for crimes.
California had more than 1800 guns purchased and used elsewhere, while Texas has more than 2800 and Florida more than 2500. Georgia had the highest number at over 3200 guns purchased in their state, but used in another for a crime. According to this data, the ATF has determined that Georgia is the largest importer of gun crimes in the country.
States with more people will have more gun shops, which is why it isn’t surprising that there were so many purchases in states like California, Texas and Florida. But, it is clear that state populations do not always have the deciding factor. When you look at New York, for example, it has the fourth largest population in the country, but it doesn’t have the highest number of exported guns. Georgia is the 8th biggest state in the country, but is the highest for gun exports.
Some states have stricter gun laws, such as New York, New Jersey, California and Massachusetts.
Once the ATF compared per capita rates to the numbers of guns, it appears that more than 72 percent of guns purchased in one state were used in that same state for a crime – meaning most crimes with guns all stay in the same state or neighborhood.
One interesting thing that came from the ATF’s study is the timeframe. The ATF determine that the time between when a gun is purchased and when it is used in a crime is over 10 years. That means people are not purchasing guns with the purpose of committing a crime; instead, the guns are used much later.
Were You Arrested for a Gun Crime?
Florida has strict penalties for crimes committed with a firearm and often you will be charged with a felony offense. If you have been arrested or you are being questioned for a crime involving a weapon, you need a skilled criminal defense attorney by your side. Contact the Jacksonville criminal defense team at The Armstrong Law Group, P.A. at 904-356-8618 for a consultation. You can also ask us a legal question online by filling out an online contact form.Read More
Forensic evidence has been overplayed and possibly even misrepresented in TV and Hollywood crime dramas. While it is true that DNA evidence is somewhat reliable in a court case and 99.9 percent of DNA sequences are unique, DNA is not infallible, nor is it always 100 percent reliable in court cases. Scientists that analyze a person’s DNA assess the long chain of loci. Loci are used to link a suspect to a case, but they can also be used in a defense strategy to prove a person’s innocence.
Reliability of DNA Testing
Courts have accepted the value and reliability of DNA tests. Courts will also allow prosecutors to search for potential suspects by interviewing those within the DNA databases who have similar DNA to that found at a crime scene.
However, the probabilities of an exact match are easily disputed in court. The FBI itself estimates that the odds of a coincidental match are still possible – while the estimates of those theories do vary. Another reason there is so much variance in DNA reliability is the chemical replication, along with instances of human error that can occur during the testing itself.
The California Supreme Court recently addressed this during a cold hit murder case. In this case, DNA was found at a crime scene that matched the FBI database. The court allowed a rarity statistic to be used in the jury trial, stating that there was a 1 in 930 sextillion chance of finding the same DNA.
What About Other Forensic Evidence?
Other forensic evidence can also be disputed in court, such as hair, fingerprints, etc. This is because forensic techniques have not been subjected to sufficient scientific evaluation, and those that evaluate the forensic evidence can tamper or accidentally contaminate samples, dramatically reducing reliability.
Unlike DNA testing, other forensic disciplines, such as impression marks or fibers, were developed with the sole purpose of criminal prosecutions. Because they were developed for a singular purpose, there is a dramatic absence of scientific standards – and, without sufficient foundational research or adequate standards, it is hard to justify the evidence that is presented in court.
Also, the improper forensic testimony used in criminal trials is up for debate. All too often, an “expert” or “analyst” will take their testimony beyond what the evidence actually shows. For example, consider the scores of individuals who, after serving time in prison, were later found not guilty after DNA evidence came forth to exonerate them – even though these individuals were originally convicted based on forensic testimony, such as fingerprints or shoe impressions.
Bottom Line, Hire a Criminal Defense Attorney
If you have been arrested and the prosecution states that there is forensic evidence against you, you need to contact a criminal defense attorney. Most forensic evidence can be disputed in court and, in some cases, dismissed by a judge. Contact The Armstrong Law Group, P.A. today at 904-356-8618, or fill out an online contact form with your legal questions.Read More
In 2014, Tennessee became the first state to criminalize drug use during pregnancy. This monumental case has impacted women from around the state – and has started to spill over into neighboring states. Since the enactment of this new law, more than 100 women in Tennessee have been prosecuted and sent to jail, though most receive drug rehabilitation and treatment rather than actual jail time.
While this criminal statute is certainly unique, there are many states that will punish mothers for using drugs during a pregnancy, and the penalties for doing so can vary from psychiatric commitment to criminal convictions.
Assaulting a Fetus
While the law generally views a fetus as non-human until it is born, the statute in Tennessee allows for the prosecution of any woman – for an assaultive offense – when they use illegal narcotic drugs while pregnant. If the child is born addicted to that narcotic, harmed by the use, or dies due to excessive use, then the mother can face criminal charges, including homicide.
There is currently a battle over whether or not the law should be renewed – it will expire in 2016 unless it is renewed – and there are some that want to enhance it even further. According to the state, the law has not had any true effect on the rate of drug addicted newborns, though advocates feel the law has not had ample time to work.
Understanding State Pregnancy Laws
While Florida does not use the Tennessee statute, Tennessee is not the only state that will prosecute pregnant women for their drug use during pregnancy. At this time, Florida does not employ any civil commitment laws that allow the state to commit a pregnant woman to psychiatric care for drug use during pregnancy. However, that does not mean that prosecutors cannot find a way around this non-existent statute, and may still attempt to charge you with a crime or send you to a psychiatric care facility.
Arrested for Drug Use During Pregnancy? Contact a Florida Criminal Defense Attorney
If you have been arrested for drug use during your pregnancy, it is imperative that you contact a criminal defense attorney. The Armstrong Law Group, P.A. can assist you with any drug crimes you may face. Contact us for a consultation 24 hours a day, seven days a week, at 904-356-8618, or fill out an online contact form with your questions.Read More
The chain of custody refers to the foundation prosecutors need in order to establish that certain exhibits (or evidence) are admissible to the court. Exhibits are tangible items that are relevant to the facts of the case and help establish the prosecution’s case.
For example, when a person is accused of shoplifting, the stolen goods would be submitted as exhibits in their criminal case.
Prosecutors must prove that a particular exhibit that they wish to enter is what they say it is – meaning that they must prove that the calculator submitted into evidence is the one you actually attempted to steal. That requires proof that they had possession of the evidence at all times, between the date it was seized by the officers to the date it is submitted to the court. This is known as the chain of custody, and this chain has several links that can be easily broken.
The Links Within the Chain of Custody
Criminal prosecutions depend heavily on the evidence that is gathered by police during the investigative phase. Prosecutors, however, are the ones who are required to prove that the chain of custody exists. It is a common, solid defense strategy to attack the links within that chain, showing that officers did not collect evidence properly, or the chain was compromised somewhere along the line. If defense attorneys can establish a missing or broken link, they can then have the judge assess if the evidence is admissible. If a judge decides the chain of custody was broken, that evidence cannot be submitted or used in court.
The chain of custody goes beyond proving that the prosecution was in possession of the exhibit at all times. They must also establish that the evidence submitted is what they say it is. For example, in a cocaine drug case, the prosecutors must prove that the cocaine submitted was tested by a reputable scientific laboratory and proven to be cocaine. Then, they must establish other links within the chain, including:
- The officer who seized the evidence packaged it in a way to distinguish it from other evidence seized that same day or in the same arrest.
- The police stored the evidence in a secure location where no one could have removed it or tampered with it while in storage.
- A qualified expert must testify that the item presented to the court is in fact what the prosecutors say it is.
- The evidence given to and tested by that expert is proven to be one and the same, and it has not been compromised during transport.
- The expert followed all state-required procedures.
- The evidence tested is the same that was brought back to the court for admission.
Speak with an Attorney to Learn More About the Criminal Procedure
The chain of custody is just one of many things involved in a criminal case. If you have been arrested, it is important to contact a criminal defense attorney right away. An attorney can work quickly to gather evidence establishing your innocence, or start building a more effective defense strategy. For a consultation, call The Armstrong Law Group, P.A. today at 904-356-8618, or fill out an online contact form.Read More
Traditionally, if a defendant is under the legal age of 18, they are considered a juvenile and will be tried for their crimes in juvenile court. However, there are circumstances that permit the state to push a youth under the age of 18 through the criminal justice system as an adult. The rules for this are complex, but it is important to note that juveniles are not free from adult prosecution simply because of their age.
How Juvenile Crimes Can be Charged as Adult Crimes
There are three ways in which a case can be transferred from juvenile court to the adult criminal system. These include:
- Direct File – This gives the prosecution the discretion to decide when a case is tried as a juvenile or adult crime.
- Statutory Exclusion – If a juvenile’s crime meets the age and offense criteria of a specific crime, the statutes automatically allow for that crime to be moved from juvenile court into the adult criminal justice system.
- Reverse Waiver – In certain cases, such as homicide, the assumption that a juvenile should be tried as an adult is used, unless the court otherwise determines the child to be tried in juvenile court.
Also, if a juvenile has been tried in the past as an adult, they are typically tried for future crimes as an adult as well. This is because the courts typically take the stance that “once an adult, always an adult” for criminal acts.
What the Law Says
Florida statutes define anyone under the age of 18 as a juvenile. However, Florida prosecutors are allowed to decide if a juvenile is tried as a juvenile or as an adult. For a discretionary waiver, the minimum age is 14 years or older in order for a prosecutor to legally try a juvenile as an adult. Therefore, crimes committed under the 14 year threshold will automatically be seen in juvenile court in regards to discretionary waivers.
For direct filings, however, there is no minimum age. Instead, the age for capital offenses – those punishable by death or life in prison – are left to the sole discretion of the prosecution.
For statutory exclusions, the minimum age is not set, but typically prosecutors will not try individuals under the age of 16 for adult crimes, unless there is reasonable evidence to justify doing so.
The Consequences of Being Transferred to Adult Court
The consequences of a transfer to adult court are extremely serious. A juvenile can be tried as an adult and face the same harsh penalties an adult would – including decades in prison. Additionally, if convicted, a juvenile will have an adult criminal record, which can significantly impact their future in regards to employment, housing, and education.
An adult conviction also means the forfeiture of certain rights – such as the right to vote or own a firearm.
Speaking with a Criminal Attorney
If you are a juvenile being threatened with an adult case, you need an attorney by your side. Due to the serious consequences of being tried as an adult, you need an attorney with experience in the juvenile justice system. Your attorney may be able to assist you in reducing the charges or negotiating to have the case heard in the juvenile court system. Speak with an attorney at The Armstrong Law Group, P.A. today by calling 904-356-8618, or by filling out an online contact form.Read More
An injunction is an order issued by the court that directs another party to take – or directly prohibits them from engaging in – a specific action. These can be issued via a judgment order or in connection with a lawsuit. In some cases, they are also seen in criminal trials.
The Purpose of an Injunction
Injunctions are used as relief from an action, or putting a stop to ongoing or repeated conduct that violates a person’s rights or causes injury. It can also force a defendant or prosecutor to take action. They are a legal remedy that is considered a last resort by the courts and typically only issued when there are no other legal remedies that are adequate for the situation.
Injunctions are not a right; instead, they are issued at the discretion of the court. Whether an injunction will be granted depends on the facts of each case, and there is no guarantee that a specific type of case would receive an injunction.
The Types of Injunctions
There are several main types of injunctions that can be issued by the courts, including:
- Preliminary – These are temporary and used as a provisional remedy to preserve the subject matter in its existing form. They seek to prevent further injury, threats, or any injustice until such time as the rights of the party can be permanently settled in court. They are never granted automatically, but instead are used to maintain the status quo until the final trial.
- Preventive – These direct an individual from refraining to do a particular act. They are also referred to as prohibitive, prohibitory, and negative injunctions. They prevent a threatened injury, preserve status quo, and restrain the continued commission of ongoing wrongdoings.
- Mandatory – These command the performance of a positive act. They are extremely harsh; therefore, courts rarely grant them.
- Permanent – These are used as part of the final relief and are perpetual, provided that the conditions that produced them remain permanent as well.
Contempt of an Injunction
When an injunction is issued, an individual cannot violate that injunction. Doing so could result in a punishment of contempt of court. However, a person may not be considered guilty if they did not know about the injunction. Also, that individual will be issued a trial or hearing to determine if they have violated the injunction and the extent of such a violation. The penalty is at the discretion of the court and will depend on the nature of the violation. Typically, punishment includes fines, jail time, or a combination of the two.
Factors to Consider
Before the courts issue an injunction, they will consider four critical factors:
- They will consider if there is significant harm or threat if the injunction is not ordered. For example, a stay pending appeal for an execution would require the courts to issue an injunction so that the individual was not executed until their appeal has been concluded.
- The courts would then consider the effects of issuing or not issuing such injunction – and how it impacts all parties involved.
- The courts will consider the likelihood of success if they do issue that injunction and if the injunction will succeed on merits at the end of litigation.
- Lastly, the courts will consider the possible effect on public interest.
Speak with an Attorney Regarding Your Case
Injunctions are complex and rarely issued. If you have questions about injunctions or other procedures used in criminal courts, contact an attorney at The Armstrong Law Group, P.A. today. Schedule your consultation at 904-356-8618 or fill out an online contact form.Read More