March 2011 Archives

March 28, 2011

Drug Trafficking Arrest Results from Traffic Stop

In many cases, simple traffic citations lead to drug possession and drug trafficking arrests. Last week, police officers from the Lee County Sheriff's Department stopped a car traveling northbound on I-75, near Fort Myers, Florida. The police stopped the driver of a 2001 SUV for having illegal window tints on the front a back windows. Miami criminal defense lawyers that represent individuals charged with drug possession and drug trafficking charges can share many stories of clients being charged with serious drug related offenses that occurred as a result of a what amounted to a simple traffic stop. In this case, three people were present in the vehicle at the time of the stop. Upon making contact with the driver, officers noticed a strong smell of marijuana emanating from the vehicle. A K-9 dog was summoned to the scene and alerted to the presence of illegal narcotics within the vehicle.

Anyone stopped for a traffic violation should know that a police officer conducting the stop does not have the right to search an occupant of the vehicle or the vehicle itself unless he or she has probable cause to believe that a person is in possession of an illegal substance or the vehicle itself contains illegal contraband. A law enforcement officers can establish probable cause by several means. The driver or passenger in the vehicle can admit that he or she possesses an illegal substance or that an illegal substance is present in the vehicle. Statements of this nature can provide the police with the probable cause to search an occupant or the vehicle itself. Police can also establish probable cause if they smell an illegal substance such as marijuana coming from the vehicle. K-9 units can be used to establish probable cause if specially trained narcotics dogs alert to an occupant of the vehicle or to the vehicle itself.

After the K-9 alerted to the vehicle, the search revealed a large quantity of marijuana, ecstasy based amphetamine powder and nitrous oxide gas. All three defendants were arrested for possession of marijuana more than 20 grams, one count of trafficking in phenethylamines, possession of nitrous oxide and possession of drug paraphernalia. The only serious charge is the drug trafficking offense which carries a three-year minimum mandatory sentence. While the defendants are facing serious charges, it remains to be seen if the state can actually prove the charges. It is important to know where the drugs were found and who was the owner of the vehicle. To prevail in ths case, the state must be able to prove that the individuals arrested in this case had knowledge that the vehicle contained the illegal substances. Of course, these facts become less important if any those arrested provided confessions regarding the drugs.

There are useful tips that should be taken away from the article. First, never transport or do drugs in a vehicle. If the police have any idea criminal activity of this kind is taken place, they will not need to obtain a warrant to conduct a search, because unlike a home or a residence, the automobile exception to the warrant requirement will allow for an almost immediate search of a vehicle. Secondly, unless you are absolutely sure, never consent to the search of vehicle as the police may find something you forgot about or that you did not even know you had in the vehicle. Never, give a statement to law enforcement, as confessions only further damage the ability to defend a criminal case. Be pleasant, but request the presence of a lawyer at the time of questioning. While this will aggravate the investigating officer, the only person you should talk to is the lawyer you eventually hire to defend your case.

Traffic Stop Leads to Three Arrests on Drug-Related Charges, Cape Coral Daily Breeze.com, March 24, 2011.

March 22, 2011

UM Football Player Arrested in Coconut Grove

A starting linebacker for the Hurricanes was arrested for a variety of charges which allegedly occurred at a Coconut Grove Bar on St. Patrick's Day. The arrest affidavit accused the star University of Miami player of attempting to head butt a police officer and after being arrested told officers that he was a UM player and that because of his status he would get out of trouble. Ramon Buchanan is scheduled to make his first court appearance at his arraignment on April 18th before a Miami-Dade County circuit court judge. According to court records, Buchanan has not yet retained a Miami criminal defense lawyer to defend the case.

Buchanan was arrested on felony counts of resisting an officer with violence and battery on a law enforcement officer (LEO). He was also arrested on misdemeanor counts of disorderly conduct, resisting a police officer without violence and trespassing. Buchanan is the first UM player to be arrested since now Purdue quarterback was arrested in 2007 for criminal mischief and fleeing and eluding a police officer. Despite being fired last year, former UM coach Randy Shannon was credited with cleaning up a program that was replete with criminal arrests. While there have been no recent arrests, six players have been recently suspended for the 2011 opening game against the University of Maryland.

As long one can remember, Coconut Grove has been an area known for its bars and partying crowd. Along with the fun comes overzealous City of Miami Police officers that have made countless arrests of truly innocent defendants. Many of the those arrested in the "Grove" are tourists and first time offenders. The first step in defending these types of cases is to gather the names of the officers involved in the arrest. The internal affairs (IA) records for all of the officers involved should be ordered through a public records request. It is a safe bet that many of the officers have been reprimanded for using excessive violence against individuals. Anyone arrested in the Grove should provide a list of witnesses who were also present at the scene of the arrest to their criminal defense attorney in order to refute the testimony of the officers. To prepare the case, depositions of all the police officer witnesses should be taken to establish contradictions in their testimony.

While most battery on a law enforcement officer and resisting an officer with violence cases can be broken down, a well-prepared defense should at a minimum result in a referral to the pre-trial intervention program (PTI). PTI is a program offered by the state attorney's office to first-time offenders where a defendant can enroll and complete certain conditions required by the prosecutor. Once the conditions have been successfully completed, the state will nolle pros or dismiss the charges against the defendant. Once the case has been dismissed, a defendant will be able to expunge of clear his or her record. Of course, just because PTI has been offered, there is no requirement to enroll in the program and case can be taken to trial to secure an acquittal. Prior to taking the case to trial, the strengths and weaknesses in the case must be properly evaluated to determine the likelihood of success in front of a jury.

Arrested Miami Hurricanes LB Ramon Buchanan Tells Cops: "I'm a UM Football Player...I'll Get Out of It.", Palm Beach Post.com, March 22, 2011.

March 16, 2011

Court Officials Concerned About Budget Cuts

Court officials and judges alike are concerned about the budget proposals that will be discussed when the legislation meets this month. The reduced funding and budget cuts have already severely affected the criminal justice system in South Florida and Miami-Dade County. Some are worried that further budget cuts could cause the system to come to grinding halt. Miami criminal defense lawyers are finding longer lines at the clerk's offices and larger dockets on the judges' calendars. Some people will benefit from the delays while others will suffer as a result. Victims seeking domestic violence injunctions will wait longer to present their cases to magistrates. Defendants will benefit because delays in criminal cases always benefit the defense to the detriment of the prosecution.

The general rule is that the longer a defendant can delay a case, he or she will receive a better result. First and foremost, cases involving civilian victims and witnesses often fall apart over time. Victims and witnesses alike lose interest in criminal cases over time. Examples of these types of cases involve charges of aggravated battery and aggravated assault. Domestic violence cases also tend to fall apart as victims and defendants have time to reconcile their issues. Generally, all types of narcotics cases from drug trafficking to drug possession get better over time. Detectives memory fades regarding facts surrounding arrests and the investigators tend to lose interest in cases over time.

The budget proposal submitted by the governor recommends a $40 million cut from last years budget. The cuts involve reducing the payroll by about 600 jobs. Most of the job cuts include staff attorneys or judicial assistants (JA's). JA's act as judges' secretaries and are responsible for calendaring motions and hearings on the court's docket. Currently, each judge is assigned one JA. Under the proposal, one JA will be assigned to two or three judges. This in and of itself will jam up the current court docketing system, causing delays in resolving cases. Miami-Dade Chief Circuit Judge holds the same opinion and was quoted as saying, "The current proposals will create a never before seen level of inefficiencies in our court system."

Public defenders offices across the state are also concerned. Already overworked and underpaid, a reduction in the number of criminal defense attorneys acting assistant public defenders will also jam up the criminal justice system. The reductions could also cause cutting the number of assistant state attorneys prosecuting cases across the state. The reduction in the number of assistant public defenders and assistant state attorneys will delay cases as fewer attorneys will be available to complete the discovery process at the current pace. Opponents of the budge cuts complain that the reductions will jeopardize the safety of citizens throughout the state. The true ramifications of the new budget will only be known after the legislature decides how best to spend the taxpayers money.

Judges, Court Officials Warn of Justice Delayed if Judicial System is Cut Significantly, TCPalm.com, March 7, 2011.

March 8, 2011

Bills Submitted to Eliminate Minimum Mandatory Sentences on Drug Trafficking Cases

The Florida legislature will consider two bills aimed at eliminating minimum mandatory sentences on drug trafficking cases. For years, defendants charged with drug trafficking offenses, such as marijuana trafficking, cocaine trafficking, heroine trafficking and trafficking in prescription medications face draconian sentences if convicted of these types of offenses. Miami criminal defense lawyers have struggled for years with cases involving minimum mandatory prison sentences. It has always been difficult to obtain waivers from the state. Even first-time offenders faces the stiff penalties surrounding the minimum mandatory sentences.

Until the Miami-Dade State Attorney's Office revamped its narcotics unit, defense attorneys seldom had less difficulty getting division prosecutors to waive the minimum mandatory sentences. Currently all requests for minimum mandatory waivers must be reviewed by the narcotics unit prosecutors and approved at the highest levels of the state attorney's office. Generally, waivers are only granted if the defendants agree to cooperate with law enforcement officers or if there are significant defects in the case itself. Minimum mandatory sentences will be waived if there are search and seizure issues involved with the case. For example, questionable searches or arrests made in violation of a defendants constitutional rights will often lead to waivers of the harsh sentences.

Due to the drug trafficking problems that existed in Miami in the late 80's and early 90's, the legislature passed laws that put the minimum mandatory sentences into effect. For example, cocaine trafficking in excess of 400 grams carries a 15 year mandatory sentence, trafficking in excess of 28 grams of heroine carries and 25 year mandatory sentence and oxycodone trafficking in excess of 28 grams carries a 25 year mandatory sentence. Mandatory sentences refer to sentences that are the minimum that a court can sentence a defendant to in the event of a conviction. Mandatory sentences also require defendants to serve every day of the sentence imposed. Generally, defendants only serve 85% of the time for which they are sentenced. Mandatory sentences require defendants to serve 100% of the sentence imposed by the court.

The removal of mandatory prison sentences would provide defense attorneys with more flexibility in resolving cases for client. The change in the law would also give more flexibility to prosecutors to resolve cases by allowing them to offer pleas well below the mandatory sentences. The removal of the mandatory sentences would then allow plea negotiations to begin with guidelines set forth under the Florida statutes which when calculated are far below the mandatory sentences. Rather than starting with the mandatory sentences, defendants would begin plea negotiations at the bottom end of the guideline range. The comments above are in no way meant to infer that defendant arrested on trafficking charges should enter guilty plea. Rather, drug trafficking cases should be fought even if it eventually requires a jury trial. However, well prepared cases with viable motions to suppress or motions to dismiss should be fought until a favorable plea is offered or until the case is set won at trial.

Proposed Bills Would Eliminate Mandatory Sentencing for Drug Trafficking, Florida Independent.com February 24, 2011.

March 1, 2011

Immigration Arrests Illegal Immigrants in South Florida

Immigration and Customs Enforcement (ICE) arrested 19 people who are now sitting in federal custody. The sweep targeted illegal immigrants with criminal convictions for drug trafficking, sex crimes and violent offenses. The individuals will be held in federal custody until the removal proceedings are completed. All those detained have the right to be retained by a Miami criminal defense attorney. Unlike criminal court, detainees will not be appointed a criminal lawyer from the public defender's office. However, theses individual can privately retain counsel in an effort to get a bond pending the removal proceedings. Keep in mind that federal judges will seldom grant this kind of relief at a bond hearing.

The best way to fight an immigration detainer is to attack the criminal case which most likely arose in state court. Illegal immigrants are deported for serious crimes such as armed robbery and sexual battery, but an individual charged with a minor felony offense, such as cocaine possession can be deported. Even misdemeanor offenses such as possession of drug paraphernalia or two marijuana possession offenses can result in deportation. Also know that federal immigration law does not differentiate between a conviction or a withhold of adjudication. The only way to successfully lift an immigration detainer and prevent deportation is by filing and winning a motion for post-conviction relief.

Motions for post conviction-relief can be based on many grounds. The goal of these types of motions is to have a formerly entered into plea vacated or set aside. Always remember, even if a plea is vacated or set aside, the case is just re-opened and then set for trial. The ultimate goal after a plea is vacated is to have it dismissed or nolle prossed by the prosecutor. Two documents are required to be presented to a federal judge in order to prevent deportation. First, an order vacating the plea signed by a circuit or county court judge must be presented. The order must state that the original plea was taken in violation of the defendants rights, either because the proper procedure was not followed, the defendant's constitutional rights were violated or the criminal defense lawyer representing the defendant was found to be ineffective.

An example of a procedural violation includes incomplete plea colloquys where a defendant is not advised of his or her right to be represented by an attorney or not advised of the right to take the case to trial. These are also examples of constitutional violations that can lead to a successful motion for post-conviction relief. Ineffective assistance of counsel can come in many forms, but failing to advise a client of possible deportation or providing affirmative mis-advice regarding the immigration consequences of entering a plea can be sufficient grounds to vacate a plea. Note that recent appellate courts in the State of Florida have held that even if a defendant was not advised by the attorney of immigration consequences or was provided affirmative misadvise, the judge can cure the problem simply by inquiring during the plea colloquy if a defendant understands that by entering into a plea could subject them to immigration consequences such as deportation. Anyone facing deportation for prior criminal acts should seek the advise of both an immigration and criminal defense lawyer in an effort to resolve the problem.

South Florida Immigration Sweep Nets 24 Arrests, Miami Herald.com, February 26, 2011.