Articles Posted in Firearms and Weapons Offenses

Drug and weapons offenses represent some of the most commonly charged crimes in Florida. According to the FBI, drug crimes are the #1 basis for arrests, representing nearly 1 in 7 (14%) of all arrests. Sometimes, the way the police go about obtaining the proof necessary to make those arrests violates the law and your constitutional rights. To avoid becoming a statistic, you need a skilled Tampa Bay criminal defense lawyer on your side to get illegally obtained evidence excluded from your case.

One common scenario where this comes up is after the police have made a stop due to a non-criminal traffic violation. A recent Hillsborough case — although technically a delinquency matter — is very useful because it illustrates how the police can overstep and, when they do, how a criminal suspect can get evidence suppressed.

The case originated when law enforcement officers stopped O.W. (a Hillsborough County teen) and another person for riding their bicycles at night with no lights on them. The teen stopped when the officer asked him to. He also gave his name, address, and date of birth when asked.

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In the law, the vast majority of issues are colored in shades of gray. That’s why a knowledgeable Tampa Bay criminal defense attorney may answer so many questions with “It depends.” One thing that is fairly cut-and-dried, though, is the wide latitude the law gives an accused person in putting on a defense at trial.

As an example, we can look at the criminal case of J.A., a police officer in North Miami. In July 2016, J.A., along with a dozen other law enforcement officers, responded to a dispatch call about a man standing in an intersection with a gun in his hand.

J.A. thought the object the man held was a gun and that a second nearby man was his hostage. The officer next to him thought it was a gun. Radio dispatches were not definitive. J.A., a trained SWAT officer, fired three shots.

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Many criminal cases, including those here in Florida, begin not with a police search executed pursuant to a valid search warrant, but with a traffic stop. In a significant percentage of those cases, that initial stop was unlawful, which means that all the evidence obtained as a result of that stop should be suppressed at trial. Getting that gun, those drugs, or other evidence excluded from your criminal case requires a skillfully crafted and coherently advanced motion to suppress, and that represents just one of the multitude of places where a knowledgeable Tampa Bay criminal defense lawyer can make the difference between conviction and acquittal.

Traffic stops have, of course, been in the news lately, including to our north. D.W., a Minnesota man, was pulled over by police and, eventually, was fatally shot by one of those officers. Police said that they pulled D.W. over for an expired license plate but, shortly before his death, D.W. told his mother that he believed the police had pulled him over for the air fresheners hanging from his rearview mirror.

In Minnesota, things like air fresheners and fuzzy dice hanging from your rearview mirror are a valid basis for pulling you over. But here in Florida, the air freshener you have hanging from your rearview mirror cannot be the grounds for a valid traffic stop and, if the police do that, then any evidence they find is something you potentially can get suppressed. We know this because of a 2005 case decided by the Second District Court of Appeal in Lakeland.

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Florida’s “Stand Your Ground” law has been the subject of much commentary from TV talking heads, internet bloggers, and other “armchair attorneys.” Regardless of what one might think about the wisdom of the law, the fact remains that this law may, in the hands of a skillful Tampa Bay criminal defense attorney, provide a person accused of a serious crime a distinct possibility to avoid a conviction.

A recent case from Manatee County illustrates how helpful and far-reaching “Stand Your Ground” immunity can be. In C.C.’s aggravated battery case, it was undisputed that C.C. and her boyfriend, G.B., went out to a Palmetto biker bar, where they met and partied with Mr. C. and Ms. E.

G.B. and C.C. later invited their new acquaintances to their Palmetto trailer home. There, a disagreement erupted between Mr. C. and G.B. That disagreement devolved into a fight.

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For many of us, Mom warned of the dangers of hanging around the “wrong crowd.” While associating with people with “checkered” pasts may have the potential to impact you negatively in some ways, simply being around people with legal issues is not, by itself, usually against the law. If you’ve found yourself arrested and charged based largely upon your having been at the wrong place at the wrong time around the wrong people, you need quality legal representation. You need an experienced Tampa Bay criminal defense attorney working for you to get the acquittal or dismissal that you deserve.

D.T.’s case was an example of a man in that kind of situation. Here’s what happened: Polk County detectives, one June morning, approached a Lakeland house that, they believed, contained the suspect in a Walmart robbery from the night before.

Eventually, everyone exited the house and one detective did a “pat-down” search of each occupant. The detective found a gun in D.T.’s pants. Because D.T. had a criminal past, the state charged him with possessing a firearm as a convicted felon. For a person in a position like D.T., this was more than a minor crime. A conviction could mean D.T. doing anywhere from three years to 15 years in prison.

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915055-gunThe Fourth Amendment to the U.S. Constitution is one of the most important constitutional protections afforded to citizens. That constitutional amendment protects citizens from unreasonable searches and seizures by law enforcement. For example, the police cannot simply pat you down and go rummaging through your pockets for no reason. In fact, there are only a few reasons where they can engage in this kind of search. When they do so without a valid basis, that search is illegal, and the items found in the search should not be allowed as evidence at your trial. Making sure that you are getting the full protection of your constitutional rights requires many things, and one the biggest ones is a skilled Tampa Bay criminal defense attorney.

As an example of how an illegal search can occur, consider the recent case of T.N. two St. Petersburg police officers spotted T.N. sitting at a picnic table in a park that had closed 90 minutes earlier. Based on the park’s closed status, the officers approached T.N. He told them he was just leaving and headed toward his bicycle. The officers commanded T.N. to stop and, eventually grabbed the man’s bicycle so he couldn’t leave. They arrested him for violating a St. Petersburg city ordinance that bans people from being in city parks after hours.

Pursuant to that arrest, the officers searched T.N., at which point they found a concealed firearm and illegal drugs. At trial, the state charged the man with carrying a concealed firearm and two drug possession counts.

Sometimes, Florida can be famous – or infamous – for news stories with strange twists. While some of those twists might elicit a chuckle or two, the possible legal consequences for the subjects of those news articles can be profoundly serious. If you are facing arrest, it’s no joke. Make sure you retain a skilled Tampa Bay defense attorney.

One possible takeaway from a recent South Florida news story is this: if you are going to cut off someone in traffic in Miami-Dade County, make sure it isn’t a law enforcement officer. One man made that mistake and found himself the subject of a traffic stop, according to a recent Miami Herald report. Once the police initiated the traffic stop, they found several things they deemed suspicious inside the man’s car. These included six guns, several bottles of strong cough syrup (without a prescription), suspected marijuana oil and nearly $20,000 in cash.

The Herald report also noted that the police proudly touted the bust on a local TV station. “It’s amazing how something as simple as a traffic stop can lead us to crack a lot of cases,” the police told CBS 4. There was one not-so-small problem: it wasn’t a “good” bust.

Everyone is entitled to receive justice, whether they are perfectly innocent or less so. The not guilty are entitled to acquittals, and the guilty are entitled to punishments that fit their crimes. To this end, it is important to ensure that criminal defendants are not charged with (and convicted of) more severe crimes than the actual facts dictate. A skilled Florida gun crime lawyer can help you make sure that the result of your criminal case is a just one.

One recent example of a case in which the facts didn’t support the crime was the trial of Phillip. One night in Orange County, Phillip waved a man over to his car, and, when the man approached, Phillip brandished what looked like a double-barrel shotgun. He demanded that the man give him his wallet, and the victim complied. Police caught up to Phillip later, and, when searching his car, they found the double-barrel of a shotgun. What the police did not find, however, were any other parts to a shotgun. No receiver. No stock. No firing mechanism. Just the barrel.

The accused man admitted that he robbed the victim but denied that he used a real gun in the process. The state, however, still charged Phillip with the crime of robbery with a weapon in violation of Section 812.13(2)(b) of the Florida Statutes. At the conclusion of the trial, Phillip was convicted.

In part one of this blog, we discussed the history and background of Florida’s “Stand Your Ground” law and what it means. In this section, we will be discussing both the potential charges Mr. Zimmerman, the alleged shooter, may be facing as well as if this law itself even applies…What are the possible charges that George Zimmerman faces?

As of this writing, no arrest has been made in this case. Police continue to investigate with no hint of what direction they are leaning to. The most obvious charge is murder. In Florida, murder can be of varying degrees, often depending on if the act was premeditated. If the police determined that Mr. Zimmerman acted with negligence in the killing of Mr. Martin, under Florida law, her could be charged with manslaughter. Mr. Zimmerman could possibly face federal charges if the federal government decides to get involved (possibly through a civil rights violation). Finally, it is important to remember that this is all conjuncture, no charges have been filed yet and Mr. Zimmerman is innocent until proven guilty.

Does Florida “Stand Your Ground” Law apply?

The short answer is…nobody really knows! This law prevents prosecution for murder or other criminal charges but ONLY if George Zimmerman was not the instigator. Using a hypothetical, suppose George Zimmerman repeatedly followed and harrassed Trayvon Martin or if George attacked Trayvon. Then pretend Trayvon started to fight back or retaliate against George. This law could not be used as a defense by Mr. Zimmerman because in that scenario, HE was the instigator and did not try to retreat from the situation. Contrary to many media depictions, this law is not a “get out of jail” card that you can use just because you started a fight and began to lose!

However, suppose Mr. Zimmerman was following Mr. Martin and Trayvon then began to get aggressive towards George. George then retreats but Trayvon continues to attack. If Mr. Zimmerman has a reasonable fear that he may suffer death or great bodily harm, that law may now apply.

The truth is we may never know what occurred that night. Already, there has been much inacurate media portrayals of both parties. All we can hope for is that justice will be done…
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By now, the whole country has heard about the Trayvon Martin shooting. As of this writing, the facts are still being sorted out and the accused shooter, George Zimmerman, has yet to be arrested. However, there has been much outrage and blame directed towards Florida’s “Stand Your Ground” law. The real question remains…does this law even apply to the facts as we know them?

F.S. §776.013(3) – Florida’s “Stand Your Ground” Law
“A person who is not engaged in an unlawful activity, and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony”.

As I am a criminal defense lawyer, I have been recently asked to explain Florida’s so-called “Stand Your Ground” law. To explain how we got here, we first need to know where we have been. That takes us to Florida “BSYGL” or “Before Stand Your Ground Law…Before the 2005 passing of Florida’s “Stand Your Ground”, a person could only use non-deadly force to defend against the imminent use of unlawful non-deadly force. The only time deadly force was authorized was to defend you or another against immediate deadly force/ great bodily harm. The use of deadly force was also allowed to stop the commission of a forcible felony.

A previous law, the so-called “Castle Doctrine” provided that a person had no duty to retreat prior to using deadly force against an intruder only if you were in one’s home or workplace. You would still need a reasonable belief that deadly force was necessary to defend against great bodily harm, deadly force, or the commission of a forcible felony (such as a robbery or sexual assault). Unlike the later “Stand Your Ground” law, you had a “duty to retreat” prior to using deadly force.

Florida ” ASYGL” or “After Stand Your Ground Law”

This “Stand Your Ground” Law introduced two (2) presumptions that would favor a criminal defendant who is making a self-defense claim:

1.The presumption that the defendant had a reasonable fear that deadly force was necessary; and 2.The presumption that the intruder intended to commit an unlawful act involving force or violence.

These two presumptions protect the defendant from both civil and criminal prosecution for any unlawful use of deadly or non-deadly force in self-defense. Additionally, the defendant/gun owner has no duty to retreat, regardless of where he is attacked, as long as he is in a location he is lawfully entitled to be when the danger occurs.

Florida’s “Stand Your Ground” Law acts as a “presumption of innocence” from prosecution, as opposed to an affirmative defense that you would need to assert in Trial (after being arrested and charged by the State of Florida).

So the question remains…Is this “Stand Your Ground” law in any way responsible or encouraged the killing of Trayvon Martin? Part Two of this blog will talk about both the potential crimes that the shooter may be charged with as well as if this law applies…
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