Constitution - Bill of Rights Category Archives — Page 6 of 12 — White Collar Criminal Defense Lawyer Blog Published by Miami, Florida White Collar Criminal Defense Attorney

Published on: March 29, 2018

No liability verdict upheld in Police shooting

In Knight v. Miami Dade two Miami Dade Police officers discharged their firearms at the SUV Cadillac driven by the plaintiffs killing both plaintiffs. The estate filed a complain against the officers and the Miami Dade police department for various civil rights violations and claim arising under Florida state law and this is an appeal form lower court rulings against the Plaintiffs. The plaintiffs were driving in the Cadillac after leaving a Miami night club. A police care began to follow them when they allegedly ran a red light. The plaintiffs denied running any red lights. The officers attempted to make a traffic stop using their PA system, but the care kept driving. When the Cadillac came to a stop at a dead end. The plaintiff’s witness who was a passenger said in a deposition that the car was not moving, decedent’s hand was on his side, and shots were fired into the car. However, in a statement made just after the incident the witness said that Plaintiff started backing up toward the officers and they began firing into the moving vehicle. As the care reversed it collided into the police car.

The case ultimately went to trial on the 1983 civil rights claim and the assault and battery claims against the officers

In the appeal the plaintiffs argue that there were six errors that entitle them to a new trial. The issues raised include the admission of evidence from the defendant’s police practice expert, the exclusion of the plaintiff’s ballistics and reconstruction experts, the exclusion of evidence showing violations of the Police Department’s pursuit policy, the refusal to give a specific jury instruction, the admission of some criminal history evidence, and the failure to address the prejudicial nature of the defendant’s opening and closing statements.

Published on: March 23, 2018

New trial ordered in civil rights lawsuit for officer shooting

by The Swartz Law Firm

In this civil rights lawsuit involving an officer shooting, the plaintiff, Evett Stephens, claimed a constitutional violation as a result of the excessive force used against him by Palm Beach Sheriff deputy Adams Lins as an individual and against Sheriff Ric Bradshaw in his official capacity as the sheriff of Palm Beach County. This is how the facts unfolded. Deputy Lin was on police duty monitoring traffic during school bus pickups observed Stephens riding his bike on the wrong side of the road. Deputy Lin decided to stop Stephens for some reason. Stephens claimed he was holding a cell phone to his ear while riding his bike prior to the stop. Lin says he never saw the cellphone. Upon hearing the sirens of Lin’s patrol car Stephens dismounted from is bike. Lin instructed Stephens to walk toward him while showing his hands. According to Lin, Stephens turned away from Lin as he began to approach Stephens. As soon as Stephens turned away, Lin shot Stephens four times leaving him a paraplegic.

The district court granted a summary judgment in favor of Sheriff Bradshaw as to the Monell claim against him following a length hearing. At trial, the jury returned a verdict against Lin for the 1983 excessive force claim and against Sheriff Bradshaw for the state court battery claim.

Published on: January 6, 2018

Search warrant for Facebook account flawed but not enough to overturn a sex-trafficking conviction

by The Swartz Law Firm

Defendants Blake and Moore were convicted of child sex trafficking two underaged girls. The case arose when FBI investigations discovered that ads for prostitution services were posted on the classified website Backpage. Moore would take phone calls from potential customers who were responding to the ads and Blake would drive the girls to their appointments and provide muscle. The money was split 50/50 between the prostitute and the Blake and Moore. The FBI learned that Backpage ads had been posted using email address which the FBI learned had belonged to Moore.

In the course of the investigation the FBI executed a seize and search warrant electronics in Blake and Moore’s townhouse however the FBI could not access the Apple Ipad tablet seized due to its security features. The FBI requested and received a district court order issued under the All Writs Act 28 U.S.C 1651(a) (the Bypass Order) requiring Apple Incl to assist the FBI in bypassing the iPad’s passcode lock and other security features. The FBI also obtained a search warrant directing Microsoft which own \s Hotmails to turn over emails from Blake and Moore’s email accounts, specifying emails linked to the sex trafficking charges. Finally, the FBI applied for and received search warrants for Moore’s Facebook account requiring disclosure of every type of data that could be found on Facebook account including every private instant messaging.

The defendant’s appeal challenged the Bypass Order on the grounds that the order exceeded the authority granted by the All Writs Act, 28 U.S.C. sec. 1651(a). Though the court of appeals did not rule on whether they had standing to challenge the writ against Apple, the court found that the defendant’s challenge of the Bypass Order failed because it was necessary or appropriate to carry out the search warrant issued, the assistance sought was no specifically addressed by another statute, the bypass order was no inconsistent with Congress’ intent, Apple was not too far removed from the underlying controversy, and the burden the order imposed on Apple was not unreasonable.

Published on: December 26, 2017

Terrorist conviction and sentence upheld

by The Swartz Law Firm

Sami Osmakac was convicted and sentenced to 42 years in prison following a 10-day trial for attempting to carry out a terrorist plot in Tampa, Florida, and for possessing a firearm not registered to him. After the F.B.I. received a tip from a confidential informant a store owner selling trinkets and food items from the Middle East, reported that Osmakac asked about purchasing black flags referring to flags used by a variety of Islamist political movements, the store owner became a confidential source of information after gave Osmakac a job in his store. The F.B.I. began recording numerous conversations in which Osmakac discussed his plans to commit a several violent terrorist attacks in the Tampa area. Osmakac also made attempts to obtain guns from various individuals. Osmakac was charged in a two count indictment with committing one count of knowingly attempting to use weapons of mass destruction, specifically explosives grenades and similar devices in violation of 18 USC 2332 and with possessing a firearm not register to him ,specifically a AK-47 machine gun in violation of 26 USC 5861(d).

Prior to trial, the government informed Osmakac it planned to offer evidence of information obtained from electronic surveillance conducted pursuant to the Foreign Intelligence Surveillance Act (FISA) during the time that Osmakac was being observed. Osmakac filed a motion asking the trial court to order the government to disclose certain FISA materials including the underlying search warrant applications and orders issued by the FISA Court. The district court reviewed the requested materials, in camera and ex parte, and determined that there was no valid or legal reason for disclosing any of the FIA materials. Osmakac challenged the district court’s decision denying him access to the FISA applications and supporting documents and the FISA Court’s order authorizing the surveillance of Osmakac, who was a U.S. citizen. Osmakac argued that he wanted to review the applications and orders to determine whether the surveillance and searches were in fact legal.

Published on: September 1, 2017

Entering defendant’s home under the ruse of investigating a reported burglary not a Fourth Amendment violation

by The Swartz Law Firm

In U.S. v. Spivey, the defendants Spivey and Austin reported to police their home had been burglarized. When the police caught the burglar, he informed them that this residence was the site of substantial credit-card fraud and much high-end merchandise was kept there.

Two South Florida Organized Fraud Task Force members began investigating credit card fraud by the defendants and they went to the residence on the pretext of acting as detectives investigating the two burglaries. The detectives wore a police jacket and displayed a gun and badge. When Austin saw the agents approaching she went inside to warn Spivey and told him to hide the card reader/writer in the oven.

The agents told Austin they were there to follow up on the burglary and Austin invited them in. They told Austin that one of the detectives was a crime scene technician and maintained the façade by pretending to brush for latent fingerprints. Austin led the agents through the house and pointed out their home surveillance video of the burglary. Inside the home the officers observed evidence of fraud including a card embossing machine, stacks of credit cards and gift cards, large quantities of expensive merchandise such as designer shoes and iPads. They both told the officers that the embossing machine had been left in the apartment before they moved in.

The officers then ended their ruse and told Spivey that they investigated credit-card fraud. After being advised of his rights, he gave written consent to the officers to conduct a full search of the home and of his computer and cell phone. In that search, the officers recovered high end merchandise, drugs, a handgun, and embossing machine, a card reader/writer and about seventy-five counterfeit cards. The defendants were indicted and both challenged the search with a motion to suppress all the evidence found on the grounds of a Fourth Amendment violation. The district court denied the motion and the defendants appealed.

Published on: July 22, 2017

Fugitive defendant in Saudi Arabia cannot challenge his kidnapping charge from outside the United States

by The Swartz Law Firm

In U.S. v. Shalhoub the court addressed the issue of whether the denial of a motion for special appearance of counsel to seek the dismissal of an indictment on the ground that the defendant is a fugitive from justice is an immediately appealable collateral order. If not then the issue becomes whether the court should issue a writ of mandamus to compel a ruling on the motion to dismiss the indictment without requiring the defendant to appear.

This is how the facts unfold. Shalhoub, a citizen and resident of Saudi Arabia married a woman in Miami in 1985 and divorced four years later. A Florida judge gave Shalhoub and his ex-wife full shared parental responsibility over their only child. Shalhoub was indicted in 1997 for one count of parental kidnapping in violation of the International Parental Kidnapping Crime act, which made it a crime to remove a child from the United States with intent to obstruct the lawful exercise of parental rights. He was never arrested and status was fugitive.

In 2015, Shalhoub filed a motion in Miami federal criminal court to allow his counsel to appear specially and seed a dismissal of the indictment arguing that the incitement lack factual specificity, challenge the Venue of the federal kidnapping law as contravening the laws of Saudia Arabia, along with other challenges.

Published on: July 15, 2017

An attorney’s seven-minute absence from the trial did not violate the client’s Sixth Amendment.

by The Swartz Law Firm

A three-judge panel was reversed in U.S. v Roy by the En Banc court and the defendant’s conviction in federal court in Miami was reinstated for reasons explained below. Here is what happened at the trial.

Roy was charged in a five-count indictment with sext crimes related to minor girls. Count one charged him with attempting to enticed a child base on his efforts to arrange a sexual encounter with someone he believed to be a 13-year-old girls in response to an interne ad posted by law enforcement. The other counts involved child pornography and charged him with knowingly possessing visual depictions of child pornography in violation of the federal statute. Each of those counts involved images that were stored in different electronic devices he kept. The charge required that the government prove that under each of the counts he knowingly possessed one or more images of child pornography on the electronic devices.

The issue here, which was the reason for the panel’s decision to overturn the conviction, involved Roy’s federal trial lawyer’s absence during a small a portion of the testimony of the trial.

The En Banc Court concluded that it was a Sixth Amendment constitutional violation for the trial judge to start the trial without the attorney present, but that the error was harmless beyond a reasonable doubt because of the overwhelming evidence offered while counsel was present that went to and proved the charges in counts 2 through 5, which were the only counts relevant to the testimony given during counsel’s absence. The error in the trial took place when his counsel returned a few minutes late from a lunch break on the third day of the six-day trial.

Published on: May 27, 2017

Force used by deputy in arresting Plaintiff was excessive in view of the circumstances of the arrest

by The Swartz Law Firm

In Stephens v. DeGiovanni, the Plaintiff Stephens filed a lawsuit against Deputy DeGiovanni of the Broward County Sheriff’s Office arising out of his arrest. Two of his claims raised in this appeal for false seizure (arrest) and excessive force pursuant to 42 U.S.C. §1983. In this appeal to the Eleventh Circuit court of appeals, Stephens challenged the trial court grant of summary judgment to the deputy on the false arrest claim there was probable cause for the arrest. The trial judge also granted summary judgement on the excessive force claim because the force used in the arrest was de minimis.

The facts surrounding this arrest took place on February 16, 2009 in Fort Lauderdale, Florida in an apartment complex where Stephens and his cousin were guests of the cousin’s girlfriend, Claudia White. White’s apartment was on the second floor of a complex with businesses on the first floor and apartments on the second floor. Stephens and his cousin were checking on a car owned by Stephens girlfriend that she was planning to sell to White. White, who is a car mechanic, was sitting on the metal frame of the care using a diagnostic scanner to determine why a check engine light had come on.

Deputy DeGiovanni was on road patrol at 8:15 pm and aware of recent burglaries in the area. Because it was late and all the businesses were closed he decided to investigate so he approached and asked what they were doing. After they explained what they were doing, the deputy informed them that they were not supposed to be there. They explained they were invited guest of White who lived at the complex. The deputy asked for identification and Stephens produced a State of Florida identification card. He possessed a driver’s license issued in Jamaica where was from. While standing by the deputy Stephen’s phone rang. When he answered it the deputy slapped it away. When Stephens asked the deputy to get a field supervisor on the scene, the deputy told him to shut his mouth. The deputy then slugged Stephens in his chest slamming him into the driver’s seat. The deputy proceeded to hit Stephens two more times causing injury to his hand and arm.

Published on: May 20, 2017

Police officer’s stop of a driver for a partially obscure license plate upheld following fourth amendment challenge

by The Swartz Law Firm

McCullough was arrested and convicted for marijuana distribution. His conviction was affirmed by the Eleventh Circuit Court of Appeals in United States v. McCullough. This is how the facts unfold. He was initially pulled over by an Alabama police officer for driving with a partially obscure license plate. While the numbers on the Alabama issued plate were visible, a license bracket in the shape of an eagle with outstretched wings obscured pares of the license plate including the state of issue. Alabama law provides that every motor vehicle operator shall at all times keep the license tag or license plate plainly visible on the rear end of a mother vehicles. The officer stopped McCullough because the officer believe that he had violated this law by having the eagle bracket. When McCullough was stopped, the officer issued him a ticket for failing to have a plainly visible license plate.

The officer then smelled marijuana coming from the inside of the truck and a search of the truck led to the discover of $8,335 and a marijuana. After the officer seized $4,000 and a key to a hotel room, the officer obtained a search warrant for the room and found $1,000, bags of marijuana and a gun.

He was charged with possession with the intent to distribute marijuana, possession of a firearm in furtherance of a drug trafficking crime, and being a felon in possession of a firearm. He moved to suppress on the grounds the officer lacked probable cause or reasonable suspicion to stop him for partly obscuring the license plate because Alabama law only requires that the alphanumeric symbols be visible not the full license plate. The district court denied the motion. He pleaded guilty to each count before a magistrate judge. Prior to sentencing the probation officer calculated the guideline range to be 262-327 base on his status as a career offender with a career history e category of VI and a consecutive mandatory minimum of five years for being a felon in possession of a firearm.

Published on: April 29, 2017

No fourth amendment violation where a traffic stop did not exceed the time needed to handle the matter for which the stop was made

by The Swartz Law Firm

In U.S. v Vargas the defendant was charged with conspiracy to possess with intent to distribute and possession of cocaine after Alabama law enforcement officers discovered cocaine and methamphetamine in Vargas’ vehicle. Vargas filed a motion to suppress on the grounds that Vargas’ traffic stop that led to the discovery of the drugs violated Fourth amendment.

Here, Alabama law enforcement officer pulled over the defendant for following too close and failing to maintain its lane. The driver immediately admitted that he did not have a driver’s license. The officer asked him to come back to the officer’s car where the officer asked him routine questions about where he was going. After about three minutes the officer informed him that he was issuing him a warning for following too close. He continued to ask defendant some questions to complete the warning. He then approached the passenger to determine whether he could operate the vehicle. When the passenger said he did not have a license, the officer spent another 12 minutes working with the two in an attempt to determine how to safely and legally get the car moved. About 18 minutes into the traffic stop and 15 minutes after the enforcement officer informed he was issuing a warning, the officer asked the defendant for consent to search the vehicle and the defendant consented. The search turned up the drugs hidden in the vehicle.

The defendant contended on appeal that the length of the traffic stop violated the fourth amendment. The court cited the Supreme court’s opinion in Rodriguez v United States which states as a general matter a traffic stop exceeding the time needed to handle the matter for which the stop was made is a violation of the Constitution’s shield against unreasonable seizures.