The United States Constitution

With The Advice And Consent Of The Senate

With the nomination and Supreme Court confirmation hearings of Judge Brett M. Kavanaugh, the Senate confirmation process of Supreme Court nominees has been much in the news.

Article II of the United States Constitution states that the President shall have to power, with the advice and consent of the Senate, to nominate Judges to the Supreme Court.  So, under the U.S. Constitution, the power to put a Supreme Court justice on the bench is shared by both the President and the Senate.

Alexander Hamilton was a proponent of dividing the power to select Supreme Court Justices between the President and the Senate.

According to Alexander Hamilton, who was a signatory to the Constitution, giving the President the sole power to put a judge on the Supreme Court would not be wise as the President “would be governed much more by his private inclinations and interest.” So, the founders wisely decided to divide this power between the President and the Senate.

In modern history, when the President nominates a person to the Supreme Court, the Senate Judiciary Committee holds hearings and questions the nominee.  This process has frequently been contentious.

Thurgood Marshall became a Supreme Court Justice in 1967, and served until 1991.

Thurgood Marshall became a Supreme Court Justice in 1967, and served until 1991.

In June of 1967, President Lyndon Johnson nominated the first African American to the Supreme Court, Thurgood Marshall.  As an attorney in 1952, Marshall, had successfully argued the landmark school desegregation case of Brown v. Board of Education before the Supreme Court.  At his Senate confirmation hearings in 1967 Marshall faced intense opposition from the chairman of the Senate Judiciary Committee, Senator James Eastland of Mississippi, who was a staunch segregationist.  Nevertheless, Marshall performed well at the hearings and the Senate confirmed him.

The Senate does not always go along with the President’s pick.  Since the Constitution went into effect, the Senate has voted to reject the President’s nominee 12 times. The last nominee to be defeated in the Senate was President Regan’s pick in 1987, Judge Robert Bork.  However, as in the case of President Obama’s 2016 nominee to the Court, Judge Merrick Garland, sometimes the Senate takes no action on a nominee, and the nominee is not confirmed.

Which justices sit on the Supreme Court has a profound influence upon the development of criminal law.

For example, from 1953 until 1969, Chief Justice Earl Warren led the Supreme Court to expand protections for criminal defendants

From 1953 until 1969, Chief Justice Earl Warren led the Supreme Court to expand protections for criminal defendants. 

For example from 1953 until 1969, such as in the case of Miranda v. Arizona, Chief Justice Earl Warren led the Supreme Court to expand protections for criminal defendants.  However from 1986 until 2005, Chief Justice William Rehnquist led a Supreme Court that narrowed some of the constitutional protections for criminal defendants that the Warren Court had established.

If you are interested in learning more about the Supreme Court and its justices, an excellent resource is the Oyez website.  There you can review short biographies of the justices, review case summaries, and listen to recordings of Supreme Court arguments.

The Safety Valve is set out in the United States Sente

Understanding The Federal Sentencing Guidelines

What Are The United States Federal Sentencing Guidelines?

In 1984 a law called the Sentencing Reform Act established the United States Federal Sentencing Guidelines.

Before 1984, federal judges in the United States enjoyed a lot of discretion when sentencing defendants.  However, this discretion sometimes resulted in disparate sentences around the country for the same criminal conduct.

For example, a defendant convicted of distributing a certain amount of cocaine in one part of the country might receive a much harsher sentence than a defendant convicted of distributing the same amount of cocaine in another part of the country.  The sentencing guidelines are designed to reduce such disparate sentences among similarly situated defendants.

Why Are The United States Federal Sentencing Guidelines So Important?

If you or a loved one is facing federal criminal charges, one of the first things you will need to do is gain an understanding of the United States Federal Sentencing Guidelines.

From the very beginning of a federal case it is essential for a defendant to understand the sentencing guidelines, because the guidelines often drive important decisions like whether or not to plead guilty, whether or not to cooperate with the government, and whether or not to go to trial.

Are the United States Federal Sentencing Guidelines Mandatory?

From 1984 until 2005, the federal sentencing guidelines were mandatory, so judges were obligated to impose whatever sentences the guidelines prescribed.

United States Supreme Court

In 2005, in the case of United States v. Booker, the United States Supreme Court made the federal sentencing guidelines advisory rather than mandatory.

However, in 2005, in a case called United States v. Booker, the United States Supreme Court changed the federal sentencing scheme, by making the United States Federal Sentencing Guidelines advisory rather than mandatory.  So now, while federal judges are required to calculate a defendant’s sentencing guideline before imposing a sentence, federal judges are not bound to follow the federal sentencing guideline recommended sentence.  Rather, the federal judges must now treat the sentencing guidelines as just one of the many sentencing factors to be considered when sentencing a defendant.

Some of the other factors a judge will consider when sentencing a defendant are the nature and circumstances of the offense, the history and characteristics of the defendant, the purposes of sentencing, the kinds of sentences available, the need to avoid unwarranted sentencing disparities, and the need to provide restitution.

What Types Of Punishments Do The United States Federal Sentencing Guidelines Include?

The federal sentencing guidelines instruct the sentencing judge to impose one or more of four types of punishment in every case: probation, fine, imprisonment, and supervised release.

How Do The United States Federal Sentencing Guidelines Generally Work?

The federal sentencing guidelines establish an offense level (which is intended to account for the seriousness of the offense) and a criminal history category (which is intended to account for the seriousness of the defendant’s criminal history).

The basic idea is that the higher the offense level, and the higher the criminal history category, the longer the sentencing guidelines recommended sentence.

How Is The Sentencing Guideline Offense Level Determined?

The Federal Sentencing Guidelines are set out in a manual which is written by the United States Sentencing Commission.

Base Offense Level:

Each type of crime is assigned a base offense level, which is the starting point for determining the seriousness of a particular offense.  The idea is that more serious crimes have more serious offense levels. For example, distribution of 150 grams of cocaine has a higher offense level than distribution of 75 grams of cocaine.

Specific Offense Characteristics:

In addition to base offense levels, each offense type normally has a number of specific offense characteristics. These are factors that can increase or decrease the base offense level.  For example, in a drug case, if a defendant possessed a dangerous weapon (including a firearm) during the offense, the offense level is increased by 2 levels.


Similar to specific offense characteristics, adjustment increase or decrease the offense level.

Categories of adjustments include: victim-related adjustments, the offender’s role in the offense, and obstruction of justice.

For example, in a fraud case, if the offense involved a misrepresentation that the defendant was acting on behalf of a charitable, educational, religious, or political organization, or a government agency, the offense level is increased by two levels.

Acceptance of Responsibility:

If the judge finds that a defendant has accepted responsibility for the offense, the offense level may be reduced by 2 or 3 levels, depending on the facts of the particular case.

How is a Defendant’s Criminal History Category Determined:

The guidelines assign each defendant a criminal history category based upon the defendant’s prior criminal history.

In general, the point system works as follows.  For each prior sentence in which the defendant was incarcerated for more than 13 months, the defendant gets 3 criminal history points.  For each prior sentence in which a defendant was incarcerated at least 60 days, the defendant gets 2 criminal history points.  For any other prior sentences not counted by the first two rules, the defendant gets one criminal history point.

Criminal history Category I is the least serious category, and criminal history Category VI is the most serious category.  The higher the criminal history category is, the longer the recommended guideline sentence will be.

An Example Of A United States Federal Sentencing Guideline in a Healthcare Fraud Case

With an offense level 19, and a criminal history category I, the advisory federal guidelines sentence would be 30 to 37 months of incarceration.

With an offense level 19, and a criminal history category I, the advisory federal guidelines sentence would be 30 to 37 months of incarceration.

Federal Statute Charged:   Health Care Fraud (18 U.S.C. §§1347 and 2)

Guideline Section:   USSG §2B1.1

Base Offense Level:   The Base Offense Level is set at 6

Specific Offense Characteristic #1: Assuming the amount of money lost during the health care fraud was $750,000, the federal sentencing guidelines require a 14 level increase in the offense level.

Specific Offense Characteristic #2: Healthcare fraud cases frequently involve a defendant using sophisticated means to carry out the fraud. In such cases, the federal sentencing guidelines call for a 2 level increase in offense level.

Acceptance of Responsibility: If a defendant clearly demonstrates acceptance of responsibility for the offense, and the Defendant timely notifies the Government of his intention to plead guilty before trial, the federal sentencing guidelines call for a 3 level decrease in offense level.

Criminal History Category: Let’s assume for the purposes of our example that the Defendant has no criminal history.  Therefore, the defendant’s criminal history would be criminal history category I.

Total Offense Level: Based upon a total offense level of 19, and a criminal history category of 1, the guideline imprisonment range would be 30 to 37 months of incarceration.

Remember that the federal sentencing guidelines are now just one piece of the puzzle.  A Federal District Court Judge will take other factors into account when imposing sentence upon a defendant.  For more information on how the federal sentencing process works, click here.

Where Can I Read The United States Federal Sentencing Guidelines?

If you would like to read the federal sentencing guidlines yourself, you can go to the United States Sentencing Commission’s webiste by clicking here.

Contact The Hardy Law Firm, P.A.

If you or a loved one has been accused of a federal crime, contact Board Certified Criminal Trial Attorney David C. Hardy.

Attorney Hardy began his work in the federal courts when he served as an intern with the United States Department of Justice in 1999.

Attorney Hardy began his work in the federal courts when he served as an intern with the United States Department of Justice in 1999.

In the federal courts, Attorney Hardy has handled a wide variety of cases including international extradition, drug trafficking, bank fraud, healthcare fraud, immigration offenses, identity theft, the misbranding of drugs, and firearms offenses.

Attorney Hardy has represented clients in Federal Trial and Appellate Courts in Florida, Texas, and Georgia.  For more information on Attorney Hardy’s experience, click here.

Are There Defenses To A Florida DUI Charge?

Are There Defenses To A Tampa Florida DUI Charge?

Are There Defenses To A Tampa Florida DUI Charge?

One of the first questions that people arrested for a Tampa, Florida DUI ask themselves is whether or not there are any legal defenses to a DUI charge.

Below is a list of just some of the possible defenses to a Tampa, Florida DUI charge:

The Tampa Police Officer’s Stop of the Vehicle Violated the Constitutional Rights of the Driver:

The United States Constitution

The United States Constitution 

If a police officer’s actions violate either the United States Constitution or the Florida Constitution, a judge may prohibit the prosecutor from using the evidence obtained as a result of the officer’s unconstitutional conduct.  In some cases, this can lead to a DUI case being reduced to reckless driving or dismissed.

For example, as a prosecutor, I handled a Tampa DUI case in which a police officer stopped the driver of a pickup trick because the pickup’s rear glass window had been removed.  The officer claimed that when he spoke to the driver about the pickup missing its rear glass window, that he noticed signs of the driver’s impairment. The officer eventually arrested the driver for DUI.

However, though Florida law requires a windshield at the front of a car, there was no Florida law requiring that a motor vehicle had to have a piece of glass in the rear of the car.  Therefore, the Tampa police officer had no legal reason to stop the driver of the pickup truck in the first place.  Because all of the evidence in the case was obtained as a result of an unlawful police stop, the case had to be dismissed.

For more information on unconstitutional police conduct in DUI cases, click here.

DUI Checkpoint

Before the police can set up a DUI roadblock, they must have a written set of guidelines that set out procedures regarding how they will decide which vehicles to stop.

The Tampa Road Block Was Unlawful:

The Tampa Police and the Hillsborough County Sheriff’s Office may use DUI roadblocks to look for persons that are driving under the influence.  However, before these agencies can set up a roadblock, they must have a written set of guidelines that set out procedures regarding how they will decide which vehicles to stop.  Police are not allowed to stop whichever vehicle they please.

If the Tampa Police and the Hillsborough County Sheriff’s Office can’t prove that they set up guidelines that limit the discretion of the officers running the checkpoint, or if there were guidelines in place but the officers did not strictly follow them, a judge could order the case dismissed due to an unreasonable seizure of the driver.

Tampa Law Enforcement Did Not Have Probable Cause to Arrest the Driver for DUI:

In order for Tampa Police or the Hillsborough County Sheriff’s Office to arrest a driver for DUI, the law enforcement officer must have probable cause that the driver was impaired by alcohol, or that the driver had a blood alcohol level of .08 or above.

As long as the driver is age 21 or older, probable cause for a DUI arrest must be based on more than just an officer’s belief that a driver has consumed some amount of alcohol before driving.

As one Florida court put it, to arrest a person for DUI, the police officer must have: reasonably trustworthy information sufficient to cause a person of reasonable caution to believe that the driver is under the influence of alcoholic beverages to the extent that the driver’s normal faculties are impaired or the driver’s blood or breath alcohol level is .08 or higher.

If a Tampa Police Officer or a Hillsborough County Sheriff’s Deputy arrests an accused and a judge later determines that the officer did not have probable cause to make the arrest, the judge may prohibit the prosecutor from using any and all evidence obtained as a result of that illegal arrest.  In some cases, this can lead to a Tampa prosecutor reducing the DUI charge to reckless driving, or the judge dismissing the DUI case.

The Tampa Law Enforcement Officer Did Not Properly Administer The Field Sobriety Exercises:

Field sobriety exercises are designed to help determine whether or not alcohol or drugs have impaired a driver.

Field sobriety exercises include the Horizontal Gaze Nystagmus (or HGN)Exercise, the One Leg Stand Exercise, and the Walk and Turn exercise.  For detailed descriptions of these three field sobriety exercises, click here.

Sometimes, Tampa Police Officers or Hillsborough County Sheriff’s Office Deputies don’t properly administer the field sobriety exercises. For example, an officer that is administering field sobriety exercises should administer them on flat ground.  However, sometimes an officer will administer the exercises where the ground is on an incline.  Further, officers are required to explain and model the exercises to the DUI suspect, but sometimes the officers improperly explain or model the exercises.

A Poor Performance on Field Sobriety Exercises was Due to Factors that had Nothing to do with Alcohol or Drugs:

Sometimes a person performs poorly on field sobriety exercises not because of alcohol or drugs, but rather because of a preexisting injury, arthritis, or some other physical issue.

Also, Tampa Police Officers and Hillsborough County Sheriff’s Deputies often ask a driver to perform field sobriety exercises shortly after he or she has been involved in a motor vehicle accident.  Given that the driver may be shaken up, or even injured from the accident, their performance on the exercises may be adversely affected.

Further, when Tampa Police Officers and Hillsborough County Sheriff’s Deputies stop a driver and accuse him or her of DUI, the driver gets nervous, and that nervousness can affect his or her performance on the field sobriety exercises.  For example, imagine a person that has been stopped by police and detained on the side of the road for a DUI investigation.  During the field sobriety exercises, the police often point a bright spotlight in the person’s face.  Also, the police vehicle’s overhead blue lights flash intermittently in the person’s eyes, making it difficult for the person doing the exercises to see.  Add to all that the fact that the person is embarrassed, and worried that someone will drive by and recognize them, and it’s no wonder the person does not perform well on the exercises.

Alcohol Is Not The Only Thing That Causes Bloodshot Eyes:

I once represented a client that was suspected of Tampa DUI after a minor traffic accident.  As part of the justification for arresting my client, the police officer stated in his report that my client’s eyes were red, glassy, bloodshot, and irritated.  The officer speculated that my client’s eyes were irritated because he had been drinking alcohol.

However, my client was employed as a roofer, and he had been working all day prior to the accident removing a shingle roof from an old home.  Removing a shingled roof is a dirty job, which causes dust and debris to pervade the work site.  Consequently, even if my client’s eyes were irritated, it could be explained by the fact that he had been working all day in an environment of dust and debris.  Faced with these facts, the prosecutor decided to reduce the DUI charge to reckless driving.

Florida law enforcement agencies use the Intoxilyzer 8000 to administer the breath test in DUI cases

Florida law enforcement agencies use the Intoxilyzer 8000 to administer the breath test in DUI cases

The Tampa Breathalyzer Test Was Improperly Administered:

According to the Florida Supreme Court, in order for the Breathalyzer results to be admissible in court, the prosecutor must prove:

  1. The test was administered substantially in accordance with state regulations.
  2. The police used a machine approved by the State of Florida.
  3. A person with a valid breath test operator permit administered the test.
  4. The machine was calibrated, tested, and inspected in accordance with Florida regulations.

However, there are times when the prosecutor can prove one or more of these requirements.  For more information on problems with Breathalyzer results, click here:

In The Case Of A Blood Draw, The Blood Draw Was Improperly Drawn:

In Tampa, Florida, there are four ways in which law enforcement can obtain the blood alcohol test results of a suspect.  They are Implied Consent Blood Draws, Forced Blood Draws, Voluntary Consent Blood Draws, and Medical Blood Draws.  However, in order for blood test results to be admissible in a Florida Court, the prosecutor must prove that the blood sample was taken properly – both legally and medically.  For more information concerning DUI blood draws, click here.

In The Case Of A Urine Test, Even a Positive Result Does Not Prove DUI:

Florida’s Implied Consent Law requires any person who drives a vehicle within the State and who is suspected of DUI to submit to a chemical test of their urine.

When investigating DUI cases, police sometimes use urine tests to check for the presence of cannabis in a driver's body

When investigating DUI cases, police sometimes use urine tests to check for the presence of cannabis in a driver’s body.

Urine tests are used to detect drugs like marijuana, cocaine, prescription painkillers, or even over the counter medicines that might affect a person’s ability to drive.

Typically, when a person arrested in Tampa for DUI provides a breath sample and the result is under .08, police officers will then request a urine sample and test it for controlled substances.

Urine tests are of limited value to police in proving a Tampa DUI because while urine tests may show the presence of a drug, they don’t indicate when the person took the drug or if the person was still under the influence of the drug at the time the sample was provided.    For example, marijuana can be present in a person’s urine for weeks after smoking, but the effects of marijuana only last a few hours.

Therefore, depending on the facts of the case, a prosecutor might reduce a Tampa DUI based on a positive urine test to reckless driving, or even drop the case.

Ernesto Miranda

The Miranda Rights which Police read to suspects come from the U.S. Supreme Court Case of Miranda v. Arizona.

The Tampa Police Officer or Hillsborough County Deputy Did Not Read The Miranda Rights:

In the case of Miranda v. Arizona, the United States Supreme Court held that when a person is in police custody, and the police want to ask the person questions about a criminal investigation, that the police are obligated to read the person of list of rights before they begin the questioning.  We commonly know these rights as the Miranda Rights.

The Miranda Rights that a police officer reads to a suspect are:

You have the right to remain silent.  Anything you say can and will be used against you in a court of law. You have the right to have an attorney. If you cannot afford one, the court will appoint one to you.  Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?

However, sometimes, a Tampa Police Officer or a  Hillsborough County Sheriff’s Office Deputy will place a DUI suspect in custody, ask them questions, but not read them their Miranda Rights until after the questioning is over.

For example, in one Tampa DUI case I handled, a police officer ordered a woman (we will call her Sally for this example) that was suspected of DUI out of her car.  A police video recording showed that the officer then ordered Sally to sit on a curb behind the car.  A few moments later, the officer raised his voice and told Sally not to move.  The officer then informed Sally that she was detained, and he then began to question Sally about whether or not she had been drinking that evening.

Only after Sally had answered several of the officer’s questions did the officer finally read Sally her Miranda Rights.  In this case, there was a good argument that the officer had violated Sally’s Miranda Rights, because a judge would have likely considered Sally in custody when the officer told her she was detained, and the officer was certainly interrogating Sally by asking her questions about her drinking that evening.

When a Tampa Police Officer or a  Hillsborough County Sheriff’s Office Deputy violates a suspect’s Miranda Rights, a judge may prohibit the prosecutor from using any of the evidence that the police obtained as a result of the Miranda violation.

In Sally’s case, it’s likely that a judge would have told the prosecutor that the answers that Sally gave to the officer’s questions, which she provided prior to the Miranda warnings, would not be admissible against Sally at a trial.  The exclusion of evidence like this can lead to a prosecutor reducing a DUI case to reckless driving, or the judge dismissing the case.

In the case of Sally, the prosecution reduced to the case to reckless driving, which allowed Sally to avoid a conviction for DUI.

For more information on Miranda Rights, click here.

The Florida Accident Report Privilege:

Florida Law requires a person involved in a car accident to report the incident to police, or in some cases directly to the Florida Department of Highway Safety and Motor Vehicles.

However, because Florida law requires a person to provide information about an accident, this raises the possibility that the person could be forced to be witness against himself in a criminal case, which is strictly prohibited by both the United States Constitution and the Florida Constitution.

Therefore, the Florida Legislature has created the accident report privilege, which states that if a person makes a statement to a law enforcement officer for the purpose of completing a crash report, that the person’s statement can’t be used against him in a criminal prosecution.

However, if a Tampa Police Officer or Hillsborough County Deputy that is investigating a crash informs a suspect that the crash investigation has ended, and that the criminal investigation has begun, and the officer then reads the suspect his Miranda Rights, then the Accident Report Privilege will no longer apply and what the person tells the officer can be used against him in court.

Sometimes though, a Tampa Police Officer or a  Hillsborough County Sheriff’s Office Deputy fails to inform a DUI suspect that the crash investigation has ended and the criminal investigation has begun.  In cases like these the Florida Accident Report Privilege may apply, and make the suspect’s statements inadmissible against him in a criminal case.  A police officer’s body camera video can be an excellent source of evidence to prove that the officer violated the accident report privilege.

Time of Driving v. Time of Breath Test:

One of the ways that a  prosecutor can prove a Tampa DUI is to prove that the person had a blood alcohol concentration of .08 or greater at the time the person was driving a motor vehicle.  However, especially in cases in which there was a minor traffic accident, by the time the police arrive at the scene, interview witnesses, conduct an accident investigation, conduct a DUI investigation, and then administer the breathalyzer test, hours may have passed.  In cases like these, it may be difficult to determine if the driver’s blood alcohol concentration was above .08 at the time the accused was driving the motor vehicle.

To prove actual physical control in a Tampa DUI case,, the  prosecutor must show that the defendant was physically in or on the vehicle and had the capability to operate the vehicle, regardless of whether he or she was actually operating the vehicle at the time.

The Driver Did Not Have Actual Physical Control Of The Motor Vehicle:

Florida Statute 316.193(1) makes it a crime for a person to be “driving or in actual physical control of a vehicle within this state” while under the influence of alcohol or drugs.  When a defendant is not driving a car, the State may proceed on a theory of actual physical control. To prove this actual physical control, “the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether he or she is actually operating the vehicle at the time.”

I once handled a DUI case in which a deputy found a woman in a car with its motor running.  She was asleep, seated in the front passenger seat that was separated from the driver’s seat by a console and gearshift.   The driver’s door was wide open, and the front passenger door where the woman was seated was closed.  A neighbor said that car had been there at least two hours.  After the deputy woke the woman up and questioned as to where the driver of the car was, she exclaimed: “What the hell, he left me here!”

To be convicted of DUI, the woman must have intended to place herself in actual physical control of the vehicle.  However, in this case, it was possible that another person drove the vehicle to where the deputy found it, and then abandoned the woman while she was passed out in the passenger seat.  In such case, the woman would not have had the intent to place herself in actual physical control of the vehicle.

Because of these issues with the case, the prosecutor reduced the case to reckless driving.

There is Insufficient Evidence That The Driver Was Under The Influence:

Sometimes, there is simply not enough evidence to prove a person drove under the influence.  For example, imagine a case in which a Tampa Police Officer or a  Hillsborough County Sheriff’s Office Deputy officer stops a vehicle not because a driver’s erratic driving, but rather because of a broken taillight.  Further, imagine that the person performs well on the field sobriety exercises, but then elects to refuse a breath test.  In a case like this, there may simply not be enough evidence for the prosecutor to prove beyond a reasonable doubt that the driver was under the influence.

The Tampa Police Officer or Hillsborough County Sheriff’s Deputy Entrapped The Driver:

There are two types of entrapment, objective entrapment and subjective entrapment.

Objective Entrapment: Objective entrapment focuses on the conduct of the police officer. Objective Entrapment may occur when a police officer’s conduct is so unfair that it violates a person’s right to due process of law, which is guaranteed by the Florida and Federal Constitutions.

Subjective Entrapment:  Subjective entrapment focuses on the mind of the accused.  Both Federal and Florida courts disapprove of police officers tricking otherwise law-abiding citizens into violating the law.

To understand objective entrapment and subjective entrapment, we need to look at an example.

Imagine that a couple by the names of Charlie and Lucy decide to go out and visit a few different bars in south Tampa to celebrate Charlie’s 21stbirthday.  Charlie wants to drink a lot of beer, so Lucy agrees stay sober and serve as a designated driver.  By the time the couple arrives at the third bar, Charlie is clearly under the influence of alcohol, but Lucy is sober and continues to serve as the designated driver.

Now imagine that the Lucy leaves the car running, double-parked in the street, as she runs into a bar to quickly find a friend.  Charlie is outside the car leaning on the passenger door, as the car’s engine is running, waiting for Lucy to return.  Because Charlie has had a lot to drink, it is obvious that he is under the influence, as he can hardly stand, his speech is slurred, his eyes are blood shot, and he smells of alcohol.

At that point, a Tampa Police Officer drives up, and sees the obviously intoxicated Charlie outside the vehicle, leaning against the passenger door.  The officer approaches Charlie, and Charlie admits the vehicle belongs to him.  The officer then tells Charlie that if he does not get in the car and move it immediately, that he will have the vehicle towed.  When Charlie gets in the driver’s seat, the officer immediately turns on his blue overhead lights, activates his siren, and arrests Charlie for DUI.  Though this case may seem far-fetched, it is close to the facts of an actual case.

Arguably, the Tampa officer objectively entrapped Charlie, because when he told Charlie to move the car or it would be towed, the officer was essentially forcing Charlie behind the wheel  – even though it was clear that Charlie was under the influence.

Also, there is a good argument that the Tampa Police Officer subjectively entrapped Charlie, because the officer encouraged Charlie to commit a crime (get behind the wheel while under the influence) when Charlie had no intention of doing so.

In the actual case upon which these facts are based, the prosecutor saw the weaknesses in the case, and therefore reduced the case to reckless driving.

The Driver Committed a Tampa DUI out of Necessity:

Sometimes, an emergency may occur, which requires a person to drive, even though that person knows that they under the influence.  In situations like this, the defense of Necessity may apply.

In a Tampa DUI case, when a person claims the defense of necessity, they are admitting that they drove under the influence, but that their actions should be excused because of the extreme circumstances in which they found themselves.

The essential elements of the defense of necessity are:

  1. That the defendant reasonably believed that his action was necessary to avoid an imminent threat of death or serious bodily injury to himself or others.
  2. That the defendant did not intentionally or recklessly place himself in a situation in which it would be probable that he would be forced to choose the criminal conduct.
  3. That there existed no other adequate means to avoid the threatened harm except the criminal conduct.
  4. That the harm sought to be avoided was more egregious than the criminal conduct perpetrated to avoid it.
  5. That the defendant ceased the criminal conduct as soon as the necessity or apparent necessity for it ended.

For example, in one Florida case, a man testified that he had driven under the influence because his cat was very ill, and he was rushing the cat to an all night veterinary clinic.  In that case, the court held that the defense of necessity might have applied if the driver were rushing an extremely ill person to the hospital for medical care, but not a cat.

I once watched part of a Tampa DUI jury trial in which a woman testified that she had driven under the influence in order to escape a bar parking lot in which she had been confronted and threatened by a violent ex-boyfriend.  The woman’s defense attorney cited the defense of necessity in her closing argument.  The jury found the woman not guilty.

Involuntary Intoxication in Tampa:

In a Tampa DUI, the Defense of involuntary intoxication applies when a person unknowingly ingests a substance that makes him or her intoxicated.

For example, if a person thought that they were drinking a non-alcoholic fruit punch, but then it turned out someone had spike the punch with a strong but tasteless form of alcohol, then the involuntary intoxication defense could apply.

More Questions?  Contact The Hardy Law Firm, P.A.

Criminal Defense Attorney

Nationally and Florida Board Certified Criminal Trial Attorney David C. Hardy is a former Tampa DUI prosecutor that has extensive experience handling DUI cases.

These are just some, but by no means all, of the possible defenses to a Florida DUI charge.  If you or a loved one has been accused to DUI in Hillsborough County, Pinellas County, or Pasco County, contact Tampa Attorney David C. Hardy.

Attorney Hardy is a former DUI prosecutor that now represents persons accused of DUI.  He is Board Certified by the Florida Bar and the National Board of Trial Advocacy as an Expert in Criminal Trial Law. As a prosecutor and defense attorney, he has extensive experience handling all types of DUI cases. For more information concerning Attorney Hardy’s experience, click here.

You may also visit the Hardy Law Firm, P.A. on Facebook.

United States Supreme Court

How Do The Federal Criminal Courts Work?

Why Do Federal Courts Exist?

The federal courts exist in order to decide disputes concerning the United States Constitution, as well as to handle cases that involve laws passed by the United States Congress, which are called federal statutes.

Federal Statutes

Federal criminal laws, also known as federal criminal statutes, are organized in the United States Code Annotated.

What is Federalism?

Federalism is a system in which governmental power is shared by both the federal government and the state governments.

When they wrote the U.S. Constitution, the framers of the Constitution gave a limited number of governmental powers to the federal government and reserved the vast majority of governmental powers to the state governments.

However, since the U.S. Constitution was ratified in 1788, sometimes out of necessity and sometimes based on Congress’s desire for more power, the federal government’s powers have expanded.

How Does Federalism Affect Federal Criminal Law?

In order for the U.S. Congress to write a federal criminal law, the U.S. Constitution must authorize Congress power over that subject matter.

For example, it’s clear that the U.S. Congress can pass criminal laws punishing counterfeiting or piracy on the high seas because the U.S. Constitution explicitly gives Congress the power to do so.

However, Congress passes laws about things that the U.S. Constitution does not explicitly mention.  For example, Congress has passed laws that punish persons for distributing illegal drugs, but drugs are not mentioned in the U.S. Constitution.

Federal law prohibits the unlawful distribution of cocaine.

The federal courts have justified federal criminal laws punishing the distribution of illegal drugs based on a clause in the Constitution that gives the Congress power to regulate commerce with foreign nations and among the States. “Commerce” can be defined as the activity of buying and selling goods.  Because cocaine is produced outside of the United States, Congress claims the right to punish its distribution based on this commerce clause.

Sometimes, however, federal criminal laws appear to stretch the meaning of the U.S. Constitution beyond reason.  For example, there is a federal law that makes it a crime for a person that has been convicted of a felony to possess a firearm or bullet.  Because there is no explicit power in the Constitution giving the Congress the power to prohibit persons convicted of a felony from possessing a firearm, the Congress has relied on the commerce clause as a basis for the law.  Therefore, in order to prove a person is guilty of felon in a possession of a firearm in federal courts, the federal prosecutor must prove that the firearm, or the bullet, traveled from one state to another, or from another country to the United States.

In theory then, if the gun and bullets were all made in the State in which the Defendant possessed the firearm, the Federal Government would not have jurisdiction over the case and only the State Government could prosecute the Defendant.

What Are The Different Types Of Federal Courts

The federal courts have three levels: the District Courts, the Circuit Courts, and the Supreme Court of the United States. Levels of Federal Courts

What Are the Federal District Courts?

The Federal District Courts are the courts in which federal trials take place. There are 94 federal district courts in the United States.  One of those federal district courts is located in Tampa, Florida.

Federal district Court Judges are appointed by the President and confirmed by the U.S. Senate for a life term.

Federal Magistrate Judges handle some of the work in the Federal District Courts. Federal Magistrate Judges are not appointed by the president and confirmed by the Senate.  Rather, the District Court Judges appoint the Magistrate Judges to help them handle their caseload.

In criminal cases, Magistrate Judges can handle federal misdemeanor criminal cases, issue search warrants and arrest warrants, conduct initial hearings, set bail, conduct a change of plea hearings, and hear motions to suppress evidence.

What Are The Federal Circuit Courts?

In the federal court system, the Federal Circuit Courts are the first level of appeal.  In an appeal, a defense attorney may complain to the Appellate Judges that a Federal District Court Judge made a mistake during a trial or at sentencing that prejudiced a Defendant.

A panel of three Circuit Court judges decides appeals to the circuit courts. Attorneys on both sides of a case will file briefs with the judges, arguing why the trial court’s decision should be affirmed or reversed.

There are 13 Federal Circuit Courts in the United States.  

There are 13 Federal Circuit Courts in the United States.

Twelve of the Federal Circuits divide the country into different regions. The Eleventh Circuit, for example, includes the states of Florida, Georgia, and Alabama.  Cases from the District Courts of those states are appealed to the United States Court of Appeals for the Eleventh Circuit, which is headquartered in Atlanta, Georgia. Additionally, there is a 13th federal circuit court called the Federal Circuit Court of Appeals.  That court has nationwide jurisdiction over certain types of cases, such as patent cases.

What is the United States Supreme Court?

The United States Supreme Court is the final level of appeal in the federal system. It is based in Washington, D.C.

The Justices on the Supreme Court are appointed by the President and confirmed by the Senate.

The Justices of the United States Supreme Court in 2018.

The Justices of the United States Supreme Court in 2018.

In the Federalist Papers, which were a series of newspaper articles designed to argue for the various States to ratify, or adopt, the United States Constitution, Alexander Hamilton called the United States Supreme Court  “The Least Dangerous Branch”, perhaps because at the time, the Supreme Court was seen as the least powerful of the 3 proposed branches of Government.

However, the United States Supreme Court has developed into an extremely powerful and co-equal branch of Government.  The Supreme Court has the power to declare both presidential and congressional actions unconstitutional and therefore void.

The number of justices on the U.S. Supreme Court is set by Congress and has varied over time. In 1789 there were six Justices; in 1863 there were 10 Justices; in 1869 the number of Justices was set at nine, where it stands today.

The Supreme Court is the most important court in the United States because it has the final say on legal questions.

Associate Justice of the United States Supreme Court Robert Jackson

Associate Justice of the United States Supreme Court Robert Jackson.

As Associate Justice of the United States Supreme Court Robert Jackson once said, “We [the Supreme Court] are not final because we are infallible, but we are infallible only because we are final.

If You Or A Loved One Has Been Charged With  A Federal Crime in Tampa, Florida, Contact The Hardy Law Firm, P.A.

Tampa federal attorney David C. Hardy began his work in the federal courts when he served as an intern with the United States Department of Justice in 1999.

If you or a loved one has been accused of a federal crime in Tampa, Florida, contact federal criminal defense attorney David C. Hardy.  Attorney Hardy is board certified as an expert in criminal trial law.  He began his work in the federal courts when he served as an intern with the United States Department of Justice in 1999.

In the federal courts, Attorney Hardy has handled a wide variety of cases including international extradition, drug trafficking, bank fraud and healthcare fraud, immigration offenses, identity theft, the misbranding of drugs, and firearms offenses.  Attorney Hardy has represented clients in federal trial and appellate courts in Florida, Texas, and Georgia. Contact The Hardy Law Firm today!

Ernesto Miranda

What Are Miranda Rights And Who Was Ernesto Miranda?

Why Was Ernesto Miranda Arrested?

On March 3, 1963, an eighteen-year-old woman had been working in the concession stand at a movie theatre in downtown Phoenix.  After work, she boarded a public bus to go home.  When the bus reached her stop, she started to walk toward her house. She observed a car, which afterward proved to be that of Ernesto Miranda.

Miranda Rights

The car that Ernesto Miranda used to kidnap his victim. 

Mr. Miranda got out of his car, approached the woman, and forced her into the backseat of his car.  The woman had never seen Mr. Miranda before.

Mr. Miranda drove the car for about twenty minutes out to a secluded area in the desert. Mr. Miranda stopped the car, and sexually assaulted the woman.  Mr. Miranda then drove the woman back into the city.  As he dropped her off he told her “pray for me.”  The woman ran home and told her family, who called the police.

The woman met with detectives and told them that the car that her assailant drove was green or gray, and had dark upholstery with stripes. About a week later, a family member of the woman spotted a car in the neighborhood that matched the description and got a partial license plate which he provided to police.  From that partial plate, the detectives determined that Ernesto Miranda was a suspect.

On March 13, 1963, police officers arrested Mr. Miranda and took him to the police station.  Officers placed Mr. Miranda in a lineup, but the woman he had kidnapped and assaulted was not able to positively identify him as her attacker.

Ernesto Miranda Line Uo

Ernesto Miranda was placed in a line up after his arrest.  Miranda is wearing the card labeled #1.

Detectives then questioned Miranda for two hours.  The detectives did not inform Miranda that he had the right to have an attorney present.

Ernesto Miranda's written confession

Ernesto Miranda’s written confession.

Mr. Miranda eventually confessed to kidnapping and assaulting the woman, and his confession was used at his trial. The jury convicted him and the judge sentenced him to 20 to 30 years in prison.

The United States Supreme Court Decides Mr. Miranda’s Case and Establishes the “Miranda Rights”

In 1966 the United States Supreme Court reversed Mr. Miranda’s conviction and ordered that the State of Arizona give him a new trial.

The Supreme Court held that though the Fifth Amendment of the United States Constitution guaranteed that “no person shall be compelled in any criminal case to be a witness against himself,” that when police officers take a person into custody and question them, that the unless the police give the person certain warnings, the officers are essentially compelling the person to be a witness against themselves.

Therefore, the Supreme Court held that when an individual is taken into custody or otherwise deprived of his freedom by the authorities and is subjected to questioning, police must warn the person prior to any questioning of the following:

  • that he has the right to remain silent; 

  • that anything he says can be used against him in a court of law; 

  • that he has the right to the presence of an attorney;

  • if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.

Many people misunderstand the Supreme Court’s holding in the Miranda case.  Miranda does not mean that police must read a person his rights after any arrest, nor does Miranda mean that police must read a person his rights before any questioning. 

Since Miranda v. Arizona, When Do Police Have to Read Suspects Their Miranda Rights?

What Miranda Rights means is that police only have to read a suspect his Miranda Rights if police conduct a custodial interrogation.  A suspect is in custody for purposes of receiving Miranda Rights protection when there is a formal arrest or a restraint on freedom of movement of the degree associated with a formal arrest.  Interrogation under Miranda refers not only to express questioning but also to any words or actions on the part of the police that the police should know are reasonably likely to elicit an incriminating response from the suspect.

In a custodial interrogation, custody, and interrogation take place at the same time.

Miranda v. Arizona

The United States Supreme Court decided Miranda v. Arizona in 1966.

Sometimes police conduct an interrogation but the suspect is not in custody. For example, detectives will frequently leave their business cards at the homes of persons involved in an investigation.  If the person that received the business card calls the detective and agrees to come to the police station to answer some questions and the detective does not detain or arrest the person during the questioning, there is interrogation but no custody – so the detective is not obligated to read the Miranda Rights.

Sometimes the suspect is in custody but the police don’t conduct an interrogation.  For example, police officers frequently arrest two subjects at the same time and place them in the back of a patrol car.  Unbeknownst to the two subjects, police will leave a recording device on in the vehicle so they can record what the subjects are talking about.  Often, one or both of the suspects will make incriminating statements.  The two subjects are in custody but because no police officer is asking them questions there is no interrogation – so the police officer is not obligated to read the Miranda Rights.

What Did Ernesto Miranda Do After He Was Released From Prison?

As far as Mr. Miranda himself – he did not get away with his crime.  After the United States Supreme Court overturned his conviction in 1966, his case was returned to the Arizona trial court.  At his second trial, the prosecutor could not use Mr. Miranda’s confession against him.  However, Mr. Miranda’s ex-common law wife testified at the second trial that shortly after Mr. Miranda had been arrested for the kidnapping, she had gone to visit him in jail and that during that visit Mr. Miranda admitted to kidnapping and assaulting the eighteen-year-old woman.  The jury convicted Miranda, and the judge sentenced him to prison.

Mr. Miranda was paroled in 1973, but his newfound fame made it difficult to get a job.   To make money, he carried autographed Miranda Cards and sold them around Phoenix.

How Did Ernesto Miranda Die?

Miranda Rights

After getting out of prison, Mr. Miranda made money by selling autographed Miranda Rights cards.

Before too long, he was picked up on a parole violation and sent back to prison.  In 1976, he was released but shortly thereafter got into a fight over $2.00 in change during a poker game at a bar.  During the fight, Mr. Miranda was stabbed to death.  Police detained and questioned a suspect that allegedly had handed the murder weapon (a knife) to Miranda’s killer, but the suspect, after receiving his Miranda warnings, declined to make a statement.  The killer fled and was never found.

Know Your Miranda Rights

If police seek to interview you concerning a crime, it’s best to speak with an experienced criminal trial attorney before speaking with them.  Though you may be completely innocent, misunderstandings can occur.   An attorney can guide you through the process, and  safeguard your rights.

If you or a loved one is under investigation in the Tampa Bay area for a Federal Offense or State offense, contact Board Certified Criminal Defense Attorney David C. Hardy.


Federal Criminal Cases v. Florida Criminal Cases

How are Federal Criminal Cases prosecuted Differently that Criminal Cases in the Florida State Courts?

Federal criminal cases are very different from criminal cases in Florida state courts.  Below are examples of some of the differences.

The Manner of Investigation

FBI Agents remove evidence from an office after executing a search warrant.

Federal criminal investigations are generally proactive, while state criminal investigations are generally reactive.

Federal law enforcement agencies generally investigate a matter for some time before they make an arrest.  In fact, by the time a person realizes that they are under federal investigation, federal law enforcement agents may have been investigating them for many months.  In contrast, Florida law enforcement officers generally begin their investigation at or near the time of the arrest.

Federal Prosecutors Can Pick Their Cases

Sometimes, the federal criminal courts and the state criminal courts both have jurisdiction over a case.  In these situations federal prosecutors have a choice – they can take the case themselves, or they can leave it to the state prosecutors.  The federal prosecutor’s decision on whether or not to take the case will be based on the priorities of their U.S. Attorney’s Office, but they generally pick cases that they believe are going to be easy to prove.  State prosecutors, on the other hand, don’t have this luxury.  If a crime takes place in their jurisdiction and the federal prosecutors don’t take it, they have to deal with it.

Federal Grand Juries v. State Grand Juries

In Federal Court, the 5thAmendment to the U.S. Constitution requires that persons accused of a felony (a crime that can be punished by more than a year in prison) must be charged by a Federal Grand Jury Indictment unless the person voluntarily waives that right.  In Florida Courts, the Florida Constitution requires only that those persons accused of a capital crime (a crime punishable by death) must be charged by a Grand Jury Indictment.

In both the Federal and Florida systems, when the charges don’t require an indictment, the prosecutor can charge the case in a document called an information.

The Federal Government Has Extensive Resources

Cases in federal court are investigated by agencies such as the FBI, DEA, Homeland Security, and Secret Service.  These agencies, along with the United States Department of Justice, have large budgets, and essentially limitless resources with which to investigate alleged criminal activity.  State agencies, on the other hand, generally have fewer resources at the disposal to investigate alleged criminal activity.

Are The Rules of Criminal Procedure In Federal Court Different than the Rules in Florida State Courts?

Yes, the rules of criminal procedure in federal court are different from the rules of criminal procedure in Florida State Courts.

For example, in Florida courts, the rules of criminal procedure allow for a defense attorney to depose (interview under oath) all of the witnesses that the state prosecutor intends to call at trial before the trial.  In the federal system, however, the defense attorney generally is not allowed to depose witnesses before trial and often doesn’t even know who the witnesses will be until the first day of trial.

Is Federal Criminal Sentencing Law Different Than Florida Criminal Sentencing Law?

The rules for federal criminal sentencing are completely different than the rules for Florida criminal sentencing.

Federal District Court Judges must take into consideration The United States Sentencing Guidelines when sentencing a defendant.

Federal judges, when deciding what sentence to impose, will consider a variety of factors, including the United States Sentencing Guidelines.  The United States Sentencing Guidelines provide a suggested sentencing range of imprisonment, house arrest, or probation for the judge to impose.  The length of the sentence the guidelines suggest is based on the severity of the offense (for example, in a drug case the weight of the drug), the defendant’s role in the offense, and the defendant’s criminal history.  Federal judges take other factors into account, including the nature and circumstances of the offense, the history, and characteristics of the defendant, and the need to avoid unwarranted sentencing disparities.  As long as the charged offense does not have a minimum mandatory sentence, federal judges have a tremendous amount of discretion in their sentencing decisions.

In contrast, as stated by the Florida Legislature, the primary purpose of sentencing in Florida state courts is to punish the offender.

The Florida Statutes set out a system for sentencing in the Florida Courts.

When deciding what sentence to impose, Florida circuit court judges use a system called the Florida Criminal Punishment Code.  That system assigns a certain number of points to the current charges, as well as additional points for any prior criminal history.  Once a certain number of points are reached, the general rule is that the judge must sentence the offender to Florida state prison – the more points, the more prison time.  Florida law does allow Florida Judges to sentence a defendant below the prison sentence required by the Florida Criminal Punishment Codein some circumstances.  For example, if the judge finds that a defendant requires specialized treatment for a mental disorder unrelated to substance abuse, or that the need for payment of restitution to the victim outweighs the need for a prison sentence, or that the victim was an initiator, willing participant, aggressor, or provoker of the incident, then the judge can impose a probationary sentence rather than send the defendant to prison.


New and Improved “Get Smart” Federal Government Surveillance

In the 1960’s comedy television series “Get Smart”, Agent 13 was a Government agent whose job was to perform surveillance upon an evil international organization known as “KAOS.”  To spy on  “KAOS”, Agent 13 would hide inside uncomfortable places, such as a cigarette machine, mailbox, locker, washing machine, trashcan, toilet, tree, or fire hydrant.

Get Smart’s Agent 13 disguises himself as potted plant.

Nowadays with advances in technology Government agents don’t have to hide themselves in unsuspecting places to perform surveillance.   An example of the Government’s current surveillance tactics can be seen in a recent case from the federal district court in San Francisco.

In U.S.A. v. Giraudo, five Defendants were accused of conspiring to restrain competition by rigging bids at public real estate auctions.

To understand this case, you need to know that when a person or business defaults on a mortgage, the property in question may be sold at a public auction.  The proceeds from the auction are used to pay off the bank that holds the mortgage, with the remaining proceeds, if any, paid to the person or business that defaulted on the loan.

However, in this case, the Government alleged that before the auctions, the five Defedants would pick the winning bidder for the property amongst themselves, and then the winning bidder would pay the losing bidders off for keeping their bids low.  This practice is illegal because it lowers the sale price of the property, which essentially steals money from the bank holding the mortgage, as well as the person or business being foreclosed upon.

During the Government’s investigation, FBI agents planted listening devices outside the entrance of a county courthouse where the auctions took place.    The FBI did not get a warrant (permission) from a judge to plant the listening devices – they just did it on their own.

The listening devices were hidden in a metal sprinkler box, a planter, and an automobile.  The FBI turned these devices on at least 31 times and captured over 200 hours of conversations.  The devices were so sensitive that they were able to capture not only the voices of people standing in front of the courthouse talking on their cellphones, but also the voices of the persons on the other side of the line.  The listening devices did in fact capture incriminating conversations amongst the Defendants, which supported the Government’s case.

The San Mateo County Courthouse in Redwood City, California

The Defendants’ attorneys filed motions to suppress the recordings, claiming that the FBI violated the Fourth Amendment of the United States Constitution when it failed to get a warrant before it eavesdropped on their conversations.

The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The United States Supreme Court has held that the Fourth Amendment not only protects places, but also a person’s communications.  However, the Fourth Amendment does not protect every communication a person makes.  In the San Francisco case, Federal District Court Judge Charles Breyer, whose brother is Supreme Court Judge Stephen Breyer, noted that the Fourth Amendment would protect the conversations that took place in front of the courthouse only if:

  1. The defendants had a “subjective expectation of privacy” in their conversations in front of the courthouse.In other words, the defendants had to have thought that their conversations were private.
  2. The defendants’ expectation that their conversations were private was “objectively reasonable.” In other words, the defendants’ beliefs that their conversations were private had to have been reasonable.

The Government’s lawyers argued that the FBI did not need to get a warrant from a judge because the recorded conversations took place in front of the courthouse – which is a public place.  Therefore, the Government argued that the defendants did not have a reasonable expectation of privacy and the Fourth Amendment does not apply.

The Defendants’ attorneys disagreed.  They argued that people often have a reasonable expectation of privacy in public places.   For example, people in public places often move off the side away from other people to talk in private, or they may lower their voices so other people won’t hear them.

After reviewing the facts of the case, Judge Breyer analyzed whether the Defendants had a “subjective expectation of privacy” and if so, whether or not that expectation was “objectively reasonable.”

Senior United States District Court Judge Charles R. Breyer

First,  Judge Breyer noted that the video and audio recordings showed that one of the defendants would keep a close eye on the people near him, speak in a lower voice or stop talking when strangers approached, and generally do everything possible to make sure nobody else heard his conversations. Therefore, Judge Breyer felt that the defendants had a subjective expectation of privacy in their conversations. In other words, the defendants thought what they were saying was private.

Second, to determine whether or not the defendants’ subjective expectations of privacy were objectively reasonable,  Judge Breyer considered a variety of factors, including: the location of the conversations; whether the conversations could be overheard with the naked ear; whether the conversations took place out in the open; whether the conversations involved business or private matters; the proximity of other individuals to overhear the conversations; the affirmative actions taken by the speakers to shield their privacy; the need for technological enhancements to hear the communications.  After considering all these factors,  Judge Breyer found that it was reasonable for the Defendants to have believed that their conversations were indeed private.

Having determined that the Defendants had a subjective expectation of privacy in their conversations in front of the courthouse and that that expectation was objectively reasonable,  Judge Breyer ruled that the FBI had violated the Fourth Amendment’s prohibition against unreasonable searches when it recorded the Defendants’ conversations without a warrant.  Therefore,  Judge Breyer suppressed the recordings.  The effect of Judge Breyer’s order was that the Government could not use the recordings as evidence at the Defendants’ trial.

However, it appears that even without these recordings, the Government had enough evidence to convict the Defendants, and all 5 Defendants ended up pleading guilty.  Their sentences ranged from probation, to 15 months of incarceration.

If you would like to learn more about what happens when police use investigative methods that violate the U.S. Constitution, click here:


Florida Double Jeopardy

Double Jeopardy and Hollywood


In 1999, a Hollywood movie called “Double Jeopardy” came out.

The film begins with a woman waking up at sea on her family’s yacht in a storm. When the Coast Guard arrives, she has blood all over her, a knife in her hand, and her husband, who had been the only person onboard the yacht with her, is missing. The husband’s body is never found. The wife is eventually arrested, tried, and convicted for her husband’s murder.

While the wife is serving time in prison, she begins to suspect that her husband faked his own murder and framed her in a scheme to get rich. Another inmate tells the wife that because she has already been convicted of her husband’s murder, that under the 5th Amendment’s double jeopardy clause, she can now kill her husband for real and not face criminal prosecution. Though it’s never a good idea to take legal advice from a prison inmate, the wife believes she can now legally kill her husband. When the wife gets paroled, she starts looking for her husband. When she finds him alive and well, she points a gun at him and says: “I learned a few things in prison.  I could shoot you in the middle of mardi gras and they can’t touch me.

According to the Merriam-Webster Dictionary, Double Jeopardy is defined as the act of causing a person to be put on trial two times for the same crime.

The protection against double jeopardy can be found in the Fifth Amendment to the United States Constitution, which states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” The Florida Constitution also has a double jeopardy protection as part of Florida’s Declaration of Rights, which states, “No person shall…be twice put in jeopardy for the same offense.”

In 1957, in a case called Green v. United States, the United States Supreme Court explained the rationale for the double jeopardy clause, stating that:

The constitutional prohibition against “double jeopardy” was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense…. The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.

The double jeopardy protection does not apply until jeopardy has “attached.” With a jury trial, jeopardy attaches when a jury has been selected and sworn (taken an oath). With a bench trial (a trial in which a judge decides the case rather than a jury), jeopardy attaches when the first witness has been sworn.

It’s important to remember that there are times when the government can try a defendant more than once for the same offense. For example, if a defendant goes to trial, is convicted, but then gets the verdict overturned on appeal, the double jeopardy clause normally does not prevent the government from retrying the defendant. That’s what happened in the famous case of Miranda v. Arizona. In that case, Mr. Miranda was convicted for the kidnapping and rape of an eighteen-year-old woman, but because police had not informed Mr. Miranda of his rights to obtain an attorney and remain silent during his custodial interrogation, the United States Supreme Court overturned his conviction. Because the double jeopardy clause did not prevent the State of Arizona from retrying Mr. Miranda, the prosecutor filed the charges again. At the second trial, the prosecutor was not allowed to present evidence from Mr. Miranda’s confession. However, the victim was able to testify against Mr. Miranda, the jury found him guilty, and the judge sentenced him to prison.

With respect to the “Double Jeopardy” movie, the wife’s problem is this. When a grand jury or prosecutor accuses a person of murder, they charge that the murder took place at a particular location and time, and double jeopardy applies only to the murder that took place at that particular location and time. So, if the wife in “Double Jeopardy” were to kill her husband at a different location and time, then double jeopardy would not apply. Therefore, the inmate that told the wife that if she found her husband alive, that she could kill him with impunity, was wrong.

As far as what happened to the husband and wife in “Double Jeopardy”, the wife does eventually shoot and kill the husband in a shoot out. However, it would have been the law of self-defense, rather than the law of double jeopardy, that would have determined whether or not she would have been convicted of murder.

To learn more about the law of self defense in Florida as well as the Florida Stand Your Ground Law, click here.