Categories
Criminal Procedure Uncategorized

What Is A Plea Agreement?

Resolving a criminal case often involves a Negotiated Plea, or as it is probably more commonly known, a plea agreement. A Negotiated Plea (or plea agreement) is when the prosecutor offers the defendant a deal to plead guilty or no contest to the offense in exchange for some reduction in the criminal charges or sentence.

Plea Areement

A plea agreement regarding charges involves a defendant pleaing guilty or no contest to a lesser charge, or have some of the charges removed in exchange for an admission of guilt or no contest on the main charge.

A plea agreement regarding sentencing takes place when a defendant, knowing in advance both the maximum penalties for all criminal charges and what the sentence will be if he or she pleads guilty, is offered a deal regarding certain, usually lesser, sanctions in return for a guilty plea, and is punished only for these charges and subsequently avoids the maximum penalty for the original charges.

Criminal defendants offered a plea agreement should always consult with a criminal defense attorney before accepting it. The possibility always exists that a defense attorney may have the ability to get the criminal charges reduced or dropped before any Negotiated Plea. More importantly, defendants must make sure they understand every term of the plea agreement and clearly acknowledge all of their obligations thereunder.

Court Approval

A plea agreement requires the Court’s approval. Typically, if the court does not approve the agreement, a defendant is instantly entitled to withdraw the plea.

Post-Plea Options

Occasionally, even though he or she agreed to it, a defendant may be unhappy with the negotiated plea. The rules provide for a withdrawal of the plea, if requested within 30 days and if other requirements are met to the Court’s satisfaction.

Prosecution’s Failure To Honor Plea

Florida appeals courts have stated that when the prosecution fails to honor a plea agreement, “the violation of the agreement is akin to a breach of contract for which the defendant is entitled to seek a remedy.” Thus, if the prosecutor fails to uphold the state’s end of the agreement, defense counsel may file a complaint to force the prosecution to comply or to have the plea bargain set aside.

If you are a potential defendant in a criminal case and have questions about a possible plea agreement, call Alan Fowler, an experienced Key West criminal defense attorney, for a consultation at 305.912.2516.

Categories
Drug Offenses Search & Seizure Uncategorized Warrants & Arrest

Can I Be Charged With Trafficking If I Simply Possess Drugs?

Perhaps because it’s a peninsula surrounded by ocean, Florida attracts not only countless tourists, but also smugglers, including and especially those that deal in drugs like marijuana, cocaine, and heroin. Many folks vacationing in the Sunshine State are not shy about pursuing their perception that drugs are readily and cheaply available in Florida.

Unfortunately, what usually is only a desire to use the drug and get high often leads to criminal charges that carry fines much more severe than one would think for what may be a one-time transgression, i.e., simple use of the drug. Especially since Florida prosecutors, fully aware of the situation in their state regarding illegal drugs and tourists, aggressively prosecute such cases.

Specifically, the problem lies in the language of the Florida Statute §893.135 that defines “Trafficking” in the context of drugs or controlled substances:

Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of [a certain] amount of a controlled substance or illegal drug.

Thus, Florida law states that anyone knowingly in actual or constructive possession of a threshold amount of a controlled substance or illegal drug may be guilty of trafficking, which is obviously a much more severe offense, since it involves the act of selling drugs. Florida drug trafficking statues have explicit quantities of each substance for the charges to qualify. Thus, a tourist in Florida may purchase a certain quantity of marijuana and then, based upon the weight of the drugs, be charged with trafficking instead of possession. All Florida drug trafficking crimes are first-degree felonies and carry mandatory sentences, which significantly harshen the consequences for what may be mere possession.

Defendants charged with trafficking often are in the wrong place at the wrong time and may not even have knowledge of the trafficking, or even the presence of drugs. Some individuals charged with trafficking may have been in vicinity of the drugs only because they were buying a small quantity to possess for use. An experienced criminal defense attorney will challenge all of the aforementioned circumstances and help bring the truth to light to reduce a trafficking charge to mere drug possession.

If you are a Florida resident or a tourist that has been arrested for drug trafficking based upon evidence that suggests a mere possession charge or even less – dismissal of all charges, call Alan Fowler, an experienced Florida Key West criminal defense attorney, for a consultation at 305.912.2516.

Categories
Driving Under the Influence (DUI) Uncategorized

What You Need To Know About DUI Diversion Programs: Back On Track

The “Back On Track DUI Diversion Program” is a program for first time DUI offenders that is operated by third-party non-profit organizations in conjunction with the Monroe County Office of State Attorney. The program allows qualifying first time offenders to have their DUI charge reduced to Reckless Driving with a Withhold of Adjudication, following completion of a set of requirements and conditions. Those conditions and requirements of the program may be completed outside Monroe County and even outside of Florida. An experienced Florida criminal defense DUI attorney can assist all drivers eligible for the program.

To qualify the defendant driver:

  • Must not have any alcohol-related driving history, where the disposition was either withhold of adjudication or a conviction.
  • May have no prior felony convictions or withholds of adjudication,
  • May have no prior misdemeanor convictions or withholds of adjudication.
  • May have completed no more than one misdemeanor diversion program and no more than one felony diversion program.
  • Must have a breath, blood, and urine BAC level under 0.25.
  • Must not have been at fault on an accident, if one was involved as part of the incident. (Usually, drivers in single-car accidents with no significant damage to other property may still be eligible for the back on track program.)
  • Must not have had any minor children in the vehicle at the time of the arrest.

Drivers charged with DUI that meet the admission criteria will qualify for either the Tier One or the Tier Two Diversion Program. The distinguishing factor between the two tiers is the BAC level of the driver. Drivers that refuse a blood, breath, or urine test, or have a BAC of .15 or higher qualify for the Tier Two program, while drivers with a BAC of .15 or below qualify for Tier One.

Both Tier One and Tier Two drivers may not use alcohol while in the program. Tier One Drivers participate in the program for nine (9) months, perform forty (40) hours of community service, and are subject to a ten-day impoundment of their motor vehicles. Tier Two drivers participate for twelve months, perform sixty (60) hours of community service and, in addition to the ten-day impoundment, may have a breath alcohol ignition interlock device installed in their automobiles for three months. Community service may take place at any not-for-profit organization with the approval of the enrollee’s probation officer. Some of the program’s other requirements are for the defendant driver to submit to drug testing and attend substance abuse classes and counseling.

Defendants will be denied admission into Back On Track if they had been arrested for DUI during the period of a suspended license. They will not be denied admission, if a license suspension period has expired and they were eligible to obtain a license, but had not yet done so when arrested for DUI.

If you have questions about whether qualify for the Back On Track DUI Diversion Program in Monroe County, call Alan Fowler, an experienced Florida Keys criminal defense attorney, for a consultation at 305.912.2516.

Categories
Driving Under the Influence (DUI) Florida Criminal Statutes Uncategorized Vacation Crime Warrants & Arrest

The First Ten Days After A DUI Arrest

In every Florida DUI case, there are two considerations: the criminal case and the administrative suspension of the driver’s license by the Florida Department of Motor Vehicles. This blog post concerns how to protect your rights in the administrative suspension case.

The Rules for Driver’s License Suspension

From the date of an arrest, drivers in Florida have ten days to proactively take steps to affect the status of their driver’s licenses. The length of a license suspension depends on whether a Florida driver refuses to take a breath test. Refusing to submit results in a longer suspension. Accordingly, if a driver submits to a breath test, resulting in a reading of .08% or higher, the suspension will be for six months. If a driver refuses to submit to a breathalyzer test, it will result in a one-year license suspension. For second-time offenders that have had a license suspended in the past for DUI, the suspension is eighteen (18) months.

The First 10 Days

During the first ten days after an arrest for driving under the influence, the driver has a very important decision: what to do about the administrative suspension of the driver’s license? Florida Statute § 322.2615 provides “[t]he driver may request a formal or informal review of the suspension by the department within 10 days after the date of issuance of the notice of suspension or may request a review of eligibility for a restricted driving privilege under s. 322.271(7).”

Request Formal or Informal Review of the Suspension.

An option after a DUI arrest is to request an Administrative Review Hearing to determine if the officer had probable cause to make the arrest. This hearing may be formal or informal. Once an administrative review hearing is requested, the driver will be issued a permit that will be in effect for and expire in 45 days. In the interim, the hearing will occur before a hearing officer, who will determine, among other things, if the police officer had probable cause existed to make an arrest and request a breath test. If the hearing officer finds that no probable cause existed, the license suspension is reversed, and the driver’s license is reinstated. If the hearing officer finds that that probable cause existed for the arrest, the suspension is upheld. Then, the ensuing possible suspensions will be 30 days (if a .08% or more resulted) or 90 days (if a driver did not submit to a breath test) before the next option may be pursued.

Request a Review of Eligibility for a Restricted Driving Privilege Under §322.271(7).

Another option is to request a review of eligibility for a restricted license, called a Business Purpose Only License. This process allows drivers to waive their rights to an Administrative Hearing and, in exchange, immediately be eligible for a Business Purposes Only (BPO) license. This option is only available to individuals who have never had a prior DUI, administrative suspension, or DUI conviction. Drivers must enroll in DUI School to be eligible for this option, and they must show proof of enrollment before being issued a BPO license.

Third (And Worse) Option

Of course a driver may always just do nothing, which is not the wisest course of action. If arrested for DUI, a driver should immediately enlist the services of an experienced criminal defense attorney to not only plan and strategize a defense to the charges, but also, assist the driver in procuring any possible use of his or her driver’s license during pending court proceedings. Nonetheless, a driver may simply passively allow the suspension to take effect, causing the loss of driving privileges for the statutorily mandated period of time.

Please also note that the aforementioned rules and process is larger governed by the Florida Administrative Code, which is also subject to change (perhaps more frequently than Florida Statutes). Thus, you should contact our firm to have a discussion about your rights.

If you have been arrested for driving under the influence, especially if in the last twenty-four (24) hours, and wish to take the steps necessary to ensure that you have the most access possible to the use of your driver’s license, call Alan Fowler, an experienced Florida Keys criminal defense attorney, for a consultation at 305.912.2516.

Categories
Florida Criminal Statutes Uncategorized Vacation Crime

Making Noise And Disorderly Conduct Crimes

The Florida Constitution, states that “it shall be the policy of the state to conserve and protect its natural resources and scenic beauty. Adequate provisions shall be made by law for the abatement of air and water pollution and excessive and unnecessary noise.” (Florida Constitution, Article II, Section 7). Florida regulates conduct in public places through Florida Statute §877.03, which lists activities that our Florida legislators consider “disorderly” or a breach of the peace. The blog posts examines the criminal regulation of noise and disorderly conduct crimes.

Governing Law

Pursuant to Florida Statute §877.03,

“[w]hoever commits such acts as are of (1) a nature to corrupt the public morals, or (2) outrage the sense of public decency, or (3) affect the peace and quiet of persons who may witness them, or (4) engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor.

Some typical examples of disorderly conduct include excessive noise, loitering in certain areas, disturbance of the peace, inciting a riot, obstructing traffic, and use of extremely obscene or abusive language. Paragraph Three describes acts that “affect the peace and quiet of persons who may witness them,” thus including noise-causing activity as conduct that may be actionable as disorderly or a breach of the peace.

Florida law limits the sound levels of motor vehicles. The limits are from 72 to 90 decibels, depending on the type, speed and age of the vehicle, and apply within fifty (50) feet. It’s also illegal in Florida to modify an exhaust system to make the vehicle louder. The law exempts certain vehicles like emergency and racing vehicles. Those who violate this statute are subject to a traffic ticket. In 2012, the Florida Supreme Court overturned a state law that made it illegal to play music on a vehicle radio that can be heard from a distance of 25 feet away.

Let’s not forget that offenders may also be subject to city and county fines for disorderly conduct. The Key West Municipal Code purports to establish specific permissible noise limits in order to provide for the abatement, prevention and prohibition of excessive and unnecessary noise so as to protect the health, safety, and general welfare of the residents of the City of Key West. It further states that it shall be unlawful for any person(s), to permit, cause, allow, amplify, create, emit, or sustain unreasonably excessive noise on any property, including air space thereof, located in the City of Key West. Unreasonably excessive noise shall be that noise which exceeds the noise limitations as defined by the Municipal Code.

If you have questions about disorderly conduct or breach of the peace, or some other violation especially involving excessive noise under Florida law, call Alan Fowler, an experienced Key West criminal defense attorney, for a consultation at 305.912.2516.

Categories
Florida Criminal Statutes Uncategorized

Entrapment In Florida Criminal Cases

Entrapment occurs where police have improperly induced a person to commit a crime and when the person induced was not otherwise predisposed to engage in such conduct in the first place. In Florida, the entrapment defense was created by the courts to secure justice by precluding the government from convicting a defendant of a crime where government action itself is responsible for the defendant’s conduct. Dial v. State, 799 So. 2d 407, 408 (Fla. 4th DCA 2001). The defense is very significant, for a criminal defendant successfully raising entrapment will have all charges dismissed, if a showing is made that the government was improperly involved in the creation of the criminal activity.

The underlying public policy to the entrapment defense is that is it is fundamentally unjust for law enforcement or other government agents to originate a criminal design, implant in an innocent person’s mind the disposition to carry out that criminal design, and then induce commission of the crime so that a prosecution may take place. State v. Perez, 438 So. 2d 436, 438 (Fla. 3d DCA 1983). In essence, entrapment is a prohibition on police investigative techniques that are calculated to “create” criminals rather than to apprehend those individuals who are already of a criminal mindset. If successfully raised, an entrapment defense can excuse an otherwise criminal act or, in some cases, result in a dismissal of criminal charges.

Florida law recognizes two forms of entrapment: (1) “subjective entrapment,” and (2) “objective entrapment.” The subjective test for entrapment is applied in cases where law enforcement conduct is not so egregious that it violates basic principles of due process. Sallomi v. State, 629 So. 2d 969 (Fla. Dist. Ct. App. 5th Dist. 1993).

Florida Statute § 777.201 sets forth the following:

777.201 Entrapment.

(1) A law enforcement officer, a person engaged in cooperation with a law enforcement officer, or a person acting as an agent of a law enforcement officer perpetrates an entrapment if, for the purpose of obtaining evidence of the commission of a crime, he or she induces or encourages and, as a direct result, causes another person to engage in conduct constituting such crime by employing methods of persuasion or inducement which create a substantial risk that such crime will be committed by a person other than one who is ready to commit it.

Thus, entrapment occurs if law enforcement, for the purpose of obtaining evidence of a crime, employing methods of persuasion or inducement, encourages a defendant to engage in criminal conduct and further creates a substantial risk that a crime will be committed by a person other than one who is, in fact, ready to commit it, and directly results in the the defendant engaging in criminal conduct.

Paragraph Two (2) of the statute not only states that the issue of entrapment shall be tried by the trier of fact, but that the accused shall be acquitted, if he or she proves by a preponderance of the evidence that the criminal conduct occurred as a result of an entrapment. The burden of proof then shifts to the prosecution to prove beyond a reasonable doubt that: (1) the accused was “predisposed” to commit the alleged crime, and (2) the accused’s predisposition to commit the crime existed prior to and independent of the inducement or encouragement by law enforcement.

Florida also recognizes “objective entrapment,” which is applied in entrapment cases involving law enforcement conduct that is sufficiently egregious to be evaluated under the due process provision of the Florida Constitution. The totality of the circumstances must be reviewed by the court to determine whether police conduct violates a defendant’s due process rights.

In State v. Finno, 643 So. 2d 1166 (Fla. 4th DCA 1994), held that the dismissal of charges was warranted by the defendant making a showing of objective entrapment. In Finno, results of an investigation did not produce any evidence of any criminal conduct. Thus, the law enforcement agency involved began showing the defendant how to conduct a “loan sharking” operation. Once law enforcement succeeded in inducing the defendant to commit a crime, he was arrested and prosecuted.

The court stated that “where the government supplies all of the instrumentalities of a crime, controls all of its aspects, and teaches the intended target how to commit the crime for the purpose of arresting him, as the trial court found here, there is no crime at all without the government involvement. No legitimate objective of government is accomplished by prosecuting a crime so totally and completely orchestrated by the government. We conclude that this activity violates due process.” Finno at 1169.

If you have questions about any criminal defenses, including entrapment, under Florida law, call Alan Fowler, an experienced Key West criminal defense attorney, for a consultation at 305.912.2516.

Categories
Criminal Procedure Uncategorized

What Does It Mean To Withhold Adjudication?

Pursuant to Florida Statute §948.01, judges in Florida’s criminal courts are vested with the special authority to “withhold adjudication” in Florida criminal cases. This is law that greatly aids Florida defendants. This blog post explains a “withholding of adjudication,” a concept with which most people are unfamiliar.

Basics

Let’s start with the basics. When a person is charged with a crime, they generally have three courses of action: 1) defend himself at trial, 2) plead Guilty pursuant to a negotiated plea agreement with the prosecution, or 3) plead No Contest pursuant to a negotiated plea agreement with the prosecution.

Here’s where things can get a little confusing. We are used to thinking of a criminal case in absolute extremes. Guilty or Not Guilty. You did it or you didn’t do it. It’s black or white. The Florida legislature, however, has created a gray area.

In Florida, when a defendant pleas Guilty or No Contest to a criminal charge, the judge makes a decision on whether the defendant should be “adjudicated guilty” or not. This decision is notable, because the decision of either adjudicating a person guilty or withholding the adjudication of guilt determines if the person is convicted. If the court adjudicates a person as guilty, then that person will be deemed convicted of the offense. In contrast, if the judge withholds the adjudication of guilt, then the person is not convicted of the offense.

Under the applicable Florida Statute, the withholding of adjudication is coupled with a period of probation, and, once the term of probation is successfully completed, the court is divested of jurisdiction and there is no adjudication of guilt. Phrased differently, at the successful conclusion of probation, technically speaking, a defendant would not be convicted of the charges.

Effect

Regarding misdemeanors, withheld adjudications have allowed defendants to avoid mandatory driver license revocations for drug convictions and points associated with traffic infractions. As to qualifying felonies, defendants avoid forfeiting civil rights, such as holding public office, the right to vote, and jury service.

The real world effect of a Withhold of Adjudication is extremely significant for job applicants. If a job applicant has received a Withhold of Adjudication, he or she reply negatively in job interviews and on job applications to any queries, regarding criminal convictions. Also, this same person may deny having a conviction, when testifying at a deposition or in court.

Exceptions

Withholding adjudication has come under constant scrutiny and attack by critics for its leniency. Several statutes, such as Florida’s DUI statute, contain limiting language that voids the withholding provision. Other Florida criminal statutes that treat the provision similarly are homicide, manslaughter, arson, aggravated assault and battery, child and elderly abuse, those involving acts of domestic violence, and sexual offenses. Also, the expungement and sealment laws in Florida prohibit the removal from public record certain offenses, regardless of the withholding of adjudication or not.

If you have been charged with a criminal offense and have questions about your case, including whether you qualify for the court to withhold adjudication under Florida law, call Alan Fowler, an experienced Florida Keys criminal defense attorney, for a consultation at 305.912.2516.

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Expungements & Sealments Uncategorized

Expungements & Sealments Part 3 What Can’t Be Sealed Or Expunged?

In past blogs, I discussed expungements and sealments, focusing upon what they are and their effects.

Quick Review
Expungement means petitioning the State of Florida to have a criminal record physically destroyed or removed from general review. Sealment is defined as having a criminal record taken from public view and access. The only way to then access such record is by court order to have it “unsealed.” Multiple charges under one case number may be expunged or sealed. Under Florida law, sealing or expunging a criminal record allows an individual, in most circumstances, to legally declare that he or she has not been arrested or convicted of a particular offense, including DUI, Driving While a License is Suspended (DWLS), and many other criminal offenses. If a job applicant is has been granted an expungement and is asked in a job interview or any other stage of the employment application process about the presence of a criminal record, the job applicant may legally and honestly reply, “No.”

What Can and Cannot Be Sealed or Expunged
Records of felonies may be expunged or sealed, but there is a long list of exceptions to this rule. Any offense, for example, that requires a mandatory prison sentence cannot be expunged. These crimes include rape, sexual battery, corruption of a minor, sexual imposition, or obscenity or pornography involving a minor. Violent felonies, first-degree misdemeanors, and those in which the victim is under 18, are also not eligible to be expunged. Also, motor vehicle or driver’s license violations, as well as bail forfeitures in traffic cases, may not be expunged. Since minor misdemeanors, such as possession of less than 100 grams of marijuana or certain disorderly conduct are not considered crimes, they cannot be expunged.

The expungement or sealment process may take anywhere from four to six months and requires the representation of a knowledgeable criminal defense attorney familiar with Florida’s requirements for the expungement and sealment of criminal records. If you have questions about these requirements under Florida law, call Alan Fowler, an experienced key west criminal defense attorney, for a consultation at 305.912.2516.

Categories
Criminal Procedure Uncategorized

How Do I Get A Continuance In A Criminal Case?

Criminal defendants sometimes have the need to continue their trial. Sometimes, they wait to the last minute to hire defense counsel. Court dates approach and counsel may have little time to prepare an adequate defense for the client. Other times, circumstances arise which simply require a delay in trial, whether for the benefit of the defendant, defense counsel, or the prosecution. The blog posts explains how and when to get a continuance.

Terminology
First, here’s a quick lesson in terminology. A “continuance” is the legal term for a delay, postponement, or rescheduling of a trial or other court proceeding. It’s used a noun (e.g. “The defense requests a continuance.”) and as a verb (e.g. “The judge continued the trial until next month.”)

Legal Rules
In Florida, a motion for continuance in a criminal matter is filed under Rule 3.190(g) of the Florida Rules of Criminal Procedure. Florida courts may grant a continuance in their discretion for good cause shown. Also, counsel for the moving party must file an accompanying “Certificate of Good Faith” with the motion for a continuance, stating that such motion is made in good faith and not for purposes of undue delay. The party who requests the continuance may file supporting affidavits to support the motion, and the opposing party to the motion may file counter-affidavits against the continuance.

Grounds for A Continuance
Some typical reasons for a continuance, especially pretrial, include the conflicting legal obligations of counsel, inadequate preparation time, illness, or (right out of the movies) a missing witness. A situation that may require a delay is where either the prosecution or defense counsel has a conflicting obligation which makes them unavailable for trial. Although, in this circumstance, a court may instead require a substitution of counsel rather than delay the trial.

Also, if counsel alleges that there was inadequate preparation time for trial, the court may grant a continuance. The court will consider the amount of time between retention of counsel and the trial date, counsel’s other ongoing obligations, and the complexity of the case. The parties may also stipulate to a continuance, but good cause is still required.

Other delays which may occur and, therefore necessitate a continuance, are the illness of the defendant, defense counsel, or the prosecutor. Defendants alleging some affliction or sickness must show that the illness will lessen their ability to assist counsel. Affidavits of the defendant’s attending physicians are often necessary to prove illness. Counsel alleging their own illness as grounds for continuance may do so by their own testimony to the Court, stating, among other things, that no substitute counsel is available.

A trial may be delayed if a defense witness is missing and unavailable. However, the defendant must demonstrate that he or she made an adequate effort to enlist the witness’s attendance and further that he or she did not cause the witness’ absence. Also, the defendant must show that the testimony of the missing witness is important to the matter, that there is no reasonable expectation that the status of the witness’s availability will change, and that the motion is not being made for the purposes of delay

If you have been arrested and have an approaching trial and have questions about moving for a continuance, call Alan Fowler, an experienced Key West criminal defense attorney, for a consultation at 305.912.2516.

Categories
Search & Seizure Uncategorized

Evidence in Plain View

Individuals in the United States are protected by the 4th Amendment, which prohibits unreasonable searches and seizures and requires the police to obtain a warrant, based upon probable cause, to search someone or seize property. Of course, as with most legal doctrines, there are exceptions. Depending on how to you think about it, the “Plain View” Doctrine is an exception to the 4th Amendment protections or does not constitute a search at all.

What is the “Plain View” Doctrine?
If in the course of a lawful search, police see items in plain view that are incriminating and/or have evidentiary value, they may seize the item, even if they have no prior authority (i.e. a warrant) to search for or seize that particular item. While the Plain View Doctrine is often considered an exception to the general rule that warrantless searches are presumptively unreasonable, an officer’s observation of an item left in plain view generally does not constitute a search under the 4th Amendment. Horton v. California, 496 U S 128 134 n 5 (1990) (citing 496 U.S. 128, 134 n.5 (1990) (citing Texas v. Brown, 460 U S 730 740 460 U.S. 730, 740 (1983). A person generally does not have a legitimate expectation of privacy in contraband left out in the open, which is viewed by an officer from a lawful vantage point.

The Court in United States v. Jacobsen, 466 109, 114 (1984) stated that “a seizure of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.” A seizure of property in plain view does not implicate the individual’s privacy interests; rather, it “deprives the individual of dominion over his or her property.” Horton at 133.

When does the “Plain View” Doctrine Apply?
Under the three-prong test of Horton, the following is required for the “Plain View” Doctrine to apply:
1. The officer must be lawfully present at the place where the evidence can be plainly viewed,
2. The officer must have a lawful right of access to the object, and
3. The incriminating character of the object must be “immediately apparent.”

Thus, objects falling in the “plain view” of an officer, who has a right to be in the position to have that particular viewpoint, are subject to seizure without a warrant. Also, when a search or seizure would require an officer have obtain a warrant or otherwise identify probable cause, an officer may use his or her lawful observation to provide grounds for such search or seizure. However, the “Plain View” Doctrine is limited by the requirement of probable cause in that officers must have probable cause to believe that items in plain view are contraband before they may search or seize them.

4th Amendment issues are a very fact and law intensize analysis, which needs the involvement of an attorney. If you have been arrested and such arrest is based upon evidence that may have been unlawfully seized by the police, call Alan Fowler, an experienced key west criminal defense attorney for a consultation at 305.912.2516.
Evidence in Plain View