The police took my money and car-can I get it back?

Being arrested for felony charges is shocking enough, but most people are confused by the police department's decision to seize a vehicle involved in the offense or money found on the arrestee.  The Florida Contraband Forfeiture Act provides law enforcement a civil court, as opposed to criminal court, tool to punish felony offenders.  The process allowed local Florida police agencies to collect more than $68 million over one recent five year period.

Our state legislature has been dominated by conservative lawmakers recently, and everybody knows that "tough on crime" politics plays better to the voting public than the alternative.  But a majority of those conservatives also frowned on the government's increasing ability to take away a citizen's property rights.  The 2016 revision to the Contraband Forfeiture Act represents an important shift to the benefit of many of my clients.

The seizing agency is now required to pay a $1000 filing fee and post a $1500 bond before beginning the process of permanently retaining any contraband article.  In practice, it doesn't make fiscal sense for the agency to try to keep cash amounts less than the combined $2500.  Most police or sheriff's departments will authorize their legal counsel to engage in settlement discussions with the arrestee, also called a claimant.  I have also found that the police will generally return vehicles to claimants who, even if they are not considered "innocent owners," do not have a significant amount of equity in the car.

The amendments also increased the burden on the police to prove their case in civl court so that it matches the standard in criminal court, beyond a reasonable doubt.  If the law enforcement agency loses, they are on the hook for a defendant's attorney's fees and costs if the Court finds that it acted in bad faith or grossly abused its discretion.

The recent changes to the FCFA are a welcome reformation of the civil asset forfeiture process.  They more closely reflect the presumption of innocence that is a cornerstone of our republic.  Feel free to contact Board Certified Criminal Trial Attorney Daniel Fischetti for more information.

Sunset Music Festival 2017

As tens of thousands of electronic dance music fans converge on Raymond James Stadium’s north parking lot in Tampa to celebrate Memorial Day weekend, concertgoers should be prepared for an enormous law enforcement presence both inside and outside the gates.  Although not all EDM aficionados dabble in controlled substances, the culture’s reputation combined with the overdose deaths of two young attendees last year forces the government to respond accordingly for 2017.  Anticipate drug sniffing dogs, surveillance cameras, hundreds of police and security guards, and searches of your backpack and person upon entry.

If you or a friend are going, the obvious advice is to be smart and stay safe.  That being said, I have represented multiple persons who have been arrested at Sunset Music Festival in previous years.  Most of them have been college-aged kids who made foolish decisions and ended up spending the night in jail instead of at SMF.  Here are some tips if you decide to go:

Although the city of Tampa does allow for the issuance of a civil citation for possession of marijuana, most people will not qualify and will be arrested instead.  Why?  The program’s guidelines state that, among other things, the suspect must qualify to be “released on recognizance.”  It usually means that you need to be a local resident.  So, if you live in Sarasota, Miami, Gainesville, Orlando, or Jacksonville you’re going to jail.

The program only applies to amounts less than twenty grams of weed, or about three quarters of an ounce.  It can be used only for simple possession, not delivery or possession with intent to sell.  Sharing with friends, having multiple baggies, or possession of drug paraphernalia (like scales), will cause the investigators to arrest you rather than fine you.  But if you’re caught with marijuana, the most compelling reason why the police will handcuff you and transport you to Orient Road Jail is so they can search you for additional contraband.

The most commonly discovered controlled substances at Sunset Music Festival are MDMA (including the derivatives nicknamed molly or ecstasy) and LSD.  Possession of these drugs is a third degree felony punishable by up to five years in prison.  Selling MDMA increases the penalty to a maximum of fifteen years in prison, while possession of more than ten grams becomes the crime of trafficking in Phenethylamines; a conviction brings with it a mandatory term of three years in prison.  Bail bond amounts start at $2000 per charge, and trafficking defendants are held without bond until they see a judge at first appearance either the next day (if you’re booked before midnight) or two days later.  Traditional bond amounts for trafficking in MDMA begin at $50,000, and you may be required to prove the source of the money used to pay the bond (commonly referred to as a Nebbia hold).

In my experience, the biggest danger to SMF17 attendees are the undercover police officers from the Tampa Police Department, Hillsborough County Sheriff’s Office, and other local agencies.  They have three years of experience targeting this specific festival.  They may not look like “typical cops,” and often sport beards or heavy tattoos.  If you are in a group of people and they smell marijuana, they have the legal ability to search each and every person in the group and their possessions.

If you are arrested, do not give a statement to the police.  Do not admit anything.  They will not cut you a break.  If your friend is arrested, do not interfere-you can be charged with obstructing the investigation.  The best thing you can do is to call a friend or family member who is not at Sunset Music Festival to begin the process of getting them out of jail.  For the college-aged crowd, do not be afraid to get the parents involved.  Many bail bond companies require security, promissory notes, and a percentage of the total bond (known as the premium) up front to get someone out of jail.  Don’t let your friend sit in jail any longer than necessary.

A local and aggressive criminal defense attorney should be contacted as soon as possible to facilitate the jail release process and discuss the options going forward.  It’s not all doom and gloom; I have been able to get entire cases dismissed and records expunged for clients arrested at SMF in Tampa.  As a Florida Bar board certified criminal trial lawyer I have the experience, skill, and reputation to properly counsel you or those close to you on the next step for prosecutions in the Thirteenth Judicial Circuit.  Feel free to contact me directly on my cell phone, 813.541.9504, for assistance over the holiday weekend.

Technical violations of probation can be dismissed on a technicality…if the timing is right.

When someone is placed on supervision, there are standard terms of probation that apply to all offenders in the State of Florida.  Picture the probation officer in loco parentis, ensuring that the offender reports monthly, has a job, keeps a stable residence, does not use intoxicants to excess, and the like.  As a child, your parent would enforce minor behavioral violations by taking away certain freedoms.  The Department of Corrections, however, prepares an affidavit of violation of probation and requests a warrant for your arrest.  But a technicality in the law is allowing VOP cases to be dismissed all over Florida.

Many offenders with an active VOP warrant can avoid arrest for months or even years before being captured.  Traditionally, the State would cite § 948.06(1)(f) to argue that the probationary sentence tolled, or paused, at the point the judge signed an arrest warrant.  But a closer look at the subsection showed that the Legislature specified what type of arrest warrant tolled probation-one issued under § 901.02.  And because § 901.02 only permits judges to issue arrest warrants where there is probable cause that a crime was committed, and a technical violation of probation is not a new crime, any VOP commencing with an arrest warrant for a technical violation would NOT toll the period of probation.  Such was the ruling in Mobley v. State, 2016 WL 1445595 (Fla. 4th DCA April 13, 2016). 

The Fourth DCA certified a question of great importance concerning the ruling to the Florida Supreme Court, which declined review on June 6 by a divided 4-3 majority.  This becomes the law of the land until a conflicting opinion issues.  In practice, I successfully gained the dismissal of a technical VOP in Polk County (Tenth Judicial Circuit) where the supervision time had expired before the arrest of my client without objection from the State last month.  The word around that jurisdiction was that judges will be issuing notices to appear (an exception rarely used in the past) on technical violations, preventing any new cases from slipping through the cracks going forward until the law is addressed.  Even though the trend of Alternative Sentencing Programs is increasing, every offender with an outstanding technical VOP needs to assess their end of sentence date to see if their case can be resolved without an arrest or revocation.