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Mike Kenny, attorney, Bauer, Crider, and Parry: So, the recap is the Miranda warnings themselves have five specific portions that must be read to a suspect. They have to be told they have the right to remain silent. They have to be told that they have a right to an attorney. They have to be told that if they can't afford to hire one, one will be appointed for them. They have to be told that they can exercise those rights at any time. The setting where Miranda warnings have to be read: it has to be in a custodial interrogation. Custodial meaning the person has to have his freedom of movement limited in .a manner that is objectively reasonable. Like people would expect. “Yeah, I can't go. I’m not free to go. I’m answering these questions.” Now, that particular aspect is a very heavily litigated aspect. Because there are times that the officer’s going to say, “Hey, listen. He wasn’t in custody. I was just, you know, I was just walking up to him and we are having a consensual encounter. This was just a normal conversation.” So, the inquiry to whether, or not. a person is in custody is very fact-specific and they look at the manner of questioning. They look at whether the person was told he or she was free to leave. Whether the officers came up with some show of force that would cause a reasonably objective person to believe that he wasn't as free to turn around walk away, or refuse to answer questions. And the courts are going to look at all that to determine whether, or not, that first box has been checked. “Is he in custody?” And then the second box, which is a little bit easier - interrogation. You know? Has he been asked questions designed to eliminate an incriminating response? Well, they look at what was asked? How was the conversation made? Is it that Christian burial speech which was clearly designed to get this person in the backseat to feel remorseful? And say, “All right. Let me tell you where the bodies are.” That is also heavily litigated. But the biggest issue is is the person custody or nor? Because putting handcuffs on you isn't the only time a person is in custody. And these Miranda warnings matter because what happens is that they're not read when they should have been, an admission to a crime is kept out of evidence. Or, not even an admission to a crime, but maybe an admission to being present when a crime was committed. Sometimes, you know, that's very important. Obviously, if a prosecutor is going to convict you of a crime they’ve gotta prove that you were there. And just being there puts you one step closer to committing the crime.in a law-enforcement officer’s perspective, perhaps. So, you get to keep all of that out, if a person should have been warned, and they weren’t. It doesn't make the crime go away. It doesn't mean that the arrest was bad. All it means is that the answers that you may have given in response to interrogation should have been warned. And because they weren’t, the cure is we keep those statements out. That's the punishment. It’s basically pursuant to the exclusionary rule, they keep that set of factors out of evidence. A.nd this comes up in every single crime there is. It comes up in DUI arrests. It comes up in robbery arrests. It comes up in homicide cases. Sexual battery cases. I can't tell you how often in a sexual battery case the investigation involves two people. Most the time, people don't commit a sexual battery in the middle of a football field. Most the time it happens, most crimes,, most very serious crimes, happen away from public view. So, you have one witnesses account, the victim, perhaps. And then you have what the defendant said. What the suspect said. And there are plenty cases where a suspect may be thinking he’s doing himself a lot of good by saying, “I didn't do anything. I didn't touch her. She was there, but we didn't have sex.” But, maybe, he think that's very helpful. But it’s not helpful if a DNA test is performed, and they actually find the suspect’s DNA. That just shows that he lied. And lying, is maybe enough for this prosecutor to present to the jury that this victim accuses him of a sexual battery. This person lied about a consensual encounter. And this prosecutor would ask a question, “Why on earth would he lie about had it not been because he was afraid of getting caught?” And that's why it's crucial, when a person gets contacted by law enforcement, and they say, ”Hey, listen. We’re investigating something. We need to answer some questions.” The first thing you do is, is tell him. “Hey, listen. I don’t want to answer any questions right now.” And you contact a lawyer. You find a lawyer. You tell the lawyer what's going on, and then that lawyer would reach out to the law-enforcement officer to get an idea. “Is my client suspect? Are you investigating his potential involvement in a crime?” And then, we can make an educated decision on whether or not we’re going to answer any questions, or answer no questions at all. B: So, I mean, the best advice I’m hearing out of all this, is a experienced criminal defense attorney, Mike. Those two, you know, first important factors: the right to an attorney, and then the right to remain silent. Those are the things that you recommend most. Right? Get the attorney. M: Sometimes, yes. Everybody in the United States has a shield. And that shield is the right to a lawyer, and that right to remain silent. Everybody has that shield. The problem is that shield’s no good if it's sitting on your back and you're not using. So, the Miranda warnings are designed to let you know you've got the shield. You can use it if you want. But the people have to understand that you’d better use that shield. B: Right. M: It’s much better to decide later, after contemplation of looking at what's at stake, and looking at what the facts are, to decide whether to answer a question. Than on a whim; not use your shield and just walk into the lions’ den, as I’ve said. B: All right. You’ve been listening to Mike Kinney floridadefense.com podcast. That concludes our series on discussing the Miranda rights.

Mike Kenny, attorney, Bauer, Crider, and Parry: Now, this changes a little bit when we’re talking about not adults. When we’re talking about juveniles. I mean, these are very significant rights. And these rights have a very significant consequence on a person's future, on that person's liberty. So, we can understand when an officer reads, perhaps, a 16-year-old or 17-year-old his Miranda warnings. You know, that 16 or 17-year-old might not have that same capacity to understand the gravity of where he is, and to understand that hey, he’d better exercise his rights. So, in the state of Florida, what has happened as a sort of protection in juveniles circumstances, is that law enforcement must make an effort before interrogating a juvenile suspect. Must make an effort to contact the parents, and notify the parents of that interrogation or that questioning is going to take place. B: How is that effort documented? M: How is it documented? A lot of times it’s documented through the officer writing a report, and saying whether or not he or she attempted that contact. A lot of times, whether they wrote it, or not, in felony cases we’re allowed to subpoena the officer in and have them testify and talk about the whole process. I don't want to know just about know what crime that the officer’s investigating. I want to know from point A to point B how we got, you know, to my client and how this whole identification of my client as a suspect, and how we began to question my client. So, you know, that's one of the first questions that I would ask when it comes time to find out how they questioned him is, “Did you did you attempt to reach the parents?” They don't have to make contact. They don't have to get then. They don't have to wait an inordinate amount of time. What they have to show is they made an effort to reach the parents. Obviously, one of the other things I do is I talk to the parents of my client. And say, “Hey, did anyone try to contact you when he was at school and they were asking questions?” So, you usually get to the answer very quickly. And if the officer demonstrates that he made an effort to reach out, then he may have met that hurdle. That one necessary hurdle to show that our client's rights were protected. Now, I will tell you that the failure for the officer to reach out to the parents isn't an absolute. It doesn't mean that any statements made must be suppressed. But it tends to show that the officer failed. That he didn't follow a specific protocol, and he's got more of a difficult battle trying to establish that our client's rights were diligently protected. And, even more so, they’re going to have to explain how this sixteen-year-old, who may have waived his rights, was of the capacity to understand the rights, and know that the significance of waving those rights. The aspect that is to me, that I see often in juvenile cases, and I represent plenty of juvenile clients, and I have plenty of cases pending right now with very similar factual situations, is when the officer is questioning the person, “Is that person in custody, or not?” What I can tell you is, on some cases that I've had very recently, what you have is the questioning occurs at school. In Florida there’s a lot of school resource officers and they have an office in the school. And sometimes what will happen is that a detective whose investigating a crime may contact the school resource officer and confirm a particular student is in attendance at that school. And ask that resource officer to reach out and talk to this student. Now, this is important, because how does that happen? How does a school resource officer make contact with a suspect in school? I can tell you what normally happens, what happens in every case probably that I've had, is that the school resource officer sends a note to the classroom asking the teacher to send the student to his office. Now, why is that significant? Well, when a student is sitting in a classroom he can't just go wherever he wants. He’s got rules he’s got to follow. And when his teacher says, “John Smith, you need to go to officer Smith's office.” Well, obviously, the question is is he in custody? And my argument is: you bet the is. The student’s got no other choice when he sitting in a classroom where to be. And then when his teacher says, “You go there.” He’s essentially been directed to go into the interrogation room. And that is an instance where I would argue that that person needs to be read his Miranda warnings because he is definitely not free to leave. The student walks up to the school resource officer's office, and as nice as they may make the setting seem, and as conversational they may make things seem, my argument and my position is once he gets commanded to go to that office ,he is in custody. If this officer is going to ask my client any questions that are designed to elicit a response that may incriminate him, then I’m going say the warnings better have been read. And if they’re not, officer maybe asking questions at the detriment of his case. The other aspect that is that is crucial here is a lot of times conversations start before a person is fully identified as a suspect. A lot of times, or maybe a brief description about a person who may have been involved, and so, sometimes officers if they don't have a person fully developed yet. Especially, maybe a schoolyard setting, like we were talking about before, may have a conversation with someone and begin to talk with them. And maybe, during that conversation when the officer’s asking questions the suspect may elicit a response admitting to being present when a crime was committed. Or, admit to being involved in a crime. And at that point, maybe the officer is clued in. “All right, this is the guy. I’ve got my guy. And then the officer reads the Miranda warnings. Now, there has been a lot of litigation about this particular issue. It’s almost kind of liked to ‘letting the cat out of the bag’. And what used to be a very common practice, with some investigators, is that they would have a person who’s sort of stopped. Not really in custody. And they begin to just have a conversation with that person. Ask that person questions. And that person fully admits to being involved in a crime. At this point, the officer then would read Miranda warnings after the fact. And then after the fact, say, “Hey, listen. You just told me you committed this aggravated battery on this person here at school. I’m going to read you your rights. You the right to remain silent. You the right to an attorney. If you can't afford one, one will be appointed for you. You can exercise these rights at any time.” He would tell them all those things, and then say, “Hey, everything that you just told me, was that true?” And the person would shake his head, “Yeah.” And then the officer would write in his police report, “Client just admitted, post-Miranda, meaning after I read him his warnings, that he was involved in this crime.” Well, a lot of lawyers in the area said, “Well, this doesn't make any sense. I mean obviously this guy, once he answers questions before, and he hasn't been warned, and he said ‘Yes, I am involved in this crime.’” “What’s he going to do? Change his story after the officer reads him his Miranda warnings?” So, the courts have said that you can't cure the defect by reading him his rights and getting him to admit again. And you kind of ‘let the cat out of the bag.’ The protections that the Miranda warnings were designed to provide have absolutely no impact when the person’s already admitted. And say we’re not to introduce that admission into evidence; we’re going to introduce the post-Miranda admission in. But what's the point? What is any reasonable person going to do what he just realizes he admitted to a crime, and the officer Mirandizes him, he’s probably going to say the same thing. “Yeah. I guess I already told you. So, here I am. I guess I'm ‘in for Penny in for a Pound.’” So, courts have had said that law enforcement needs to be very careful about having this sort of interrogation, and then Mirandizing after, and then asking follow-up questions after that. In most cases, and obviously it’s very factually specific, most cases that would be deemed to be a violation of the Miranda warnings. So, the reason Miranda warnings are so important, they may not make an arrest go away or charge go away. But they're so important because a lot of cases the interview of the suspect, or the admission of the client, is a very crucial piece of evidence for the prosecutor. And that's why, you know, for my position, I really never see the benefit, and just walking in and answering a whole bunch of questions. I really never see the benefit because if the office’s believe a person committed a crime, and they believe they have probable cause to make the arrest - they're going to make the arrest whether you say you did it, or you didn't do it. And all a person walking in there, answering questions, is going to do, is potentially add evidence to the case. And if the case is weak, and the officer doesn't know whether a crime happened, you walking in there and telling him you didn't do it, isn't necessary going to help the case. And potentially, it could lay the groundwork that you said something that isn’t particularly helpful down the line. So, if the case is weak, they’re not going arrest if they don’t have probable cause. And if the case is strong, they're going to arrest. So, walking into the lions’ den and answering the questions probably isn't the best strategy. And, I at least would want to know about what the facts of the case are, and what this officer’s looking for beforehand. So, the Miranda warnings, as I was talking about, the failure for an officer to read them, may not have the impact that everyone expects. It may not make the crime go away. And in certain crimes it may have absolutely no impact at all. The state may still have enough evidence that they believe that they can prove, beyond a reasonable doubt, that a person committed a crime. The cure for, if a person answers questions when he’s in custody and he’s interrogated, the cure for that defect is that they keep all the statements out. So, all the evidence is still there they had up to that point, but any statements or admissions would be kept out. So, in some cases it’s crucial. In some cases, those cases like constructive possession cases, or those cases where there really isn't an identity of a suspect, it's a major piece of evidence that, you know, prosecutors are going to fight like heck to keep in. And, obviously, I’m going to fight like heck to keep out. In a nutshell, Miranda warnings stand for the proposition that you the person being questioned have these rights. Although, you’re intimidated, although you have this fear of being investigated by law enforcement, you still have that power to say, “No. I don't want to answer any questions.” You still have that power to say, “I want my attorney here, by my side.” And if you don't have the financial means, you have the understanding that even if you don't have the money to, one will be provided for you. These are pretty crucial rights that a lot of us have heard time, and time again. It’s not necessarily the words that matter so much, as the act of the person asking the question. Saying, “Hey, listen.” You have this right. You have this power. Officers, oftentimes, don't want to get to that Miranda portion until they have too, because it does at times have a chilling effect on a conversation. And sometimes, when officers are talking with a person and it’s a freewheeling conversation, and it's a is a conversation where he's providing a lot of details and information, officers are kind of loathe to put a chilling effect on that by reading these Miranda warnings. And that’s what it does. It does have a bit of a chilling effect on the interaction. But they have to be very careful. Because if the person is in custody, and they’re asking him questions, they’re going to have to read him Miranda warnings.

Mike Kenny, attorney, Bauer, Crider, and Parry: The second portion of it, on Miranda, or I'm sorry interrogation. Interrogation is essentially what it is - a question designed to elicit an incriminating response. And, a lot of that, sometimes, believe it or not, is litigated. There have been cases where a person may have invoked his right to remain silent, and said he did not want to answer any questions. And officers would begin to have a conversation and begin talking. But not, claim they’re not asking questions. But, maybe in the way they design their questions. There is a famous case where there was a homicide, and there was a discussion about, you know, where, you know, the these poor victims that were killed, you know. Wouldn’t the parents like to see where they are? And just help these parents come find the body and give them a Christian burial, so to speak. And the conversation between the officers in the front seat of the car, where the gentleman in the back is hearing all this, the court was inquiring, “Was that conversation designed to elicit an incriminating response for him?” Where he says, “Well, all right. Listen, you go around the corner you’re going to find, you’re going to find where I buried everybody.” And courts look at the actions and intent upon the person making the statement. So, the short idea is, not every interrogation, necessarily, is a question. But it's, “Was it designed to elicit an incriminating response?” And, in that particular example, about talking about giving these children a Christian burial, you know, the courts were asked to interpret whether, or not, that conversation between two officers in the front seat driving the suspect around was designed to elicit an incrementing response from him. So, that’s the basics of Miranda. And when you get your Miranda warnings you have to be in custody, and you have to be propounded questions or you have to be questioned or spoken to in a manner that is designed to elicit an incriminating response. Now, when that comes up, when the person is in custody the officer has to read these warnings. And I get, all the time, people when they come, after they get arrested, oftentimes they tell me, “Hey, listen. Nobody read me my rights. You know? So, what does that mean?” And that’s the question, right? What does it mean if an officer has you in custody and does not review your Miranda warnings? And what it means is, it depends. That’s the short of it. It depends. There are plenty of cases were officers make an arrest and they don't ask any questions. And if they don't ask any questions the failure to read Miranda warnings is a irrelevant. It only matters whether, or not, a person is answering questions. And the reason why it only matters, is what some people might believe, “If I don't get my read my rights the arrest goes away, or the charge goes away,” is not accurate. The cure for the error in law enforcement, in failing to read Miranda warnings, the cure for that is that any statements made without being warned, when they should have been warned, any statements made are suppressed. Meaning they are kept out evidence. So, they don't make the charge go away, and they don't make the arrest go away. So, sometimes that matters, and sometimes it's completely has no impact on the arrest. And I’ll give an example when it matters. What comes up very often in drug possession cases. In Florida, we have an understanding of the law possession where it’s called constructive possession. And constructive possession means where a controlled substance may be in the possession of more than one person. And it’s not in the hands of the person, and it’s not in the pocket of the person, or on the body, or so near to them to be considered on their person. But it's maybe in the area. For instance, a car is the best example I can come up with. Two occupants in a vehicle. The vehicle is stopped for some for some traffic violation. An officer comes over the driver side of the window and maybe even notices in plain view a controlled substance sitting in the center console. Or, sitting on top of the center console. In that particular case you have a constructive possession issue. If the officer takes both of the individuals out of the car and begins to interrogate them. At that moment you would have a custodial setting, and you would have interrogation asking, “Hey, whose drugs are these? Where do they come from?” You know? “Who was using it.” That part is when the Miranda warnings would matter. If a person answered the question, and they said, “It was mine.” Or, another person said, “It was mine.” Those are very critical responses. Those responses are what the state would be able to use to show that this particular individual was in constructive possession of that controlled substance. So, if we have a case where there's occupants in a vehicle, and an officer stops the car. And an officer pulls both occupants out of the vehicle and begins to ask them questions without providing Miranda warnings. And maybe one of those individuals says, “Yes, the drugs are mine.” Well, that would be a crucial aspect in the defense of this case. Because what I would look at say, “Well, listen. My client was in custody. The officer began to ask my client incriminating questions, and the officer should had read him Miranda warnings.” The failure of the officer to do that means that I would ask the court to suppress my client's admission to the possession of the controlled substance found inside the vehicle. Now what does that mean in the big picture? Well, in the big picture, like I told you, Florida has a possession called constructive possession. In a constructive possession case, the State is required to prove that the person possessed a certain item. And in a constructive possession case they have to prove that the person knew of the item, and the illicit nature of that substance, and that the person had the ability to exercise dominion and control over that substance in the car. So, if you suppress a statement from my client where he admits knowledge of it, or he admits ownership of it, and all we have is a car with two people inside and a control substance found inside. Without that admission, I would argue there's a very good case to make that that possession case can't stand. The reason why it can't stand is because the State is without any evidence to show that my particular client, as opposed to the other individual in the car, was in constructive possession. Without that admission, the State will have a very hard job showing my client exercise dominion and control. The State would have maybe a less difficult time, but still a difficult time showing that my client had knowledge of it. In a constructive possession case you have to both know it's there, but knowing it’s there is not enough. You have to know is there, and you have to exercise that control over it like that substance is yours. You can think of plenty situations where a person may get into a car, and see maybe the driver of the car doing some that that is illegal, or that he would necessarily do it. Because you know the driver has a controlled substance doesn't mean you're exercising dominion and control over it. And that's what the courts are concerned about. So, that's where Miranda warnings and any maybe a motion to suppress the statement matters. That’s where if a cop fails to read you Miranda warnings, and the statement gets suppressed, that may have an outcome where the case actually gets dismissed. In another case, where officers observe a bank robbery, and see a person running out of a bank with a bag full of cash and a firearm in his hand. They can run up, they can arrest him, they can fail to read him warnings and the guy may make no statements. It really won't have much of an impact whether, or not, he read Miranda warnings or not because you have evidence that tends to suggest the officers observed a robbery in progress. B: Right. M: So, it matters. It's very fact specific what actually happened in the particular case. Now, we talked about it’s up to the person, it’s up to the client to exercise that right to remain silent. So, what happens if an officer reads a person Miranda warnings and the client says, “Listen. I’d like to remain silent. I don't want to answer any questions.” All questioning must cease. They don't get to ask him any more questions at that moment. There's also what must be understood there's two specific rights: there's a right to an attorney and there’s right to remain silent. So the person says, “I want my lawyer.” That's a very different right. That’s a right saying, “I want to have a lawyer. Either have one appointed for me before anything happens, or I don't want to do anything until I have a lawyer present.” A right to remain silent is saying, “I don't want to answer any questions at that moment.” That right can later be waived at some point. If an officer comes and asks a person a question again,, after a period of time, but an officer still has give the person a Miranda warning. So, the power, in essence, as far as the questioning of whether answer questions with the suspect. The suspect has that right to waive. And the suspect has that right to invoke his rights. And, of course, my advice to anybody is whether you think you're as innocent as possible, you never want to find yourself involved in a conversation with law enforcement where they’re investigating a crime without at least having a lawyer present. My advice is until we know what, in fact, the law enforcement is looking into. Until we know what the circumstances are, you always want to have a lawyer present with you, and you probably don't want to answer any questions. B: Use that right to remain silent? M: Absolutely. Absolutely.

Brad Post, host: Welcome to floridadefense.com podcast. We are speaking to Tampa defense attorney Mike Kenny. Mike, how are you doing? Mike Kenny, attorney, Bauer, Crider, and Parry: I'm doing well. How are you? B: I’m doing good. Well, today we’re going to be talking about Miranda rights. You always see on TV, you know, police officers reading criminals their rights. M: Sure. B: Talking about kind of when, why they’re being read those. When. Just kind of the purpose behind them. I'm sure you get a lot of questions on Miranda rights? M: All the time. All the time. B: So, let’s talk about it. M: All right. Well, so, the first thing is the rights that we talk about. Probably, as you mentioned, everyone, who's seen a TV show involving police, probably, at some time or another, have heard what these rights are. And they, the Miranda warnings, are very specific. The courts have ruled that there have to be essentially five warnings that are given to a person. And those five warnings are they have to be told that they have the right to remain silent. That’s the first one. The second one is that anything they say can be used against them, or will be used against them. The third one is that they have a right to a lawyer. The fourth one is that if they cannot afford to hire a lawyer one will be appointed to represent them. And finally, that they can choose to exercise these rights at any time. And it's these five rights, in a sense, sometimes different states, state attorney offices kind of hand out cards, to the local law enforcement, to read these cards that meets those five very crucial points in order to interrogate a suspect. And really, the real point of a Miranda warning is: most people probably have at least an idea that they don't have to answer questions. It’s not really designed to remind somebody of something. The Miranda warnings were developed in response to, you know, years ago people think about being interrogated, and they think about this dark room where they’re sitting under a bright light and there’s a whole bunch of officers propounding questions against a person. And it's designed to, kind of, take that stigma away from the questioning. Because when you're when you're answering questions, or being questioned by law enforcement, it has a very, quite frankly, scary impact. Even a person who’s a 100% innocent might feel nervous, might feel compelled to do something that he normally wouldn't do. Or, invite questions that he normally wouldn't invite. So, the idea was to take that stigma out of it, and to have the actual person interrogating you actually tell you, “You have these rights.” Sort of shows a transition of power. The person being asked is the person who has that power, and the power to exercise those rights. Now, Miranda warnings only come up in one specific legal setting. And that is during a custodial interrogation. All right? So, what that means is, a law-enforcement officer, if he engages someone in a conversation, and he's not in custody, that is not a situation that might require Miranda warnings. A lot of times, what I see in police reports, officer’s use the term ‘spontaneously stated.’ And spontaneously, obviously, by the definition means just uttered it without even being primed. Without even being questioned. And the reason why it’s significant is people can obviously say something on their own, offer something on their own; that might incriminate them. And the difference is, “Was that a setting where a person should have been warned?” And, not only should the person have been warned, but, “Was the statement that was made in response to a question, an interrogation?” So, the first thing that you have to have evaluated when a person provides statements. When I have a client who comes in, and there's there is some evidence to suggest that he or she may have made some statements that may be an admission to a crime, or tend to incriminate, the first question we have to ask is, “Was this a custodial interrogation?” That means you have to look at two aspects. Not only, “Was the person questioned?”, which is the interrogation aspect, but, “Was the person in custody for the purposes of Miranda?” What most people think of when they hear the term ‘custody’, is they think, you know, under arrest. And obviously when a person’s handcuffed, sitting in the back of a patrol car, or sitting in a jail cell, I don’t think there’s going to be any argument that that person is not in custody. But there are other instances where a person is in custody - for the purposes of Miranda. Meaning, he or she is not handcuffed, necessarily. He or she is not sitting in the back of a police cruiser, or sitting in a jail. There are some instances where a person willingly walks down to a police station to answer questions, and he sits inside a police station. And he is free to leave, and he's free to not answer those questions. For Miranda purposes, that is not a custodial interrogation. So, that wouldn't be a situation where a person would be required to have their Miranda warnings read to them. So, the custody part is a part that gets litigated at times, and it's very significant. And, for the purposes of this podcast, the idea that we need to understand is that a person has a freedom has been limited. That this person's freedom of movement has been limited by law enforcement. And that's the part where we ascertain that that person is in custody. Meaning, an officer’s conducting an investigation of some type. A person has been seized. He may not be handcuffed. He may not be under arrest. But at this particular moment he is not free to leave. And in that particular situation, he understands that he is not free to leave. And in that particular situation, he is in and custody for Miranda purposes. So, that's the first box that you have to check off – that the person's actually in custody. And things like this may come up when an officer’s doing a DUI investigation. And during a DUI investigation, the first thing that happens is the officer turns on his overhead lights, and a person has stopped the car. The officer maybe walks over to the car, as soon as the office has contact initially, he doesn't have to come out and just start reading Miranda warnings. He might have a conversation. and maybe when the officer detects some signs of impairment, and then begins a DUI investigation, it’s really at this point where it's clear, both to the officer and the person being questioned, that this person can’t just walk away. And at that point, if the officer’s going to start to ask some questions like, “Where we’re you coming from tonight?” How many drinks did you have?”, anything like that. That is something where he would be in custody, and any question that are going to be asked have to be warned first.  

floridadefense.com Podcast - #4FDP - Juvenile Battery   Brad Post, Host, Create the Movement Mike Kenny, Attorney, Bauer, Crider and Parry   Brad Post, Host, Create the Movement: All right. Welcome to floridadefense.com podcast. We are speaking to criminal defense attorneys in the Tampa-area Bauer, Crider, and Parry. We are speaking to Mike Kenney. And we are in this series on juvenile crimes. And we’re going to be talking basically today about a Tampa juvenile battery. And we're speaking to Tampa juvenile battery defense attorney Mike Kenny. And Mike, how are you? Mike Kenny, Attorney, Bauer, Crider and Parry: I’m doing well. How are you? B: Good. Good. Let’s kind of started on battery. M: Sure. Sure. B: Kind of mentioned before the podcast - fights in school. M: Oh, yeah. Yeah. It used to be maybe, when I was a kid going to school that if kids got in a fight they went to the principal's office. But nowadays, if kids get in a fight in school, a lot of times they go to jail, or the juvenile detention center. B: Right. M: And there is law enforcement involvement in most schools nowadays, at least in the state of Florida. And what happens with that is, obviously, a lot of things are better as a result of that. But there's also probably, a higher likelihood of there being state involvement on behavior that didn't always get that. So, fighting in school, and two kids get into fight in school, the likelihood is someone's going to get arrested, or charged. And when you have that, it's going to have, obviously, a significant impact on a young man or woman's life. And I'm sure a lot of parents would be very concerned, and want to do whatever they can to keep that child as mark-free as possible, as far as the criminal justice system is concerned. So, you know, battery, in the state of Florida, is defined as an intentional touching or striking of another individual, against that person’s will. Or, an intentional act causing bodily harm to another individual. And that can either be a misdemeanor or a felony - depending upon how the touching happens and the level of harm caused. So, in juvenile cases, it’s same exact statute as it is an adult court. So, you can have an aggravated battery, which could be the use of a deadly weapon to make contact with somebody. Or, the use of a deadly weapon to make contact with somebody that causes serious bodily harm. A felony battery would be causing serious bodily harm, but, without maybe, the use of a deadly weapon and without intent to cause serious bodily harm. And then you have your misdemeanor batteries. Which could be anything from a push, a punch, a slap -all of those things. And they all have different levels of punishment. But what’s important to note is, that when a juvenile’s accused of a crime, if it’s a felony, he doesn't have that same protection that he may have it was a misdemeanor, as far as juvenile court is concerned. There is a confidentiality that juveniles are afforded in Florida, but that confidentiality doesn't really exist at the same level, if at all, when juveniles are accused of felony cases. So, it’s very important to make sure, that if that comes up, that you have an attorney who knows what he or she is doing to best protect and insulate your child from having a very public record of a, what I would say, is a momentary lapse in judgment, or blip in his or her life. As a criminal defense lawyer, when you’re representing juveniles, your job is to make sure that one mistake doesn't become a lifetime of grief. And that's kind of what you have to be aware of when one you have a child who gets in trouble. And nowadays, when children get into fights, nowadays, there is a higher likelihood that the police are going to get called. And there’s a higher likelihood that there’s going to be an investigation. So, what I want to tell my clients, and the family members of my clients, is it's very important to understand that when someone from school wants to send your child to the police officer’s office there, that it's very important that everyone understands that their children still have a right to not incriminate themselves. They still have a right to have an attorney present. They still have a right to ask an attorney questions, and they still have a right to not be part of that interrogation. The biggest problem I've had, is I’ve represent plenty of juveniles who end up getting requested to go from their classroom to the police officer’s office, and the biggest problem I have is when juveniles walk into that office they believe that they have to go. They believe that they have to go in there because their teacher sent them there. And they believe that, I guess, it’s their job to sit there and answer the questions. And a lot of times that child is doing himself no good. Because he's basically providing the information to the person who’s one day going be on the opposite side of the courtroom trying to prosecute him for a criminal act. So, my job is to get involved early. My suggestion is if the parents know that something is going on, as far as the criminal act involving juvenile, you want to get involved early so you can prevent mistakes like these. I can do a great job, but it's always a lot harder to go back and try to make up for some mistakes that were made along the way before I got involved. And in battery cases, the biggest concern, obviously, is whether it's a felony or misdemeanor. And probably the second concern is going to be the cost of restitution, if there is any. Restitution being criminal courts order the defendant in a juvenile case to pay any medical expenses that the victim may have suffered as a result of this criminal act. And a lot of times the juvenile can’t afford that. So, the real person who’s on the hook is mom and dad. And these are important aspects to understand when you're getting involved in a criminal case. Which is why you want to hire a lawyer who knows what he’s doing. B: All right. Anything else on battery? M: No, sir. B: It seems, I agree with you, and when I was in school there was a little bit more discipline involved by the school than getting the police involved immediately. And nowadays, it’s just kind of an immediate. M: Right. B: A lot of schools even have police. M: Sure. Probably every public school in Florida probably has a school resource officer of some type at this stage of the game. B: Right. So, if you’re charged with that, it's important to contact Tampa juvenile battery defense attorneys like Bauer, Crider and Parry, that are experienced in juvenile matters. All right. You’ve been listening to the floridadefense.com podcast. Join us for our next edition.

Floridadefense.com Podcast - #3FDP - Juvenile Sex Crimes   Brad Post, Host, Create the Movement Mike Kenny, Attorney, Bauer, Crider and Parry   Brad Post, Host, Create the Movement: All right. Welcome to floridadefense.com podcast. We are speaking to criminal defense attorneys at Bauer, Crider and Parry, Mike Kenny. Mike, how are you doing today? Mike Kenny, Attorney, Bauer, Crider and Parry: I’m doing very well. How are you doing? B: Good. We are in the juvenile crimes, and today we’re going to be talking about juvenile sex crimes in Tampa. Previously, in our podcast, we did one on sexting. So, you guys can go back and listen to that. I think it was our number three podcast. But Mike, can you kind of give us an overview of juvenile sex crimes? M: Well, sure. There's a couple of major concerns in juvenile sex crimes. Sex crimes, in and of themselves, have that very daunting perspective from a person who’s accused. Nobody wants to be accused of something like that. It's kind of one of those things that once that bell is rung, it's really hard to escape that type of accusation in your normal life. Even if you're successful in being acquitted. It has a very significant impact on a person's life. And the sex crimes in juvenile court are going to be the same types of sex crimes that are prosecuted in adult court. You have crimes like sexual battery. Which is essentially what some people might commonly understand is what's called a rape. You have lewd or lascivious molestation which is the touching of a person, under the age of 16, over their clothing, on their chest, buttocks or crotch. You know? The sexual organ area. You have lewd or lascivious battery which is the penetration of the genital area by another person, and the victim is under the age of 16-years-old. They’re all the same types of crimes. What's unique is that in juvenile cases age of the offender is very significant. And I can tell you the biggest reason why it’s significant is the registration requirement. A lot of people out there might realize that people who were convicted of sex crimes may have to register as sexual offenders. That's the case in the state of Florida. Anybody who’s convicted of a sex crime has to at least register as a sexual offender. Well, when you're a juvenile, depending on how old you are, if you're convicted of a sex crime you're going to have to register as a sexual offender. And that's something that your lawyer is going to want to know. Because, he’d better know, I should say, what the age is, and what the age requirements are. And in Florida, the age is 14. A person is accused of committing a crime at the age of 14, and is convicted of committing a sex crime, he or she is going to have to register with the state of Florida as a sexual offender. That means this 14-year-old, going on 15, 16, is going to register. And it’s going to be public record, this person is convicted of committing a sex offense. Now, just imagine what kind of impact that has on a 14 or 15-year-old. And just imagine how difficult that's going to be for a person of that age to ever start life off on the right foot. Now, if the person was just a few months younger, 13-years old, and is convicted the same exact act, that person is not going to have to register. So, it's very important for the lawyer fighting this type of sex crime case to know what it is he or she is dealing with. And a lot of times, your battle isn't always with the facts, but your battle is with the state attorney's office trying to get them to maybe agree to negotiate this charge as something that does not require a sex offender registration. There have been plenty cases that I've been involved in, that were juvenile cases, where someone 14 years of age may have been accused of committing a sex act, and I have been able to get the prosecutor either to not to make a filing decision. That means is no charge at all. Or, sometimes agree to amend the charge to something, like I said, would not be necessarily a sex crime, but maybe addresses some elements the prosecutor was concerned about. And you have the juvenile getting whatever attention that he needs as far as counseling is concerned. And you also have a second chance. A second chance meaning this juvenile isn’t going to have the rest of his life marred by this conviction. The unique thing is, in the state of Florida, the age of the victim is really “the one that drives a bus”. So, if you have two consenting 15-year-olds, theoretically they have both committed a sexual crime if they both engage in either lewd or lascivious molestation or battery, or something of that nature. So, it's not necessarily the consent of a party. And because you really aren’t at liberty to consent at the age of 15 in the state of Florida. So, it’s the age that kind of “drives the bus” in all these crimes. My experience has been one that would, really, I think the most important thing to do is when you get a call from a family member who says, “Hey, I got a son or daughter is accused of this type a sex offense,” my experience has been that the best the do is, you know, depending on the facts, obviously, talk about getting the child an evaluation. You know? When you hire a lawyer, and a lawyer who knows what he or she’s doing, they’re going to have some experience knowing, you know, who's out there in the community who might be appropriate to handle certain types of cases like this as far as sexual evaluations. There are plenty of psychologists out there, and psychiatrists out there, who deal in sex-type crimes. And a lot of times, these evaluations can sometimes give a message to the prosecutor that this kid is just a kid, and this criminal act isn’t necessarily an indication of some deep-rooted sexual deviancy. But sometimes, it’s just, you know, a period that this kid is a little confused and doing some exploration. My experience has been that when prosecutors realize that it's more of a confused child, as opposed to somebody who's got a prolific problem, the prosecutor may be more willing to work with you as far as what the outcome of criminal case is. And it really is something that is so crucial, that when a lawyer’s handling a juvenile accused of a sex crime, that you hire somebody who knows what he's doing. Because every step along the way is going to have an impact on the rest of this child's life. B: And it’s important again, and we say this always, but early in the process, Because, like you said, it could affect them for the rest of their lives. M: Absolutely. There are cases that I've had, and not even that long ago, that you usually get a sign pretty quickly that there's a criminal case coming. When I say “you”, the family member. A lot of times the cases that that you get involved in are that there's some conversation between two juveniles, and maybe a parent of one of the juveniles gets wind of it, and they call the police. The police come out, and they start asking questions. It’s usually around that time that mom and dad of the juvenile accused                                                                                                                                                                                                                                                                                                                                                                                                                                                                                 realize that there’s something that’s happening. And at that moment, is probably when you want to get a lawyer involved. Having a child answer questions from law enforcement, while maybe seems in everybody’s mind is a good idea to be cooperative, sometimes can have a very negative impact on the future of that case and how it’s handled. So, my advice obviously is don't talk to the police until you talk to a lawyer. And that lawyer will be able to give you some advice as far as whether it's a good idea to cooperate, or not. In a lot of cases, if not most cases, it’s probably not a good idea to have a conversation with law enforcement. But if you get involved early, sometimes, you can address whatever issues might be out there. You can get this sexual evaluation that might be helpful for the prosecutor to make the appropriate assessment. And there have been plenty cases where the prosecution has decided not to file charges based upon those facts and circumstances. And that's huge, because if they don't file charges everything is over. There isn’t any criminal history. There isn’t any registration that this juvenile has to deal with. It’s a lot easier for me to have a conversation about a prosecutor maybe not filing charges, that it is for me to have a conversation after charges are filed and ask the prosecutor to change his or her mind. I mean, I can tell you it's, I know it’s impossible for me to get my wife to change her mind, let alone a prosecutor. B: Right. M: You always want start in the beginning before they make that decision. B: All right. If you’ve been charged with a sex crime, a juvenile sex crime, it is important to hire experienced juvenile sex crime lawyers in Tampa like about Bauer, Crider and Parry. And join us for our next edition of floridadefense.com podcast.

Floridadefense.com Podcast - #2FDP - Juvenile Theft   Brad Post, Host, Create the Movement Mike Kenny, Attorney, Bauer, Crider and Parry   Brad Post, Host, Create the Movement: Welcome to floridadefense.com podcast. We are speaking to Mike Kenny of Bauer, Crider and Parry. They’re criminal defense lawyers in the Greater Tampa area. And this is their second edition, and we’re talking about juvenile crimes. Now, we’re going be talking to Mike Kenny, Tampa juvenile theft defense attorney. Mike how are you? Mike Kenny, Attorney, Bauer, Crider and Parry: I'm very well. How are you? B: Good. Good. You gave us an overview in the previous podcast about juvenile crimes in general. Now we’re going to dig down a little bit more into the theft. M: Right. B: Do you see a lot of theft in juvenile crimes? M: Yeah. That's certainly a common accusation that you see in in juvenile court. There’re some unique things when it comes juvenile crimes that don't necessarily come into play in adult crimes. Obviously, the statutes are the same. You know? A theft is a theft. And it’s punished the same way, as far as it prescribed, the same way as it would be in juvenile court. The theft of a certain amount of money, $300 or more, is a grand theft; anything below that is a is a misdemeanor. So, that's kind of the basic stuff. But what normally is the issue in a theft, is things like prior history and restitution. A restitution is: if something is stolen, and it's not replaced or returned, there is an amount of money that often the offender would have to pay to make the victim whole again. Well, in juvenile court, that restitution amount can sometimes be placed against the family to pay back. And that's important because in some cases the amount is very expensive. In adult court, you’re on your own. You’re an adult. You’re a grown person. And it’s your responsibly to meet your requirements. But obviously, in juvenile court, a lot of times these kids don't have jobs, and the only way they meet the requirements is through the help and assistance of the family. So, sometimes the person who’s really on the hook, at least financially, in a lot of respects, could be mom and dad. So, it's important for mom and dad to kind of realize that when we’re talking about these types of crimes. And why it's so important to have somebody get involved early to kind of know what the issues are, and try to remedy whatever can be remedied through this process. So, everyone has a good idea and understanding what's going on, and how to best represent the families of the loved one - this child. So, the unique thing about juvenile court is there is no prison, and there is no jail. So, the punishments are going to be generally probation, or depending on how significant the crime is, maybe if it’s really significant, and there’s some significant prior history, the juvenile goes to some type of program. A program meaning, he actually leaves his home and gets shipped off somewhere to address the issue. In theft cases, you don't see that happen all the time, but you do see it happen occasionally. What I have seen happen, in my experience as a juvenile criminal defense lawyer, is a lot of times there's car thefts. You know? Kids who think that they’re going to take a car out for a ride, and a lot of times there’s accidents that happen, and the damage is significant. And that's what kind of has the overriding impact on juvenile cases - is the amount of money that has to be paid back to the victims. And that's been a very heavily litigated issue, a lot of times. Because not everyone always agrees on how much the item is worth, that has been either stolen or destroyed. So, I find in juvenile cases, not only are you arguing whether or not a crime has been committed, but you're also arguing what is the actual damage or the impact of that alleged crime if the juvenile’s convicted. In juvenile cases, as I was mentioning before, they’re not technically convicted of crimes. They’re adjudicated “delinquent” or not, and sometimes there's a withhold of an adjudication of delinquency, which means the same thing in adult court. It's not a conviction of a crime, but it is sometimes something that can have a serious impact on a juvenile. Any felony, there are certain ways that the public can see a juvenile who's got a felony charge. So, for instance, everyone has this this belief that if you’re a juvenile nobody knows about it. It’s not in the public record. And it goes away when they hit the age of 18. That is not the case in the state of Florida. Although, some misdemeanors, you're never probably going to be able to view it. The Clerk’s website does not post juvenile crimes, but on felony-type cases those arrests can be, it does not have the same protection. There are juveniles who are arrested for felony charges. And I've have seen cases where those juveniles arrested were literally posted in the jail, and when they post in the jail they’re obviously public record. Then you see them on those websites that post people's arrest pictures. So, it's the false belief that, “It doesn't matter if it’s a juvenile crime” is really misleading, and it's damaging. Because you want to handle things in a juvenile case just as well as if you would be doing an adult case. Quite frankly, I think a juvenile matter can sometimes be more important because this is before person even gets, you know, his foot out the door, as far as starting his life, his or her life. And you want to make sure that he or she has every option available to him. And if somebody does a background check and they find out that this juvenile may have had a felony conviction some time ago, you know, that’s going to be tough for him or her find a job. B: Now, in the first one you talked about a risk assessment that that the DJJ does. Part of that risk assessment in a theft case would be probably based on what was stolen. Correct? Whether it be a car, or you know, a six-pack of beer. M: Sure. The actual crime itself is looked at. And then the family environment is looked at. Maybe the educational level that the juvenile has, the intellectual ability that the juvenile has, all of that is looked at, and then viewed to see whether, or not, this person is likely to reoffend. Most the time, a person, whose first foray it is into the juvenile world, is probably not to be found to be a very high risk of reoffending. But there are certain things that can have an impact on whether or not that risk is considered high risk or not. And obviously the higher the risk assessment, the higher the level of supervision the Department of Juvenile Justice is going to request from the court, as far as the sentence is concerned. That's what it all really boils down to. What it boils down to, is when you represent a juvenile in a theft case, you want to have the Department of Juvenile Justice make the best recommendation possible for your client if you believe it’s a case you’re going have to resolve with a plea. And the reason why you want to do that is because you don't want someone to start off in the juvenile justice system with a very difficult sentence, that he or she may not be able to complete. So, you want to make sure that the Department of Juvenile Justice gets all the information they need to make a good assessment on your client. To realize that your client is a person that mom and dad say he is. And a lot of times that’s putting the best foot forward. That’s making sure mom and dad are advised of what the procedures are in a juvenile case. That they go to these meetings with the Department Juvenile Justice, and they show they’re willing participants in the program. And a lot of times when the DJJ sees that there’s a family that's motivated, involved to bring a child out of this area where he or she may have made a mistake, a lot of times the assessment is viewed to be lower than some high risk. You know? When you have certain individuals who maybe have no one there to help them through this program, you know, it's a much less optimistic outlook. B: All right. Anything else you want to cover on theft? M: No. I think that’ll cover it. B: All right. You’ve been speaking to Tampa juvenile theft defense attorneys at Bauer, Crider and Parry, and Mike Kenny. And join us for our next edition of floridadefense.com podcast

Floridadefense.com Podcast - #1FDP-Juvenile Crimes   Brad Post, Host, Create the Movement Mike Kenny, Attorney, Bauer, Crider and Parry   Brad Post, Host, Create the Movement: Welcome floridadefense.com podcast. We are speaking to Tampa juvenile defense lawyer Mike Kenny. Mike, how are you doing? Mike Kenny, Attorney, Bauer, Crider and Parry: I'm doing very well. How are you doing? B: Good. Good. We are just going to be talking about juvenile crimes during this series of podcasts. And the first one we’re going to do an overview of the different juvenile crimes that you guys work with. M: Yes. The juvenile area is kind of a unique area. The state of Florida prosecutes crimes. There’s a statute, every crime, every criminal act that is that is determined to be illegal, there's a specific statute for it. So, everything that is prosecuted in an adult court can get prosecuted in juvenile court, but there's a completely different way that it's handled. They’re called delinquency actions. And if a person is convicted of committing a crime while a juvenile they’re adjudicated delinquent. They're not really convicted of a crime, so to speak, at least technically speaking. So, there’s a whole different process involved. And it's really important if someone's involved in a juvenile matter that they seek advice and representation from a lawyer who's got some familiarity with that area. Because while a lawyer may know criminal law very well, juvenile court is a completely different arena. There’s certain practices, and obviously some policy, that a lawyer’s going need to know to most effectively represent his or her client. So, what happens is in a juvenile case a person is either arrested, or not. If they’re arrested they’re taken to the juvenile detention center. And there is an assessment. And an assessment is – a thing called Face Sheet is drawn up, and it basically scores the particular criminal act the juveniles is accused of, as well as any prior history. That Face Sheet is going to come up with a number. And that number will tell the court whether or not this juvenile is supposed to stay in secure detention for a specific period of time - the maximum being 21 days, essentially. Or, home detention, or maybe some other pretrial limit or pretrial requirement. So, secure detention means that the judge, if the judge looks this person's crime and determines that there is probable cause a crime has been committed, and determines that the person scores for secure detention, that person is going to stay in a juvenile detention center for 21 days. There is no bond. A person can't be bonded out. There is no amount of money that can be paid to secure person’s release until they come back to court. Now, what a person can do, and what I have done, is lawyers can file a motion with the court, and ask the court to consider releasing the person to home detention from the juvenile detention facility. And at that point in time there could be hearing where the judge is presented with facts that demonstrate that there is no risk of harm to the public if the juvenile is released. And that the juvenile will be assuredly coming back safely to court at his next hearing. And sometimes judges will agree to release, especially if there’s some issues with the factual scenario described. A lot of times things change once police are called, and some new facts come to light. And sometimes that can be helpful in presenting some scenarios to the judge where it might be more appropriate to have a juvenile at home in the care of his parents. And that's the first detention - secure detention. It’s the highest form detention. And the court will actually charge for any type of detention. He’ll charge the family an amount to keep that person in custody. It’s not huge amount, but the judge will make a determination if the family has an ability to pay, and then assess that person a cost-per-day for that type of detention. The next level of detention is home detention. And that's where the judge will order that the juvenile stay at home, and have certain conditions like maybe a curfew, follow certain rules at home, and follow certain rules at school. That also will have a certain cost assessed per day. Which is usually somewhere from 1 to 3 dollars a day. To where the court will determine that that person has to pay that amount in order to have that home detention supervised by the Department of Juvenile Justice. I mentioned the Department of Juvenile Justice. That's why when a person is involved in a juvenile matter, you’re going to want a lawyer that has some familiarity with the area. Because the Department of Juvenile Justice is a very major aspect of juvenile court. The Department of Juvenile Justice has a role to where they advise the court of what an appropriate sentence would be. When a juvenile is arrested for juvenile crime, or at least charged with a juvenile matter, the Department of Juvenile Justice does an investigation. They meet with the family. They look at the allegations of the crime, and the DJJ makes an assessment of whether, or not, this juvenile is at risk to reoffend. They have categories. They have high risk down to moderate risk, or low to moderate risk, and finally low risk. And the DJJ will make an assessment based upon the level of risk a juvenile has, and that assessment is pretty much what the judge’s limit is. Meaning, the DJJ may make an assessment for probation, a withhold of adjudication, and things like that. And when they make that assessment the judge is pretty much going to have to follow that assessment, unless he or she makes specific findings on the record why the judge would like to depart, or go above, that recommendation from the Department of Juvenile Justice. It’s been my experience, a lot of times, when a person gets charged with a juvenile matter, when I see what the recommendations is from DJJ, I kind of realize that that is kind of what the cap is going to be, so to speak. Things can get worse, of course, as time goes on, but you at least know in the very beginning that the DJJ’s making a certain recommendation. That’s what the judge is essentially going give. And that's when it becomes crucial for the attorney to know whether or not that's a that's a good way to resolve the case. Or, whether they need to come up some type of maybe plea negotiation with the prosecutor to sometimes avoid certain things that that might have a negative impact in the future on a juvenile’s life. B: What is that risk assessment based on? M: They talk about prior history, the home environment, whether not there’s a stable home environment, education - there's a whole bunch of things that go into it. B: Okay. M: A lawyer, who’s representing someone on a criminal matter, oftentimes knows before this assessment happens, that a juvenile’s been arrested. So, I get called all the time when a juvenile gets arrested. And one of the first things I’m going to tell the families is, “Listen, you’re going to get a call from the Department of Juvenile Justice. They’re going to want to have a meeting with you and the family.” That’s when you talk to the family, and say, “We want to put our best foot forward in the situation.” And you kind of explain the process to them. And a lot of times you can reach out to whoever's doing the assessment to kind of give them, you know, your family’s side. What may not necessarily be reflected in some paperwork. And that can sometimes have an impact on the assessment. I think the more information that someone from the Department of Juvenile Justice has, the better at making an appropriate recommendation, at least a recommendation that is more appropriate for what the needs of your client might be. B: So, the DJJ, they come back with the recommended sentence. And have you seen very many times where they go above and beyond? Or, it’s usually less? Or, it just kind of depends? M: Well, the DJJ makes a recommendation, and then what the sentences is going to be up to the judge. But case precedent is pretty significant. B: Okay. M: To suggest that judges really can't go beyond what's recommended, unless there are unique circumstances that the judge can demonstrate on the record why he or she might give someone a harsher penalty. For instance, you know, a person who first gets charged the juvenile crime, most of the time is going be either given something from a very minimum of judicial warning, to maybe some pure supervision probation to get certain requirements performed. It's very rare that they’re going to be sent away to a program. Almost never happens the first time. The judge can't just go from a recommendation of a judicial warning, to sending some juvenile away to a program. Unless, there's a really good record demonstrated why the judge is going to depart from the findings of the Department of Juvenile Justice. B: So, it's important for a parent, or even a juvenile, to hire a defense attorney like Bauer, Crider and Parry early in the process. Correct? M: It’s very important. Early in the process is, a lot of things that happen, and it’s kind of hard to go back and fix things. I’ll tell you one of the most important things when we’re talking about early in the process, in juvenile cases there's this rare benefit that juveniles occasionally have. And that's called the Juvenile Arbitration Program. And the Juvenile Arbitration Program, there are certain crimes that aren't significant, to the extent that they may not be felonies, or very serious felonies. They may be some misdemeanors of sorts. And an officer, who say investigates the juvenile, has the discretion to refer the case that he's investigated to the Department of juvenile Justice for the Juvenile Arbitration Program. In that circumstance, the officer does not submit a report or a complaint to the state attorney's office. The state attorney’s office never even sees it. It goes to the Juvenile Arbitration Program. And if the juvenile agrees to comply with the program, he’s given certain requirements to perform. And if he performs them appropriately the case is closed. Essentially it never gets filed, and there's really no criminal history at all, except for maybe some type of investigation. That is a wonderful benefit. Why it's important to get involved early, because, if the officer does not exercise his discretion to do that, and he submits it to the state attorney's office, once the prosecutor files charges, the Juvenile Arbitration Program is no longer available. So, timing is very important. I have in cases tried to intervene if I see that the prosecutor hasn’t made a filing decision yet, and if I can convey to the prosecutor that, “Hey this is more appropriately handled in the Juvenile Arbitration Program.” Sometimes, the prosecutor will send it back and recommend it going to the Juvenile Arbitration Program, and the case gets dismissed. And the reason why that's so important is because, even though these are juvenile cases, there’s still a history of some type. And you can end up having a case closed out without there being any history at all. The last thing any mom or dad wants is to have their 12, 13, 14-year-old child to start life off with a criminal history before he’s even gotten his foot in the door in the world - as far as finding a job and going to college. B: Good. We’re going to be breaking it down over the next few podcasts. We’re going to be going over theft, and sex crimes, and battery. So join us for our next edition of floridadefense.com podcast.

Tampa Stolen Car Defense Lawyer Michael D. Kenny, Attorney Brad Post: Welcome to floridadefense.com podcast. We are speaking to Tampa stolen car defense lawyer Mike Kenny. Mike how are you? Michael D. Kenny, Attorney: I’m doing well. How are you? B: Good. Mike is with the Bauer, Crider, and Parry, law firm out of the greater Tampa area. And we have been in this series talking about a robbery, burglary, and theft, property crimes and we’re going to wrap it up with stolen vehicle, stolen cars. M: So, in the state of Florida stolen cars is characterized as a grand theft of a motor vehicle. Any time a person takes a car, or endeavors to take a car, he commits a third-degree felony. B: Doesn't depend on the value of the car at all? M: No. You can steal a Hyundai, or you can steal a Cadillac, and it’s basically the same punishment. Now, it’s funny that you mentioned that. Because one of the issues that comes up on every criminal charge, a person gets convicted of a crime is ordered to pay any restitution as a result of that that criminal act. So, that maybe the restitution in the theft of Hyundai, and the damage to that vehicle might be not as significant as it is on a more expensive car. So, that something to think about. That might be the difference financially, but other than that, they’re punished the same. So it’s the grand theft of a motor vehicle. As I said before, it’s a third-degree felony which means it has a five-year cap, punishable by up to five years in prison. There is no minimum mandatory prison sentence for it. So, a person essentially can get probation, up to five years in prison. One unique thing with a car type theft, we were talking about various types of theft charges and robbery charges when you combine a robbery with a car theft you get what we commonly refer to as carjacking. In Florida statute 812.133 there is a carjacking statute. Carjacking is the taking of a motor vehicle, which may be the subject of theft, for instance from someone else, and that a person uses force, violence, or assault, or putting in fear. Almost a same exact reading that the robbery statute has. Most of the time when I’ve handled carjacking cases, both as a prosecutor and otherwise, I usually see some type of weapon is used. And that's significant because if a firearm or other deadly weapons is used, then a carjacking is a felony of the first-degree punishable by imprisonment not exceeding life, meaning punishable by life. So if a person uses a gun, or if the person uses a knife, or any other object to take a car from another individual, that person has just graduated into a punishable by life felony. A regular carjacking, if there's no weapon used, is still a first-degree felony punishable by up to 30 years in prison. So, carjacking becomes a very serious crime. When we start talking about the Florida criminal punishment code and what things are punishable by, you generally have three degrees of felonies. You have a first-degree, a second-degree, and a third-degree. First-degree is pretty serious. That means it’s the most serious degreed crime punishable by up to 30 years in prison. And carjacking, any type of carjacking is a first-degree felony. Then you can do something to go past that 30 year cap, and make it a life felony, and that's if you are using a firearm. So carjackings are punished very severely. I can remember when I was a prosecutor, years and years and years ago, like I said like robberies are crimes of desperation. Some elderly woman was getting her car in a grocery store to go shopping. Another person got inside the car and began to drive off, but the woman unfortunately wasn't able to get herself unhinged, either her purse, if I can remember correctly, somehow got hooked into the car and this person drove, and ended of dragging her behind the car for some period of time. And I can remember being a prosecutor, the first thing prosecutor says, “Wow! Carjacking.” That is serious, and a prosecutor is going to come at you pretty seriously. Then add to that any damage or harm by another person, and needless to say, this person can face a very significant term of years the Department of Corrections. It's one of those cases that, if you're involved in something like this, you’re going to want to make sure that you have somebody who knows what he's doing, who knows the differences between the degrees, and what the State has to prove to establish a carjacking, and how this can be resolved most favorably. B: Could you think of maybe one of the most interesting cases and that you've worked? M: The most interesting case that was probably theft related. I’ve had plenty of theft-related cases on the defense side, and quite frankly that’s a lot of what I do. Especially when you start to get into some of the white-collar thefts. But, those aren’t always exciting. For some reason as a prosecutor you get to see the most exciting stuff because you see everything. Now, that the difference between a defense lawyer and a prosecutor, is a prosecutor sees every case there is. A defense lawyer sees the cases that come to him. So, the prosecutor sometimes sees the worst of the worst. I can remember one case, I vividly remember, was basically a bank burglary. Where a person, in the middle of the night, went up to an ATM machine, and the thing about ATM machines is they all have video recording. This person out of his truck and begin to take a sledgehammer and smash the ATM machine and damaged it so much that he began to try to access the inside of the vault of the bank. And he crawled through, his body actually crawled through the ATM machine. And you have to think, when you cut this metal, and rip this metal apart, and he was there for like a half hour. What shocks me is that security did not arrive, you know, at that moment when he was there. But he rips through this metal, gets into the bank, and he’s actually made access inside of the bank. I remember one of the arguments that the defense lawyer was having was, “How can you prove he was inside the bank? Maybe he was inside the ATM machine.” And the unique thing is, this defendant cut himself inside by crawling through this machine, and his blood dripped onto the inside of the floor of the bank. And, of course that blood was tested for DNA, and that DNA matched this individual. But, what I think is the most unique thing about this case, that particular case, besides everything I’ve just said, was I'll never forget, we have these surveillance pictures from the ATM machine, and I printed up these pictures that I plan to use in the trial, and I remember the defense lawyer showing the client the pictures. And the defense lawyer comes back and says, “My client says that’s not him.” It’s one of these cases where the guy looks right at himself and says, “That’s not me.” Which is, I guess, a tactic that some people might want to use. Very interesting. B: All right. You have been listening to the floridadefense.com podcast. We've been in series on theft crimes. Today, we talked about Tampa stolen cars. And you’ve been speaking to Tampa stolen car defense lawyer Mike Kenny of the Bauer, Crider and Parry law firm. Join us for our next series of podcasts at floridadefense.com

Michael D. Kenny, Attorney   Brad Post: Welcome to the floridadefense.com podcast. We are speaking to Tampa property crime charges defense attorney Mike Kenny. Mike, how are you doing? Michael D. Kenny, Attorney: I'm doing pretty well. How are you? B: Good. We’re going to be basically talking about the overall theft today. We’ve been in a series over robbery and burglary. Mike is with the Bauer, Crider, and Parry law firm there in Tampa and the surrounding areas. Mike, let’s talk about property crimes today. M: Sure. What we've been talking about for a while, a lot of it centers around theft, the taking of an item. Florida has taken any kind of way you can steal something, whether it be embezzlement, whether it be theft by misrepresentation, and they pretty much put all under this one statute and it starts off at 812.014 in Florida statutes and that's called Theft. It's basically designed to say any time a person takes something knowingly, either permanently, or temporarily, commits a theft. The statute specifically says a person commits a theft if he or she knowingly obtains, or uses, or endeavors to obtain, or to use, the property of another, with the intent to either permanently, or temporarily deprive the other person the right to the property, or benefit from that property. So, that part “endeavors to obtain” that’s even an attempt. In Florida, there is no attempted theft. If you attempt to commit a theft you still fall under that theft statute, if they can prove that you endeavored to take something from someone either permanently or temporarily. That’s your basic theft definition. But, theft is, as you might know, it can vary depending upon the item that is taken. So, there is a large variety of ways a person be prosecuted for a theft. There's two main types of theft. You have your misdemeanor theft which is called petty theft in Florida. Then you have your felony theft which a grand theft in Florida. And that separating line is the minimum to go from a misdemeanor to a felony is $300 or more. So, if a person takes an item that is valued at $300 or more, that person has committed a grand theft which is a third degree felony punishable by up to five years in prison. B: $300? Wow, okay. M: That amount can change if the item is taken from a home. If the item is taken from home it is only $100 to be considered a grand theft. Now, there are two types of misdemeanors. There is a first degree misdemeanor punishable by up to a year in jail. And then there's a second degree misdemeanor punishable by a maximum of 60 days in jail, or six months of probation. And that is value specific. Basically anything under $100 would be a second degree misdemeanor. Or, if a person has a prior theft conviction, no matter what the value is, you would go from a second degree misdemeanor to a first degree misdemeanor. Then, of course, there's a crime called felony petty theft. That means you've been previously convicted of petty theft before, and as a result of that previous conviction you commit another crime of theft (convicted two or more times in the past), and no matter what the value of the item is, it could be a candy bar, if you’ve been convicted two times before, you get tried with potentially a grand theft charge, called felony petty theft. Again, a third degree felony punishable by up to five years in prison. Obviously, you were talking $300, but there's cases that I’ve handled that we’re talking upwards of hundreds of thousands of dollars. When the amount begins to go up, the degree or level of felony begins to go up. So, the third degree felonies involve when I talked about $300 or more, there’s certain levels. Levels matter in Florida because levels kind of tell you what points your crime gets assigned. And that's probably a little too much detail to get into today, but generally speaking, third degree felony at least, is from $300 or more, up to $10,000 or more, but less than $20,000. That's the whole scheme of third degree thefts, and there is a whole bunch of levels in there that assign more points. Obviously, a $10,000 or more is going to get a higher amount of points assigned to it. And then you go up from there. A $100,000, or more, is where you get to the first degree grand thefts. Those are crimes punishable by up to 30 years in prison. And they carry significant levels assigned to him depending upon the amount. That almost gives you a minimum on the criminal punishing scoresheet where the judge has no discretion if you get convicted of it. So, those are your basic schemes of theft. Thefts are very value intense. It matters what the amount was, and obviously your history. If you have been convicted of a theft in the past, no matter what the value is, that crime can be enhanced. One of the unique things I don't think a lot of people know about thefts, is that a conviction of a theft, no matter what the value is, can cause a person to lose his driver's license. That’s obviously a concern. Especially for people who have been convicted on one or more occasions, but the statute specifically says that the judge may revoke a person's driver's license. Statute 812.0155 says that the court may order the suspension of a driver’s license of each person adjudicated guilty of any misdemeanor violation of 812.014 (which is a theft) or 812.015, regardless of the value of the property stolen. The court shall order the suspension a driver’s license of each person adjudicated guilty of any misdemeanor violation who has previously been convicted of such an offense. So, those are two different statements. The first one says the court may. Meaning the court might say: an appropriate penalty here is a driver's license suspension for a first-time offense. But, the next sentence says the court shall order the suspension. That means the court has no discretion. I can tell you that I’ve handled cases where the court may not have done that, but a lot of times that’s a result of a negotiated disposition perhaps where things occur, or whether the court maybe just simply overlooked it. But this statute says the court does not have the discretion, the court shall order the suspension of a driver’s license suspension for each person adjudicated guilty if they’ve got a previous adjudication. So, know that these can become, snowball-type offenses. A simple act of stealing something that’s very insignificant. Maybe doing it a couple times. And then you get a driver’s license suspension, and then you find yourself with no way to get around. I have found that people suspended driver's licenses tend to drive anyway. Because they have to. And then you begin just piling up the misdemeanor offenses until things become much more significant. It’s unfortunate. B: All right. Anything else? M: We were talking about the levels of theft. There is one avenue of theft that is pretty significant. There is a crime called dealing in stolen property in the state of Florida. Dealing in stolen property, it’s under statute 812.019. It says any person who traffics in, or endeavors to traffic in property, that he or she knows, or should know, was stolen, shall be guilty of a felony of the second degree. What that essentially means is, you know how people buy items occasionally, and they know the deal is just simply too good to be true? Like a television that fell off a truck? That is a potentially dealing stolen property charge. The way I typically see it both as a prosecutor, and as a defense lawyer, a person would take an item that he or she knows to be stolen and pawn it at a pawnshop, and get money for it. That's usually how these dealings in stolen property charges come up. And what the State would have to prove is that that individual knew that this item was in fact stolen. Well, how does the State usually prove that? Well, because usually they know, or they are able to prove that the person who stole the item is the person who’s pawning the item. So, obviously if you stole it, you certainly know that it's a stolen item when you take it to pawn. I've seen a lot of cases where a person gets arrested for a theft of an item, and then pawning that same item in a pawnshop. The difference is, a dealing on stolen property is a second degree felony punishable by up to 15 years in prison. In the state of Florida, even if you never had a felony conviction before, you don't have any criminal history at all, a second degree felony means the court has to adjudicate a person guilty. Meaning you’re a convicted felon if you're convicted of this particular charge. A grand theft, for instance, or a misdemeanor theft, say you steal a candy bar from a store, that you've never been in trouble before in the state of Florida, you get the benefit of what is called, on most cases, a withhold of adjudication. That means this court has not given a formal finding of guilt. And you can say you have not been convicted of a crime. Dealing in stolen property, if you’re a convicted felon, your life substantially changes - very difficult to get a job, you can't vote, can't possess a firearm. And life gets a lot harder, if it wasn't hard before. It is a lot harder and to be a convicted felon. So, what you see a lot is people steal items, and they pawn them, and there's a lot of discussion about maybe allowing a person to plead to an amended charge, or doing something to where they're not a convicted felon, if they’ve really got no prior criminal history. The state of Florida also offers pretrial intervention which is if the prosecutor handling the case determines that you qualify for a diversion-type program, where you're not in the court system, and the charges later get dismissed. That's a wonderful benefit for folks who never been convicted of crimes before. The problem is that if you get a dealing in stolen property charge, it’s a second degree felony, and that's not eligible for PTI-type charge. Of course, a lawyer can try to work to get that changed for you, but dealing in stolen property changes a lot when we’re talking about a theft charge. The Florida statute stated that a person cannot be convicted of both a dealing in stolen property and a theft of the same item. So, if a person gets arrested for stealing a necklace, and then pawning it at a pawnshop. And he gets arrested. And he goes to trial on it. A verdict cannot be returned as guilty as the theft and to the dealing in stolen property. You can only be convicted of one. Usually what happens is the prosecutor picks which one to charge the person with. And in most cases they pick the highest charge - the dealing in stolen property. At least that’s been my experience as a prosecutor. So, it's almost like playing chess sometimes. You figure out all these little moves that can happen, that can have an impact on the on the ultimate outcome which is which is a person's life. B: And that's why you need an experienced Florida defense criminal attorney like you guys. Right? M: There's no doubt about it. What you don't want when you're when you're talking about your life, when you talk about your future, what you don't want is someone to do some on-the-job training with you. You want somebody who you are confident knows what he or she is doing. There is only really a couple ways to get there, right? Any lawyer can tell you he's great. I can tell you I’m great trial lawyer. I can tell you that, but how do you know I’m telling you the truth? One of the ways you know that the lawyer knows what he is talking about, is whether or not he is a board-certified criminal trial lawyer. That's the highest recognition of a lawyer’s skill, competence, and ethics in a particular field. It shows that a lawyer has been in the business, and trying criminal cases for a period of time. He’s had a minimum amount of criminal trials tried to verdict, minimum amount of jury trials, had a minimum amount of felony trials, pass a specific rigorous examination designed to show that person can represent himself as an expert in that particular field. So, a lot of people can say something, but very few people, very few lawyers in the state of Florida, quite frankly, have that on have that distinction of being a board-certified criminal trial. My firm is lucky to have me, and another lawyer at my firm, have that designation. B: Great. Anything else in property crimes? M: No, sir. B: All right. We’ve been speaking to Tampa property crime charges defense attorney Mike Kenny of the Bauer, Crider, and Parry law firm. Check them out at floridadefense.com

Brad Post Michael D. Kenny, Attorney Brad Post: All right. Welcome to floridadefense.com podcast. We are speaking to Tampa burglary charges defense lawyer Mike Kenny, at the Bauer, Crider, and Parry, law firm in Tampa, Florida. Michael D. Kenny, Attorney: Morning. B: Mike, we’ve been speaking on theft crimes. Last edition we talked about robbery charges. Today, we’re going to be talking about burglary, which are two different areas. Correct? M: That’s right. It’s kind of funny, people use those terms, you hear people discuss them. I think lay folks might use the term robbery when they say, “My house was robbed.” But there’s specific terms, these are like “terms of art”, in the legal world. A burglary specifically means a theft from a particular location. And there's certain elements that have to be established in order for something to qualify as a burglary. Whereas robbery is like what we talked about before. Robbery means that the way the item was taken. Whether the person used some kind of force to take it, some threat of force, or that the victim at some point became aware during the course of the taking that an item is being stolen from them. They're all theft related, but a burglary specifically means the entering, or remaining, in a dwelling (which is basically a home), structure (which is something that is not a home, but like a business), or conveyance (which is an automobile or anything that basically transports folks) with the intent to commit an offense therein. Then there is an exception: unless the premises that are at the time open to the public, or the defendant is licensed, or invited to enter. So, that’s your basic burglary: a person enters a home, with the intent to commit a crime inside, and that essentially is a burglary. And it doesn't have to be that they have to steal something. In the vast majority of burglary crimes, that's what happens - a person breaks into a home and steal some items (a television, property, medicine) any one of those items. And depending upon what type of place of that they enter determines the severity of the crime. Generally speaking, a burglary of a conveyance, like a car, is a third degree burglary. A person walking down the street, they’re an opportunist, and they check the door handles to find out what cars will open in the middle of the night. And they find one that opens. Once they reach inside and take whatever items they can get, that’s a burglary of the third degree. That’s a burglary of a conveyance. A person goes to a home, enters the home, and walks out with a television set. That’s a burglary of the second degree. Punishable by up to 15 years in prison. A person who gets convicted for the first-time burglary, even if they have no prior criminal history, scores on the score sheets that we use in Florida, a minimum of 21 months in the Department of Corrections. So, almost 2 years, even with no prior criminal history, and that doesn't change unless there's some type of reduction to the charge, or some negotiation in a plea disposition. The judge really doesn't have any discretion. And then there's the third degree burglary that comes up businesses. A person breaks into a store that may be closed at night, and walks out with something. So, that's the basic definition of a burglary: that you enter with the intent to commit an offense therein. So why that matter, the intent to commit an offense therein? That’s pretty important because that's what separates a felony in a lot of cases from a misdemeanor. So say a person, which I’ve seen as a prosecutor, a lot of times you might have some homes that were abandoned for a while, and maybe there's some homeless individuals who ended up spending the night in the home. And after spending the night in the home, maybe they damaged some of the property. Well, in that case, probably most the time the person when they entered the home didn't have an intent to commit an offense therein. Just walking into a home and taking a nap, or going to sleep, is not really anything other than a trespass. Which is a misdemeanor. It doesn't carry any kind of prison sentence whatsoever. If the person enters the home, and end up stealing something, or enters the home and end up causing some type of criminal mischief or damage, courts have decided that you can use that the act that is committed to prove that that was the initial intent upon entering. There's another way to prove intent, and they say that you don’t have to prove intent to commit offense therein if the person is entering the home surreptitiously (meaning entering the home under cover of darkness, maybe disguised the middle of the night, sneaking in). If that's able to be established you don't have to prove what the person’s intent was. But in all burglary cases, a basic element the prosecutor has to prove to the jury, is that the time of the entry this person intended to commit a crime. I've have seen plenty cases, both as a prosecutor, as a defense lawyer, where you have individuals who are friends, or associates, or acquaintances who know each other. A person is invited into the home. At some point there's an argument, and maybe a battery happens, somebody hits somebody inside the home, or somebody breaks some items and maybe even walks out with something. None of those instances are burglaries, unless certain elements are established, because the person was invited into the home. So, you don't have the unlawful entry into the home. You have maybe a crime that happened inside, which would be no different really than if it happened outside. A battery, a theft, a criminal mischief. So, what a person can however, a homeowner can remove that person's invitation to enter. That has to be announced, “Hey, you’re no longer welcome here. You need to leave.” Then if a crime is committed, then potentially the state can establish a burglary charge. But burglaries can be pretty serious because they carry pretty stiff sentences. Like the robbery charges they elevate depending upon how the crime is committed, and whether or not a weapon is used. If, during the course of committing a burglary, a person is armed, well then you end up getting yourself in a situation where you have a life felony. And that is obviously the ultimate sentence you can get, aside from capital punishment of death cases, life imprisonment. So, if a person enters a home with a firearm, or with a deadly weapon like a knife, or a billy club, that is punishable by life. The other thing that makes it punishable by life is if someone breaks into a home, and at some point during that entry to the home there’s someone inside the house, and that person gets hit, or there's a threat to hurt that person that is punished much more severely. And that's punishable by life felony. So, once there's a person inside the home things kind of elevate a little bit especially if there's some threat to be made. Now, the unique that I have seen, as both a prosecutor and as a defense lawyer, what happens a lot, and what makes what seem like very insignificant crimes in the grand scheme of things very serious are these road rage type cases. These are the cases where somebody determines that somebody's driving wasn't courteous, or wasn't proper. At some point some guy gets out of his car, and walks over to the other person, and maybe punches him while he’s seated inside of his car. Well, that could be two things. That could be a battery – hitting somebody. That could be a trespass and a battery. Meaning once the hand crosses the threshold of the window the car. Or, that could be a punishable by life first degree burglary. Because it's a burglary of a conveyance, it’s the unauthorized entry into the car, and there's an intent to commit a crime inside. And that intent to commit a crime happens to be during the course of committing that, is an assault or battery. There have been a lot of cases with some famous folks who have been involved in situations like that. And it's one of those things that happens to a lot of people. It’s that one moment in life that somebody maybe loses composure. They end up doing what in all cases would be something punishable by probation. They end up committing a crime that's has a very severe punishment - a minimum amount of time in Department of Corrections- up to a maximum of life. B: You mentioned that there is a difference between home and also property or business. M: Correct. B: I was teenager once. I didn't do it, but a lot of people will go into the store, grab a case of beer, and run out. But you said that they had to prove that they had intent to do that I guess beforehand. M: There's more than that. Because one of the essential parts to prove a burglary is that the person entered unlawfully. So, when you enter a business, obviously everyone is invited to enter a business. So,   that's why when a person walks into a business during regular hours and steals a case of beer – that’s a theft. That’s not a burglary. B: Okay. That would be under the robbery sudden snatching? M: It wouldn’t even be under that. It’s a theft because unless the attendant is the person you're stealing from, or the person behind the counter. When you walk in you steal a beer from the cooler and you’re walking out, that person may see it and realize it but you're not taking it from that person. B: Okay. M: If you walked in and you took something that was on the attendant, like you picked his pocket, and he turned around and saw you, that might change things. So, the way you transition that, what we're just talking about, from a theft to a burglary, you have to break into the store in the middle of the night when the store’s closed, and not open it to the public. There is another scenario, where if you're in a place that’s open to the public, but you cross the threshold and go into an area that's closed off. For instance, where you see a door that says “Employees Only”, if you open that door, and the section of the store, the State might be able to establish the elements needed to prove that you entered somewhere unlawfully that you had no invitation to enter. And you took something from there, and that would be a burglary. B: This isn’t necessarily under burglary, but you know, how you see the people that walk in and they act like they have a gun in their pocket. M: That’s a robbery. B: Okay, and they don't necessarily have a gun, but that's with force or threat. Correct? M: Correct. That would be a second-degree robbery, unless they can prove, here's a unique thing about that, in the end that's going to be a jury question. I can tell you that if a guy walks in, and he has his hand in his pocket of his sweatshirt or something like that, and makes it look as if it's a firearm. If that person gets arrested later, let’s say a day later, the testimony is going to be, the attendant is going to say, “I thought I saw a gun.” And that's going to be the evidence. So, obviously a good defense lawyer is going to hone in on “Can they prove that this person was armed?” Because you've just taken a second degree felony and made it a punishable by life felony. But, the jury’s the one that’s going to decide whether the person was armed or not. Just because they don't find a weapon, doesn't mean a prosecutor might not try to convict that person of an armed robbery. B: Anything else on burglary charges Mike? M: That pretty much covers the general course of burglaries. There is this element of a burglary that involves, kind of a robbery. And that’s a home invasion robbery. That's when a person breaks into the house and ends up robbing someone using force or threat of force to take something from that person. That is kind of its own unique crime, and that kind of has the same levels if a person uses a firearm or other deadly weapon he can he commits a felony of the first degree punishable by life. If he commits a home invasion robbery, and carries a weapon, he commits a first-degree felony which is not punishable by life, but punishable by 30 years. With no weapon it’s simply a felony of the first degree, again punishable by 30 years in prison. B: We've got to two more podcasts that we’re going to be recording here, and that will be over property crimes and stolen cars. This is the Tampa burglary charges defense lawyer Mike Kenny at Bauer, Crider, and Parry. Join us for our next edition of floridadefense.com podcast.

Brad Post Michael D. Kenny, Attorney Brad Post: Welcome to the floridadefense.com podcast. We are speaking to Tampa robbery charges defense lawyer Mike Kenny. And Mike we’re going to be going over, in the next series, just going over theft crimes. Correct? Michael D. Kenny, Attorney: That's right. B: You want to give us an overview of the theft crimes, and then we’ll dive into robbery. M Sure. So there is, like you're mentioning it, you call them theft crimes, and these crimes we’re going to talk about all have to do with a taking of something from somebody else. Whether it's a permanent taking, or a temporary taking of some item. And depending on how the taking occurs, or where the taking comes from, kind of changes the severity of the crime and the name the crime. A robbery, which is what we’re going to talk about today, is essentially taking something from another person, but there's an added set of elements, of using force to take that item, or the threat of force. The robbery statute in the state of Florida's is under statute section 812.13, and defines robbery. It says it means the taking of money or other property, which may be the subject of larceny, which basically means theft, from the person or custody of another, with the intent to either permanently or temporarily deprive the person, or the owner, of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear. That’s the actual definition of robbery. Robbery has different levels. The most basic type of robbery is a third-degree robbery, and that’s called a robbery by sudden snatching. And the name kind of implies that something is taken quickly from another individual. And the way that a person gets charged with a robbery by sudden snatching, the thing that I always kind of think about is a pickpocket. Pickpockets are kind of notorious. The people who are pickpockets are notorious for being a pretty good about sneaking up beside somebody and taking something. There is no threat of violence. There is no force used. There really is no action on the part of the person, other than taking the item from the person. But a robbery from sudden snatching comes up when in the course of that either by snatching a purse from somebody, or taking a wallet from somebody, the “victim” becomes aware some point during the taking that something's being taken from them. So, let’s say a guy's a purse snatcher. Say he goes in and grabs the purse off of someone, and begins to walk away. If he doesn't use any force to remove that purse, but maybe unclips the purse, somehow takes it from a person. And that person, at some moment, becomes aware that “Oh, my gosh! Someone’s taken my purse!” At that moment, that transitions from theft to a robbery by sudden snatching. Because there's no violence used. There's no force used. The only thing that happens is the person who’s being victimized here realizes that he or she is the victim of a theft. And the legislature has decided that we’re going to punish those crimes a little more seriously. Because, obviously, once a victim realizes he's being robbed from, everything can potentially escalate to another level. So, that’s a robbery by sudden snatching. It is a third-degree felony. And it’s punishable by a maximum of five years in the Florida Department of Corrections. It doesn't score any type of mandatory prison sentencing, but you can get anywhere from probation to five years. Now, the next level is the type of robbery that we hear about most often, is what's called a strong-arm robbery. That’s a second-degree felony. And, a strong-arm robbery is your basic definition of a robbery, as how most people commonly understand it. That is, the taking of an item from some person, by using force, or threat of force. This can come up, and the most common situation a person is what we use the term ‘mugged’. A person is confronted by another individual, and that individual demands money. He can either use force, and get into fight, and attack somebody and take that. And that’s a robbery by sudden snatching. Or, he can use a threat of force. Say, “I'm going to harm you if you don't give me this money!” That’s a second-degree felony. And that’s punishable by up to 15 years in prison. You can get anything from probation to 15 years in prison for that. Then there is a next level from that, which things begin to change dramatically as far as the sentence. And that’s if the person is armed. If, in the course of committing the robbery, the offender carries a firearm, or other deadly weapon, then the robbery is a felony of the first degree, and is punishable by a term of imprisonment not exceeding life. So, that’s a punishable by life crime. So, if you take that same situation you look at the three different robberies we talked about: a guy runs up and snatches a purse off somebody, and that person doesn't become aware of until he’s running away. That could potentially be a robbery by sudden snatching. Then you graduate another level where a guy walks up to someone, and says, “Hey, listen! Give me your purse, or I’m going to hit you!” And the person gives the purse. That’s a second degree robbery. That’s known as a strong-arm robbery. Then, you get to this next level. A person points a firearm at someone and says, “Give me your purse!” That crime is now punishable by life in prison. The first one punishable by five years. The second one punishable by 15. And, obviously the third one punishable by life in prison. That doesn’t have to be a firearm. It could even be a knife. It could be a weapon of some sort. The firearm is still punishable by life, but it changes because there’s a 10/20/life statute in Florida. Anytime firearm is used in the commission of a felony there is a 10 year minimum mandatory prison sentence. B: Mike, one thing that I like about talking to you, and we’ve talked about this in the previous podcast, is that you’ve worked on both sides of the courtroom. M That’s right. B: The plaintiff side, and also the defense side. Do you see very many of these being repeat offenders, very often? And, is there an additional charge, or imprisonment, on repeat offenders? M: As a prosecutor, obviously I’ve seen pretty much every type of crime you can imagine. Everything from misdemeanor to a capital murder. But, as far as robberies are concerned, those are usually, in my experience as the prosecutor and as a defense lawyer, those are usually crimes of desperation. And, so you don't typically find that people do them regularly. Unless, we’re talking about a serial bank robber which we may have run into those a couple times. Usually, you don't find the same person having a history of committing robberies. What I can tell you is that there are specific penalties, and Florida's pretty tough for people who get convicted of serious crimes, and then when they come out they’re back in the system again. There's one specific, very simple enhancement called the prison releasee re-offender. And, a person who’s a prison releasee re-offender is anybody who gets sentenced to the Department of Corrections for anything. Say you go to prison for any type of charge whatsoever, but within three years of your release, you are convicted of committing a violent felony, basically a forcible felony, and that’s anything like a robbery, a burglary, an arson, any kind of specific crimes known as forcible felonies. But, these are specifically designated by statute. But, if you commit these violent felonies, or forcible felonies, you get the maximum sentence day for day, and the judge has no discretion. As long as the state has served notice that you qualify for prison releasee reoffender, you get the maximum sentence day for day. So a person who may have got a prison for something in the past, and ends up committing armed robbery, even if the judge wanted to, if you get convicted of an armed robbery, the judge has no discretion, but to give you life. B: All right. We've got a few other topics that we’re going to discuss. So, join us on our next edition of floridadefense.com podcast. We’ve been speaking to Tampa robbery charges defense attorney Mike Kenny.

  Brad Post: All right. Welcome to the floridadefense.com podcast. We are speaking to Bauer, Crider, and Parry, Mike Kenny. He’s a Tampa murder defense attorney, same with all the attorneys there at Bauer, Crider, and Parry. Mike, how are you doing today? Michael D. Kenny, Attorney: I'm doing well. How are you doing? B: Good. Good. Well, we’re in the series. Basically we talked about violent crimes. We’ve talked about assault and battery. You mentioned a little bit on homicide in the last one, and we’re going to be talking more about homicide and murder in this one. Correct? M: That's right. B: All right. So I’ll turn it over to you. M: Sure. So, in the state of Florida murder has a couple of different categories. There’s the murder that probably a lot of us are kind of accustomed to. We’ve heard about premeditated murder. That’s first-degree murder. So, in the state of Florida when a human being is killed from a premeditated design to affect the death of that person. What that simply means is the thought and the intent, to bring about somebody else’s death, and the forethought, the thinking about it ahead of time. That’s a first-degree murder. The reason why that's so significant is because the penalties that that charge is punishable by. In the state of Florida, only first-degree murders are punishable by death, by capital punishment. There’s a certain process that has to be gone through in order to in order to get that penalty, because of some cases that have come out in the past several years the juries have to make certain findings. And the juries actually have to make certain recommendations that the courts are, although the final decision makers, and what the penalty is. The jury has to make certain findings on whether certain actions would warrant the death penalty. The next category is a second-degree murder. And a second-degree murder is what is commonly called the depraved heart murder or depraved mind murder. And that's something that comes up when a person ends up bringing about the death of another person, but they don't have a premeditated design to do that. It’s simply one of those acts where the person hates the other person so much, or wants to harm the other person so much that they don't think about it. There isn’t some preplanning. And usually when you see that come up, it’s usually what comes up when two people meet each other and in a heated moment, get into a fight, and the other person ends up committing some significant injury or harm to the person, and ends up the killing the person. So, it's significantly different, it’s still punishable by life in prison, but a second-degree murder is not punishable by death. And the second-degree murder basically talks about a person who ends up doing an act that’s imminently dangerous to another person, which shows that he got depraved mind, and he’s regardless of human life, without any premeditated design to effect that death of any particular person. So, the idea is that it just shows that this person hates this other individual so much, that he doesn't really care, he just commits this act that brings about somebody’s death. After that, you get into a category that is known as manslaughter. The manslaughter category is kind of anything else that a person is killed where you didn't plan to kill that person. That's really the layman’s explanation of it. B: Kind of like a car wreck, or something like? M: Correct. You can get in a car accident. Obviously, you have to show that there was some culpability, some criminal culpability involved there but a lot of times it’s somebody being careless with a firearm. But the manslaughter definition is defined as the killing of a human being, by the act, procurement or culpable negligence of another, without lawful justification, and in cases in which such killings shall not be excusable homicide, or murder, according to the provisions of this chapter. Manslaughter is a second-degree felony punishable by a maximum of 15 years in jail. Now, manslaughter changes if a death happens, that’s considered a manslaughter, but a firearm is used. That takes it out of the second-degree felony range, and it’s punishable by up to 30 years in prison. So, it changes things a little bit. So, that’s the basic categories of homicide. And, all these other little categories that kind of change depending upon other aspects, but those of the basic categories. Then, as far as first-degree murder, there's a lot of ways you can get first-degree murder without the prosecutor having to show that you had a premeditated design to bring somebody’s death. And that's obviously sometimes difficult. Human beings, it's really had a hard to know it's going on inside somebody's mind. And especially because most people don't talk about what their thinking when their doing it. So, it’s one of those things that you have to look at the actions. But, in the state of Florida there is a thing called the felony-murder rule. And felony murder is a rule that says if you commit one of these listed felonies, and they’re basically forcible felonies. If you commit one of these listed felonies, and a person dies in the commission of this forcible felony, you are guilty of first-degree murder. And that's punishable by just the way a premeditated murder is, it’s punishable by the death penalty. So, that comes up in the specific scenarios where a person commits a trafficking offense, for instance, trafficking in controlled substance, arson, sexual battery, robbery, burglary, kidnapping, escape, aggravated child abuse, aggravated abuse of an elderly person or disabled adult, aircraft piracy, unlawful throwing, placing or discharging of a destructive device or bomb, carjacking, home-invasion robbery, aggravated stalking, murder of another human being, resisting an officer with violence, aggravated fleeing or eluding with serious bodily injury or death, a felony that is an act of terrorism, or in furtherance of an act of terrorism, or which resulted in the unlawful distribution of a controlled substance (e.g. cocaine, opium) that ended up bringing about the death of the other individual. So, all those specific charges I just listed, if a death happens, and the person involved in it is committing one of those acts, and ends up causing the death of another injured individual, that could be charged as a first-degree premeditated murder punishable by the death penalty. There is another category called second-degree felony murder. Second-degree felony murder is very unique. That comes up when a felony is being committed, just like the list of felonies that we were talking about, and a person dies, but the person who does the killing is not one of the people involved in the commission of the felony murder. So, the best example to come up with is three guys go into to rob a bank, and they go into to rob a bank, and during the commission of the bank robbery the bank guard pulls out a firearm ends up shooting one of the codefendants of the bank robbery. In that instance, the two living codefendants are guilty, if they go to trial, guilty of second-degree felony murder. They didn’t do the shooting, they didn't bring about the death of anybody, but the idea behind it is that they engaged in a clearly imminently dangerous act to the life and liberty of other individuals, and they’re going to be held responsible for the death of anyone involved. B: Would another example be, Mike that if somebody say hires a hitman, or pays somebody to… M: No, that’s a little different because if that person hires a hitman, and a hitman does the killing, that means that the people engaged in the common plan brought about the death. So, that will be a first-degree. That would basically be principle first-degree murder. But, the reason why second-degree murder comes up in these situations is because nobody involved did the actual killing. It came from an outside party. A party not involved in the commission of a felony. I think the reason why that came up is because this is a crime punishable by death, and perhaps the legislatures thought that the death penalty is maybe not necessarily appropriate for when somebody else commits an act that ends up causing the death of one of these people involved. Especially, when somebody has no role in bringing about the death, other than committing the felony. B: You mentioned that the last podcast about the under-21 rule. M: Yes. B: That's kind of the same in this as well? M: You don't get the benefit for capital felonies. You don't get the benefit of a youthful offender designation. So, anybody who commits a first-degree murder does not get that gift. A youthful offender designation is you have to be sentenced as a youthful offender before your 21st birthday. And it caps whatever your sentence is at six years. And can that can be six years of anything. Six years of probation. Six years prison. A combination of probation and prison. But no, it's not that, it's not that easy to avoid the maximum penalties involved in cases like this. B: All right. Anything else Mike? M: So, we just talked a little bit about the about the categories of murder. There’s a third degree of murder. And, a third-degree murder only comes up when a death is brought about in the commission of a non-listed felony. That means, I went through a list. Any felony that isn’t on that list does not qualify you for a first-degree murder. But, if you committed some other felony, let’s say grand theft, for instance, which isn’t on that list, and somebody dies in the commission of the grand theft that is a third-degree felony murder. And, that’s considered a felony in the second-degree punishable by a maximum of 15 years in prison. Now, we talk a little about the penalties are. It's probably good to know a little bit about some defenses available in murder-type cases. Obviously, in murder, one of the things that you have to prove is that somebody’s been killed. But I think what’s important for a defense attorney to know and be able to show is maybe the “why” and “how”. How these things happen. Because sometimes the “why” makes a big difference. In the state of Florida, there is a unique statute called excusable homicide. Excusable homicide has three categories. It says that a homicide is excusable when committed by accident and misfortune, in doing any lawful act, by lawful means with usual ordinary caution. So, that could be anything. If you're just doing what you're supposed be doing, driving your car, and someone ends up getting killed, but you’re following the law and doing what you’re supposed to do, than that would be excusable. There is another section that says or by accident and misfortune, in the heat of passion upon any sudden and sufficient provocation. So, that’s a unique scenario. Some categories that might qualify is people getting into fight. People getting into a fight, and one person just ends up maybe getting the better of the other person who attacked him, who came after him. A lot of times when somebody gets killed a law-enforcement office does an investigation to determine whether or not that death could have been prevented. And maybe they make a determination that this person ended up killing the other individual illegally. There is a specific statute that says if this act was done in the heat of passion upon a sufficient provocation, then that could be considered (a jury has to find that) excusable homicide. For instance, or upon sudden combat, without any dangerous weapon being used, and not done in a cruel and unusual manner. So, those are those are three different ways that you can be found to have committed a murder, actually killed a person, but that act is found to be excusable homicide. Then there’s the justifiable use of deadly force, which we see coming up in a lot of cases ever since Florida had the “Stand Your Ground” amendment to the statutes. The justifiable use of deadly force statute specifically says a person cannot be charged with a homicide, if they were found to have been defending themselves. And, that falls under the justifiable use of deadly force section. Justifiable use of deadly force says that you're allowed to defend yourself. You're allowed to use deadly force if you feel it is necessary to prevent imminent death to yourself, or serious bodily harm to yourself, or another. And then the “Stand Your Ground” is not all of the justifiable use of deadly force statute. But the stand your ground statute specifically stands for the idea that before you use deadly force you don't have to turn and run. It used to be, a long time ago, that you did. So, in situations where people are killed either through gunshot, or some weapon, and a person claims that he felt he had to do it because he thought he was going to be attacked by the other individual, you find a lot of times the justifiable use of deadly force, and the “Stand Your Ground” defenses raised. And that pretty much covers the substance of the homicide statutes. B: You’ve been listening to the floridadefense.com podcast we been speaking to Bauer, Crider, and Parry, Tampa murder defense attorneys. We’ve been speaking with Mike Kenny. And join us on our next podcast.

  Brad Post: Welcome to the floridadefense.com podcast. We are speaking to St. Petersburg drive-by shootings attorneys Bauer, Crider, and Parry. It's also Pinellas County correct? St. Petersburg, Mike? Michael D. Kenny, Attorney: That's right. B: We’re speaking to attorney Mike Kenny, and Mike let’s talk a little bit about that drive-by shootings today. M: Sure. Drive-by shootings is the way most people understand, it's a crime where a person fires a gun while they’re in a vehicle, and potentially driving by a location. So, Florida has designed a couple of statutes that specifically try to address that scenario. There isn’t a drive-by shooting crime per se. Shooting at somebody is a crime. Killing somebody is a crime. Those kind of take care of themselves. But they do have some shootings, some crimes that involve shooting from a car, or into a car. So, one of that one of the crimes that Florida has is discharging, or shooting from a vehicle, discharging a firearm from a vehicle. So, if you’re inside a car and you shoot, you shoot from a car, there is a specific statute that addresses that. And, that’s a felony. That's actually because there's a discharge of a firearm. Carries with it a pretty significant minimum mandatory prison sentence. And then there's shooting into an occupied vehicle which can happen whether you're standing on the street and a car drives by and you shoot into it, or you're in a car and you shoot into another car you can imagine that scenario. So, that's designed to address people who are being victimized while they’re inside of a car. And there’s a scenario where you can be in one car, and shoot into another car, and you get charged with two counts - shooting from and shooting into. A lot of times you see people, I've had cases where a person is charged with discharging a firearm while shooting from a vehicle and into a house. Because shooting into an occupied dwelling is another category of crime. So, the way the legislature has done it, they’ve kind of gotten specific scenarios all seem to address that issue that apparently was a concern about people basically exploiting opportunities to shoot people by surprise without them without being aware. So, the penalties are significant, like I said, because they involve Florida's 10/20 life statute. And the 10/20 life statute is specifically going to give you a 20 year minimum mandatory prison sentence if it’s been found that you have discharged a firearm. Mere possession of the firearm is a 10 year minimum mandatory sentence. And, obviously if somebody gets hit, and seriously injured or killed, a person can get 25 years to life, and often times it's, it's a life for these types of cases. And the unique thing about Florida is that they kind of have catchall crimes to begin with. Any one of the things that we just described could easily fit the category of an aggravated assault with a firearm, or an aggravated battery with a firearm. But a discharging from an occupied vehicle is just more, has a little bit more to it, a little bit more teeth to the charge, versus an aggravated assault with a firearm without discharging it. While it’s significant, it is a three year minimum mandatory prison sentence where you get 20 years on one of these shooting from an occupied dwelling type cases. Like I said, I've been involved in plenty of these cases, and they obviously come up in situations where a lot of times there is witness issues, and not everybody knows even who it was or where it was. So, a lot times piecing these things together by the by the physical evidence and the forensic evidence. What I have found to be an issue a lot of times is these crimes often come in when they’re involving occupied vehicles by more than one person. And, the idea of getting law enforcement to be able to say who the exact shooter was is isn’t always that easy. They try to do an investigation and piece it together, and some things that they use, gunpowder residue test. Obviously witness statements and witness testimony. But these things happen so fast sometimes that it's not always that easy to have reliable witness information. I’ve been involved in plenty of these types of cases, both as a prosecutor and a defense lawyer. And it's very important, probably from the law enforcement perspective, to kind of figure out who is involved very early on, and try to have contact because as time goes on things get much harder for them to piece together a case. Especially if the evidence isn’t always going to be there anymore as far as the firearm, or the gunpowder residue, and gunshot residue tests that they perform in people's hands to show whether not they’ve discharged a firearm. But, that's as far as drive-by shootings in particular, those categories are really the categories of crimes that the specific types of crimes that kind of encompass that drive-by shooting scenario. That that pretty much wraps it up. B: All right. You’ve been listening to the floridadefense.com podcast. You can check them out online: Bauer, Crider, and Parry. We been speaking to Mike Kenny.

  Brad Post: Alright. Welcome to the Florida Defense podcast, floridadefense.com podcast. We are speaking to Clearwater assault and battery defense lawyer with Bauer, Crider and Parry, Mike Kenny. And Mike we talked a little bit about assault and battery in the podcast before this one, but we’re also going to be talking a little bit more about violent crimes in this one. Correct? Michael D. Kenny, Attorney: Sure, yes. B: So, I’m just going to turn it over to you. M: All right, so we talked before the previous podcast about assault and battery charges, and how these things get enhanced. You know, violent crimes in general, the way they get treated Florida – they’re very specific, every type of action probably has a specific criminal act outline. For instance, people have mentioned the term “drive-by shooting”, and there is actually a specific charge called shooting from an occupied vehicle. And there is actually another charge shooting into an occupied vehicle. And those could be two separate counts. So, you can imagine a situation we have a person driving his car, shooting out of his car, into another car. While that’s one act, they could be two separate charges there. There is obviously also shooting into house. There’s shooting into an occupied dwelling. And, those are pretty serious charges. Any kind of shooting charge carries with it a very significant penalty. Because in the state of Florida there has been a very strong act to swiftly and significantly punish firearms-type charges. In Florida we have a 10/20/life statute. And kind of what the 10/20/life statue stands for - there are these three aspects: 10 years is supposed to be if you possess a gun during the commission of a felony you get 10 year minimum mandatory prison sentence, 20 years is the part where that 10 years goes up to 20 if you discharge a firearm, and then life, life means if you kill a person or cause serious bodily injury in the state of Florida (if you use a firearm to do that) you get 25 years to life. So, any time there is a discharge of a firearm case, there is a 20, potential 20 year minimum mandatory sentence you’re looking at. Now, obviously depending upon if anyone was hit, and will it gets a lot more significant than that. Firearms charges cover the whole gamut. You have firearms charges included in battery cases, in assault cases. The unique thing is when a person commits an aggravated assault with a firearm. Instead of getting that ten year minimum mandatory prison sentence, it’s only three years. That’s just specifically because of the way the statue was written saying aggravated assault with a firearm that’s what makes it the charge a felony in and of itself, so we’re not going to say you carried a firearm during the commission of this felony. But everything else, a burglary, a person commits an armed burglary, for instance, that’s something actually punishable by life. But, if a person commits certain charges with a firearm, you significantly impact the minimum amount of time that these people are facing. And, in the state of Florida, it's been, according to the statistics that the numbers of been very on helpful in combating things like recidivism. I think some of the problem of having these minimum mandatory sentences as you take away a little bit of discretion, or a lot of discretion from the judge. A lot of times you have some folks who maybe find themselves for the first time involved in a bad situation, and unfortunately there is a firearm involved, and they automatically graduate “big boy school” and they're looking at spending decades in prison for one event in their life that probably they if they could do everything to take it back they would. And there are probably some cases where you know where discretion would help. And I think sometimes that that the judges should be given that ability to look at who the individual is, and see where they’re going, and see if there’s any help in reform. The unique thing we have is the youthful offender statute when it comes to these violent crime type cases. In any case, even though there is a minimum mandatory prison sentences, a person who is under the age of 21 – that’s the one situation where the judge is allowed to depart from what the mandatory minimum sentences might be. And give these folks almost like a second shot. So violent crimes covers a whole host of things obviously including homicide. There are certain changes to the homicide statute that impact who the victim might be. There are certain enhancements depending on who the victim might be in a homicide. And there’s a whole lot different ways that homicides get punished in the state of Florida. And, that’s something we’re going to talk about during our next podcast. B: All right. Anything else and Mike? M: No sir. B: All right. You’ve been listening to the Florida Defense podcast. We’ve been speaking to Clearwater assault and battery defense lawyer Mike Kenny and at the Bauer, Crider and Parry, law firm. And check us out on the next podcast.

Brad Post: Alright. Welcome to the floridadefense.com podcast. We are speaking to Pasco County (Florida) violent crimes lawyer Mike Kenny. Mike, how are you doing today? Michael D. Kenny, Attorney: I’m doing well. How are you doing? B: Doing well. Doing well. Well, we’re going to be talking basically about violent crimes today. And, so, I’m going to turn it over to you. M: Okay. Alright. Well violent crimes is kind of a big category. It covers a lot of things. We could start talking a little bit about assault charges and battery charges. In the state of Florida, they are separate charges actually. Assault is one act, and battery is another act. In Florida, an assault is essentially a threat. It’s a threat where a person makes a threat to make contact or do some type of physical harm to another individual, and has the apparent ability to carry out that threat. Usually that comes up where a person maybe raises a fist in an argument with somebody else, and looks like he’s about to take a swing or punch somebody. That’s your classic assault. In the state of Florida, a misdemeanor assault like this is a second-degree misdemeanor. That means it is punishable by a maximum of 60 days in jail, or six months of probation. Now, what bumps that assault up is depending upon who the person that’s threatened is. So, if you do that same act, and you raise your fist like you’re about the strike somebody, but the other person happens to be a law enforcement officer, that’s assault on law-enforcement officer. So it takes it from a second-degree misdemeanor to a first-degree misdemeanor. Still a misdemeanor - punishable by up to a year in jail as opposed to 60 days initially for your probation. Battery is a first-degree misdemeanor. And battery is what most people may understand what that is already. That’s just the physical touching or the contact another person that’s unwarranted, done without that person’s consent. So it’s either offensive touching, or causing an injury to another person. And those are first-degree misdemeanor punishable up to a year in jail. That’s your basic section of misdemeanor crimes, violent crimes of assault and battery. Then there’s all these little changes that can happen that can significantly enhance the crimes for misdemeanors to felonies. So, for instance, I talked about law-enforcement officer, and an assault on a law-enforcement officer being a first-degree misdemeanor. If a person commits an aggravated assault on law-enforcement officer, and that’s a situation where a person uses a weapon to threaten a law-enforcement officer, and a weapon could be anything that is capable of inflicting death or serious bodily harm. So, that could be a firearm. That could be a knife. That could be a baseball bat. Shoot that could be a car. Any one of those things. Then you’re talking about a felony with a three-year minimum mandatory prison sentence. So, there’s taking the fist and raising up like your going to strike the officer, and then threatening to do some harm is punished significantly more, and there’s actually a minimum amount of time a person will have to be in prison. It’s a third-degree felony punishable up to five years maximum. And finally, an aggravated battery on law-enforcement officer, that’s something that gives you a five-year minimum mandatory prison sentence. That’s a second degree felony. That’s where there is an actual battery, like we talked about before, but this time there’s a deadly weapon used, or weapon that can cause death or serious bodily harm. A regular battery of a law-enforcement officer is still felony, it’s a third-degree felony punishable by up to five years in jail. B: You mentioned that they don’t even have to this actually strike them it’s more for M: Not for the assault. Not for the assault. Any time you hear term battery in the state of Florida that means contact has been made. B: Okay. M: When you hear the term assault that means it was either an attempted battery, or it was simply a threat. Assault means no physical contact has been made. B: Does that include verbal threat? M: Generally not. B: Okay. M: Generally, saying, “I’m going to kick your butt,” to somebody else in a conversation does not rise to the level of a crime. B: Okay. M: Thankfully. We’ve all been to football games, and baseball games, and any other event B: Right. M: Some people have not had the full judgement that they should normally have. B: Right. M: And, we don’t want to be arresting people for just running their mouth. B: Yes. M: But, there are some threats that you can make, that there are specific crimes for. Like threats online. Making threating phone calls. The words, in and of themselves, aren’t crimes, but it depends on how they are used. And there are certain categories, and boxes that you check off, that maybe it rises to the level of a different crime. B: Okay. M: Once you start talking about felony assaults, and felony batteries, the general area that were talking about is whether or not there was a weapon used. Or, whether or not, there was a serious bodily injury. So, an aggravated assault on a person is the same thing as a misdemeanor assault, a threat to carry out some type of harm to the other person with the apparent ability to do so. But it’s done while the person, making the threat, has a weapon. This comes up a lot with a firearm. In the state of Florida, pointing a firearm, at another individual, clearly would qualify as an aggravated assault. And, because it’s a firearm charge it has a specific minimum mandatory prison sentence which is three years in the Department of Corrections. Otherwise, if it’s not a firearm, if it’s a knife, a bat, some large object capable of causing harm, then there is no minimum mandatory prison sentence. But, it is punishable by up to five years in prison. The unique scenario is when we start talking about felony batteries and aggravated batteries. So, those are when you actually make contact and hurt the person. And there’s two ways to have an aggravated battery. You can have an aggravated battery by taking a weapon, and hitting somebody with it. Or, you can have an aggravated battery by hitting somebody and intentionally causing serious bodily harm. For instance, a punch to somebody’s face can break an orbital bone in the face, maybe knock out a tooth. Those might qualify as aggravated batteries. Even if no weapon was used. Even if somebody just used their fists. But to be convicted of an aggravated battery which, at a minimum, is 21 months in prison on Florida scoresheet. The way to get aggravated, without a deadly weapon, you have to prove that the person had the intent to cause that serious bodily harm. As a defense attorney I’d say a lot of the cases we get people arrested for aggravated battery when the have those lucky punch cases. Where there’s one punch, the guy ends up knocking a guy out and he falls to the ground and maybe fractures something. A lot of time they get arrested for an aggravated battery, but it’s very difficult I think for the state to prove what was the intent of the person striking the other individual. It’s hard to say that you hit somebody one time, and you intended to cause bone breakage. It’s one of those situations where a lot of times it’s a fluke. It happens. Maybe it’s just the right hit at the right moment and other things happen. So, what typically happens in those situations the more appropriate charge is if you hit somebody, and you don’t plan to cause serious bodily injury, but serious bodily injury does occur like you break an orbital bone, break a nose, knock out a tooth, that is what would be better classified as a felony battery. So, felony battery involves a serious bodily injury just like an aggravated battery, but the intent is different. That the person doing the hitting did not necessarily intend to cause that serious bodily injury, but he still responsible. And, it’s not a significant of a crime. There isn’t a minimum mandatory prison sentence typically associated with the felony battery charge. The other aspect of aggravated battery comes up where you can cause no harm to the other person all. Just the fact that you use a deadly weapon, and you hit that person with it. Maybe you hit the person with it and doesn’t cause any harm. That’s still aggravated battery punished the same way as if you caused serious bodily injury, and a person with no prior criminal history can get 21 months in Department of Corrections on Florida’s sentencing guidelines scoresheet. So, it’s a pretty significant type of charge to get involved with. It’s a second-degree felony punishable by up to 15 years in prison. That’s why a lot of work in the beginning is to determine whether, was there a weapon used, and if there wasn’t a weapon used, maybe this is something that we can show the prosecutor, show the court that the intent wasn’t there. Then, obviously you move out of those areas, and there’s differences of who the victim is. For instance, you have an aggravated battery on a law-enforcement officer, is the same thing as an aggravated battery only the fact he’s a law-enforcement officer, carries with it a five year minimum mandatory prison sentence. So, it starts to get very serious when specific classes of persons are affected. There’s charges that specifically protect children from these types of crimes. There are charges that specifically protect elder individuals, that is that people over the age of 65. For instance, battery on an elderly individual is a felony. It’s a third-degree felony, but certainly can carry with it a significant prison sentence up to five years. And then there’s battery on a pregnant female. That’s where an individual is pregnant, and any kind of touching that would qualify as a battery, even misdemeanor, a push, would be a felony in that instance, and it’s a second-degree felony (Level 7) punishable by up to 21 months. I’m sorry, a minimum of 21 months in prison. B: Mike, you mind if I ask a question real quick? M: Yeah, sure. B: We’re talking specifically on this, just Pascoe County violent crimes. But, I know you guys cover the greater Tampa area. And you might not have these numbers, but do you get, you know a lot of these cases, violent crimes cases, from Pascoe County or Pinellas County or do you notice a different area? And I’m not trying to say what part of Tampa’s bad. M: I can tell you we get calls from all over the Tampa Bay area. I can’t say necessarily there’s one, you know, violent type of crime that I get from one area more than another. B: Okay. M: I think it’s pretty evenly divided. A lot of times is, the ideas is, there is sometimes a very aggressive push on enforcement to charge with the highest crime possible. B: Okay. M: It’s kind of the way that their trained. And, it’s the way their taught. You look for the highest crime you can arrest a person for. So, I think you kind of see that happen in a lot of areas. There are people who get arrested for a second-degree felony, are facing prison for getting an argument with maybe their wife who happened that just find out she’s pregnant, and there’s a push. And don’t get me wrong, it’s completely inappropriate, unwarranted, but to go to prison for a push is something that might shock the conscience of a lot of folks out there. B: Okay. M: So, that pretty much wraps up the battery and the assault charges. Obviously, there’s a lot of ways you can find a specific category. But, that’s the general understanding for what Florida punishes for violent crimes like assault and battery. B: And that’s what we’re going to be talking about on the next podcast – assault and battery. We’ll go a little bit more in depth on that. You’ve been listing to the floridadefense.com podcast, and we been speaking to Pascoe County violent crimes lawyer Mike Kenny. And, join us on our next podcast.  

Brad Post: Welcome to the FloridaDefense.com Podcast. We are speaking to Tampa Firearms Defense Lawyer Mike Kenny. Mike, how are you today?   Mike Kenny: I’m doing great. How are you?   BP: Doing well. Let’s kind of get into—A concealed firearm: that’s kind of a big thing going on.   MK: Sure. You know, the firearms law in the state of Florida is—I don’t want to say simple—but there aren’t a lot of restrictions on ownership of a firearm. There’s nothing really illegal about owning a firearm. You don’t need a special permit to own one. You don’t need a special permit to keep one in your house. Obviously you have to keep one safely in your home, especially if there are children in your home, but there’s nothing to where there’s a registry of people in Florida or you have to apply to have permission like you might in some other states. The unique thing about firearms is it comes up in two different areas where it becomes a crime. If it’s used in a criminal manner (if you’re shooting at somebody or committing a robbery), that brings you into a whole different scenario into Florida’s 10-20-Life law where possession of a firearm gives you a minimum mandatory of at least 10 years in prison if you’re using it to commit an enumerated felony. But what you normally see in firearms cases is just the possession of it in and of itself. A person who possesses a firearm, if they have it concealed on their person or so near their person that it’s considered on their person, that’s carrying it concealed. That’s illegal in the state of Florida unless you have a special permit that allows you to carry a concealed firearm. The alternative to that is, you also can’t just go walking around with a gun in your hand in the state of Florida. For instance, you can’t walk into a store and have a gun sitting on your hip in an open holster. That’s open carry, and that’s illegal. Walking around with a firearm in your hand is called an improper exhibition of a firearm potentially, depending on how it’s being held or displayed. So you can’t really have it open and you can’t have it concealed unless you have a license. Some people find themselves getting into trouble. The best way to go is—for anybody who is going to own a firearm, it makes a lot of sense to get a concealed weapons permit, and they require you to take certain firearms safety courses and go through specific background checks. (You obviously can’t be a convicted felon.) And that would allow you to carry a firearm in places you’re allowed to carry it. There are certain places you may not be allowed like an airport or bar, obvious places of nuisance. The unique thing about the carry and conceal firearm statute is there’s been a lot of cases addressing the two things the state needs to prove to convict someone of carrying a concealed firearm. For instance, I had a trial just last week where a person was charged with carrying a concealed firearm, and that case was unique. In that case, my client was pulled over, subject to a complaint about firearms being used in a potential crime. Officers came out, and officers, when they do a stop in a situation where they believe a person in the vehicle might be armed, they do what’s called a felony traffic stop. A felony traffic stop is when the officers come out with their guns already drawn, and it’s not like they turn their lights on and walk up to your window nicely and say, “Hey, I want to talk to you.” They’re concerned and want to make sure they get home to their families. So they come out with their guns drawn, and they have all of their lights on. They have special take down lights. They have special spotlights. They want to see every aspect of the car. And at the trial, the testimony was the officer saw my client, who was seated in the back of the vehicle, holding a firearm essentially over his shoulder, and kind of turned a little bit and throw his firearm over his shoulder into the back compartment of the car. And it went basically from the passenger component of the car into the trunk. They said they ordered my client out of the car, they secured him, they spoke with him, and my client maybe made some incriminating statements, according to the officers. And then the officers searched the trunk and found a gun sitting right there in the open compartment. Seeing this, the officers charged my client with carrying a concealed firearm. So instantly, when I was hired for that case, a couple of questions went through my mind. Question one was, I’m not really sure how concealed that is. Question two was, if it is concealed, is that firearm considered carried? Is that on the person or so near to the person that it’s readily accessible and considered on the person? Those are the two things the prosecutor has to establish. During the testimony at the trial, surprisingly, no one knew how the firearm got from the passenger part of the vehicle into the trunk. And we all probably can surmise how it happened—these backseats have these fold-back seats, and you can reach right into the trunk if you wanted to. For whatever reason, and it kind of surprised me in the middle of the trial, but there were really no photographs of what these seats looked like, just testimony of my client dropping something over his shoulder. There were no measurements performed when the firearm was seized. No pictures taken. So all you have was the officer’s word saying the guy dropped something over his shoulder, and then I found, when I cross-examined them, the officers could not clearly tell us where it was found in the trunk. So I told the judge, “That raises some issues.” The issue that it raises is, if they were going to consider that a concealed firearm, how could they show that my client could easily reach that? I don’t even know how it got back there. I don’t know if it was a big hole, a little hole. I don’t know if he could fit his body in there. In the end, the court agreed—although I think the court reluctantly agreed. I think the court was concerned about the facts in that case. The court had to abide by the law, and with the law as it is, the state wasn’t able to prove that my client could have accessed that firearm because there was no testimony that showed that. So the bottom line is, I think my client especially walked into that case thinking things weren’t going to be particularly great for him. Don’t ever do your own lawyering. Don’t ever do your own thinking. I mean, you can have some common sense and kind of see a picture on the wall and realize, “This isn’t very good.” But don’t ever wave the white flag before you hire a lawyer. Hire a lawyer. Have somebody do the work for you. Have somebody do the research because amazing things can happen when somebody sits down and dedicates themselves to defending you. In that set of circumstances, things worked out really well.   BP: All right. Anything else on firearms?   MK: No. BP: All right. You’ve been listening to the FloridaDefense.com Podcast with the Bauer, Crider, and Parry Law Firm, and we’ve been speaking to Tampa Firearms Defense Attorney Mike Kenny. 

Brad Post: Welcome to the FloridaDefense.com Podcast. We are speaking to Tampa Drug Crimes Attorney Mike Kenny. Mike, how are you doing today?   Mike Kenny: I’m doing well. How are you doing?   BP: Good. Well, we’ve been in this series on drug crimes. We’ve talked about cocaine. We’ve talked about marijuana. We’ve talked about the overview. Today we’re going to be talking about prescription pills, and just kind of the other drugs.   MK: Right, and this is probably the category that has, in the past five years, risen steadily. I think it’s because of the ease of access—anybody could open up their bathroom cabinet or their aunt’s bathroom cabinet, and they’re probably going to find these controlled substances. As a result, the ease of access has made it a bigger problem for law enforcement and definitely a bigger problem for young adults. These controlled substances are pills that you might get a prescription for from your doctor such as oxycodone, hydrocodone—even morphine, which is a lot higher-powered of a substance—those items are punishable if you do not have a prescription. It’s really called “possession of a controlled substance without a prescription”. And those crimes are punished the same way as possession of cocaine, for instance. They’re third-degree felonies, and they’re punishable by up to five years in prison. And weight is significant here, because if a person has a significant weight of that controlled substance, simple possession can bring you into a trafficking amount. I mentioned in a podcast some time ago about a person who might be an addict—an addict who has maybe taken a jar of pills of oxycodone when they were visiting a friend’s house or a relative’s house—and they have this legally obtained jar of pills that is no longer in the house where it should be. They can be charged—even though they’re addicted and plan on using it themselves—with a trafficking amount of possession and sent to prison for a minimum of three years. The trafficking statute, the way it’s laid out, addresses all of these types of controlled substances. It’s any person who possesses a minimum of four grams of more of any morphine, opium, oxycodone, hydrocodone, hydromorphone, or any salt, derivative, isomer, or salt of an isomer thereof, including heroine, is guilty of trafficking. Four grams or more or any mixture containing any such substance but less than 30 grams commits a felony of the first degree, punishable by three years with the Department of Corrections and a $50,000 fine. The next level up from that, 14 grams or more but less than 28 grams, is a 15-year mandatory prison sentence and a $100,000 fine. I will tell you, it’s not impossible to get 14 grams in one or two pill bottles. For 28 grams or more but less than 30 kilograms is a 25-year minimum mandatory prison sentence and a $500,000 fine.   BP: And those are all listed at the 893.135 trafficking statute?   MK: Right. And that last level is 30 kilograms or more, and that’s the same thing as cocaine—it’s a life felony.   BP: Wow. And what are some of the other drugs that you see?   MK: Some other things that come up, which I’ve found to be very common, are Xanax—the brand name for alprazolam, which is the generic term for it—that’s a third-degree felony to possess. That’s not punished as a trafficking amount. It doesn’t matter the weight in that scenario; you can’t have a trafficking amount of Xanax. But it’s something that, the more it is (the more you have), the prosecutor might be thinking you’re not using it for private consumption and might want to consider a sentence that might be appropriate based on the weight. So I don’t want to say the weight is completely irrelevant, but it doesn’t bring you into a trafficking amount. What else you see now is—and we’ve all probably heard about it; you’ve seen it on TV shows—is meth. Crystal meth is something that is very cheap to acquire, cheap to produce, and you find it in a lot of communities where these people are making these items. It’s a very dangerous drug. You see the effect that it’s having on these individuals, and it’s punished very severely. Just the chemicals—just having a combination of chemicals, maybe like Sudafed and a couple of different items together—can get you a charge of a felony, which is called “possession of listed chemicals” because there’s been an all-out desire to eradicate that drug and make it very difficult to create. That’s why, when anyone goes into the store and buys these Sudafeds and stuff like that, they basically have to sign their name on a list, and that list is actually put into a database where, if law enforcement was to view later who made certain purchases at certain times, they can do that because it’s a problem they’re trying to get their head around.   BP: Anything else, Mike, on these other types of drugs?   MK: No.   BP: All right. You’ve been listening to the FloridaDefense.com Podcast, and this is Mike Kenny, Tampa Drug Crimes Attorney with the Bauer, Crider, and Parry Law Firm.  You can find out more on their website atFloridaDefense.com.

Brad Post: Welcome to the FloridaDefense.com Podcast. We are speaking to Tampa Cocaine Defense Lawyer Mike Kenny with the Bauer, Crider, and Parry Law Firm. How are you doing, Mike?   Mike Kenny: I’m doing well. How are you?   BP: Well let’s kind of talk about today. We’ve talked about an overview of the three different categories of drug crimes. We’ve talked about marijuana. Now let’s talk about cocaine. Crack cocaine. Is it kind of the same? Different categories?   MK: Yes, we do have different categories. The first thing we should point out is that cocaine or crack, as a lot of people might refer to it—that hard, rock-like substance that has a cocaine mixture in there—both are treated exactly the same. There isn’t a harsher punishment for one versus the other.   BP: Whether it’s a powder or a rock, I guess?   MK: Exactly. Whether it’s in powder or rock form, what’s punished in the state of Florida is the ingredient that makes it illegal, and it doesn’t matter because with the way the statute is written, it’s “any mixture thereof.” So it can be a mixture of anything, and if it has cocaine in it, then you have yourself in a situation where you’ve got a possession of a controlled substance. It kind of reminds me—talking about that “any mixture thereof”—when I was a prosecutor several years ago, I had a very unique trial where an individual literally had a bag of baby powder. It was 99.9% baby powder, and for whatever reason—and you kind of figure out why these folks do what they do—but for whatever reason, there was just a pinch of cocaine added to that powder. And I don’t know if the pinch was added so it would look like it for testing, but it was going to be sold to basically trick someone who was buying it. But whatever the reason, there was just this very small amount, and I remember when we sent that item away for testing, they said they had to take several testings that came out powder, powder, powder, powder, and there was just one small—I mean not even maybe one-tenth of a gram that they were able to find—and it tested positive for cocaine. Now, I can tell you that, if you wanted to be an absolute literalist to the statute, because there was one-tenth of a gram of cocaine in there “and any mixture thereof”, and then you weigh the entire amount—and the entire amount could be 30 grams or 40 grams—that person was facing a trafficking charge of cocaine for having one-tenth of a gram, a very decimally small amount of cocaine mixed in this bag. I will say the prosecutor has discretion, and in that particular set of circumstances, we decided not to prosecute that person with a trafficking charge. But it’s a dangerous scenario when people start thinking all they have to be concerned about is the amount of the drug. But it’s not the amount of the drug, it’s whatever it’s mixed with to make it the product that is that’s penalized, and that’s what’s weighed—the total product.   BP: So is there the misdemeanor, the felony, the trafficking with cocaine?   MK: Well, with cocaine, there is no misdemeanor possession charge. Now, there is the paraphernalia used to hold the cocaine, to store the cocaine, and to maybe ingest the cocaine—like a pipe that might be used to smoke the cocaine or a crack rock—that would be a misdemeanor. But the actual substance itself is always punished as a third-degree felony, punishable by up to five years in the Department of Corrections. And then, there’s the other level, which is the trafficking level. Like I mentioned in a podcast or two ago, trafficking can be accomplished in a couple of different ways. It can be accomplished by transporting drugs into the state. It can be constituted by selling, so if you sell a certain amount and it’s over a certain weight. Or it can be just simple possession, and when I say simple possession, I mean just being in possession of an item that weighs a certain amount is enough to basically get yourself situated with a trafficking charge. So the minimum amount you have to have to qualify for a trafficking charge is 28 grams. With 28 grams or more, but less than 200 grams—with that comes a three-year minimum mandatory prison sentence if convicted and a $50,000 fine. The next level up from that is 200 grams, so if a person has 200 grams or more but less than 400 grams, that carries with it a seven-year minimum mandatory prison sentence and a $100,000 fine. The next category up from that is 400 grams or more but less than 150 kilograms, and that carries with it a minimum mandatory sentence of 15 years in prison and a $250,000 fine. And the last one is 150 kilograms or more commits a first-degree felony of trafficking cocaine, and you get life imprisonment. There is nothing less that you can get. I mean, less than 150 kilograms is a significant amount, but it’s also life imprisonment just for possessing that amount.   BP: Okay. Anything else on cocaine?   MK: Just the fact that cocaine is a different drug than marijuana. The one unique thing about it is—the state of Florida, in several cases, has determined that with certain drugs, you can prove they are the drugs that they are just by observation, just by looking at it, maybe by the odor that it has. And marijuana is a drug that qualifies for that. An officer can go into court and basically say, “Based on my training and experience, I can tell you that this green, leafy substance with this distinct green odor is marijuana.” An officer can do that—they don’t have to send it away for testing. In a possession of cocaine case, although officers do have significant training and experience, cases still suggest that a person needs to actually test it (and that means chemically test it). What you have happen a lot in the field is a person gets stopped by law enforcement for whatever reason, the officer encounters the individual, and through the investigation, the officer determines that the person is in possession of cocaine. What the officer will do before he actually arrests the person is he will test it. And he will test it with what’s called a field presumptive kit. A field presumptive kit isn’t really something that would be admissible in court necessarily, because the officer is given this little vial, he throws some of the substance in the vial, shakes it, and it turns a certain color. The officer probably couldn’t even tell you how it works, or how it’s performed, or how reliable it is. So that is the presumptive kit—that’s enough for them to arrest you. That’s enough for them to write an affidavit of probable cause for a judge to review and determine that you should be held in custody or at least get a bond. But what has to happen in a trial, if you’re going to be convicted, is they have to send that off to some agency for testing—they need an actual chemist—and the reason why that’s significant is, what happens over time in a lot of circumstances is that certain things, like crack cocaine, for instance—because it’s a water-based mixture, a lot of times that will dry up. And I can tell you again when I was a prosecutor many years ago, I had a trafficking trial with an individual, and in the case, the person disappeared at one period of time, and he was arrested a long time later, so when he finally went to trial, it was a long time after these drugs were sitting in the evidence locker. And over that period of time, when we had it weighed, the drugs ended up weighing about 27 point something grams, and the number I needed was 28 grams. So it just goes to show that, if it sits in a locker and the water evaporates and then you just have the powder left over, then it ends up weighing less. In that particular case, we had evidence that it was weighed at the sheriff’s office prior to being sent off for testing, so we still were able to meet our requirements. But it’s unique that these things have to be tested—they have to be sent off for weighing and testing, and it’s different than marijuana. A lot of times I don’t make the decision when I’m representing a client until I see those results from law enforcement because there have been cases when people will have what they believe is cocaine and it turns out to be something else, or some other controlled substance. Or it turns out the weight isn’t exactly what people think it is.   BP: All right. Anything else, Mike?   MK: That’s it.   BP: All right. You’ve been listening to the FloridaDefense.com Podcast. We’ve been speaking to Attorney Mike Kenny of the Bauer, Crider, and Parry Law Firm. 

Brad Post: Welcome to the FloridaDefense.com Podcast. We are speaking to Tampa Marijuana Defense Lawyer from Bauer, Crider, and Parry, Mike Kenny. Mike, how are you doing today?   Mike Kenny: I’m doing well. How are you?   BP: Good. Well in the last podcast, we kind of just had a quick one, a drug crimes overview. You talked about the three different categories of crimes, misdemeanor, felony, and trafficking. Today we’re going to be talking about a pretty interesting subject. Marijuana. Cannabis. Pot. Weed. Let’s start there.   MK: All right. Yeah, I think marijuana is an interesting subject. Probably when I was going to law school, I never would have envisioned such a movement that I have seen where different states have actually been successful in having recreational pot use or marijuana use. It’s interesting to me. In this state, there have been attempts to do that, but still, it’s illegal to possess marijuana. It’s illegal to possess marijuana for any use—whether it be medical use or for private use. The possession of marijuana comes in three groupings. The first grouping is simple possession of marijuana, where you’re in possession of marijuana, or a pot plant, or some item that is under a certain weight.   BP: Does that also include certain paraphernalia? A pipe with residue on it, or…   MK: It could. It really depends on the facts and the prosecuting authority. But possession of paraphernalia is technically not a drug in itself. Paraphernalia means a drug used to carry, store, conceal, ingest, or inhale. For instance, a marijuana pipe would be used to inhale or ingest marijuana. So that in and of itself is a misdemeanor of the first degree, and that’s punishable the same way but does not carry with it a driver’s license suspension. So that’s pretty significant with people who are concerned, especially people who may have some significant prior criminal history. Now, if there’s enough residue inside of that pipe—and I’ve seen it happen before, where people are charged with both possession of marijuana and paraphernalia based upon a little oil that’s found, or maybe a little bit of burnt residue that’s found inside the pipe. The prosecuting authority can certainly try to convict somebody based on that if they have it, but the idea is having enough to test it and having enough to show that it actually is something that can be identified as marijuana.   BP: So you said there are three categories, possession…   MK: The next one is felony possession. Felony possession is the possession of any amount of marijuana that’s greater than 20 grams. That would be a more significant amount—it’s a third-degree felony punishable by up to five years in prison for a first-time offense. It’s usually not that significant of a crime; it’s usually a probationary type of sentence. Finally, there’s the trafficking amount of marijuana. Marijuana is unique. It requires a very large amount to be considered trafficking by possession. But the trafficking statute says that any person who is in excess of 25 pounds of cannabis or 300 or more pounds of cannabis plants commits a felony in the first degree known as trafficking. In excess of 25 pounds but less than 2,000 pounds—that’s punishable by three years in the Department of Corrections and a $25,000 fine. If it’s 2,000 pounds but less than 10,000 pounds, or if it’s 2,000 or more cannabis plants, it’s a seven-year minimum mandatory prison sentence and $50,000 fine. And the last category, if it’s 100,000 pounds or more, or is 10,000 or more cannabis plants, the person will be sentenced to a mandatory minimum imprisonment of 15 years in the Department of Corrections and a $200,000 fine. And those are minimum mandatory prison sentences. What that means is that the person serves 100% of that sentence. They don’t get out any earlier than 15 years, for instance, if they are sentenced to that. And the judge has no discretion. If a person is convicted of that charge, the judge must sentence that person subject to a very few exceptions.   BP: Okay. And I’m not trying to encourage our audience by this question, but so you’re saying that if you have 24 pounds—   MK: Then it wouldn’t be trafficking. And that seems like a lot. I mean, marijuana is one of those few drugs that you need a much larger quantity to get into that ultra significant penalty phase, that trafficking amount. For instance, a drug like oxycodone is 4 grams. So we’re talking 4 grams opposed to 28 pounds. A lot of that, I think, is based in large part because, with the marijuana plant in general, there’s a lot of plant materials to that—that thing can get heavy pretty quickly. So that might be part of the reason why there needs to be such a significant amount.   BP: And so, just like in the last podcast we talked about, whether you get a felony or a trafficking, even just possession, the point would be to hire a criminal defense attorney early, right?   MK: Sure, because there are a lot of reasons why you wouldn’t want any kind of conviction, whether it be a misdemeanor or a felony. One of the things that happens is, for every one of these, you’re going to get a driver’s license suspension. And in the state of Florida, we don’t have the same public transportation that they would have in the state of New York. It’s very difficult to maintain a living without the ability to drive to work, drive to school, drive to the store to get what you need like food. So it’s particularly burdensome. Also, to prove possession is unique. A lot of times these possession cases come up involving more than one person, meaning usually it’s not just one person who is stopped. Usually it’s in a group of folks. And a lot of legal issues are raised, because it’s called constructive possession. This comes up when there’s more than one person who could have exercised dominion or control over the substance. It’s very difficult, in my mind, for the prosecutor to prove constructive possession if they don’t have the necessary statements from witnesses or if they don’t have the necessary statements from your client. Some people might think that all is lost and want to just go in and give up, but there’s a lot more to it than just being caught in a car with drugs.   BP: Right. Well, Mike, anything else on marijuana?   MK: No, sir.   BP: All right. You’ve been listening to the FloridaDefense.com Podcast with Attorney Mike Kenny of the Bauer, Crider, and Parry Law Firm.

Brad Post: We are speaking to Tampa Drug Crimes Defense Lawyer Mike Kenny with the Bauer, Crider, and Parry Law Firm, and you’re listening to the FloridaDefense.com Podcast. Mike, how are you? Mike Kenny: I’m doing well. How are you? BP: I’m doing great. Let’s kind of dive into it today. We’re going to be talking about mainly drug crimes and an overview of drug crimes, so where would be a good place to start? MK: Well, I guess talking about the categories of drug crimes. In the state of Florida, you have essentially three different areas where you get a drug crime. And obviously there are subcategories, but the three different areas are misdemeanor possessions, felony possessions, and then there’s trafficking possessions, a felony possession that comes with a much more enhanced level—it’s a first-degree felony punishable by up to 30 years in prison. Any trafficking charge has a specific minimum mandatory prison sentence, meaning the judge has no discretion but to give you the minimum amount of time in the Department of Corrections, and it’s a day-for-day sentence, meaning 28 grams of cocaine is a three-year minimum mandatory prison sentence. So if you were found guilty, and the judge were to sentence you, he’d give you no less than three years in prison and you’d have to serve 100% of that three years. There would be no parole or probation or anything like that to get out earlier. You’d serve 100% of three years. BP: So on a trafficking offense, there’s subcategories, it depends on the amount of drugs you have. MK: Correct, it goes by the weight. A lot of people don’t realize that it goes by the actual weight of the substance tested or any mixture thereof. So, what gets people into trouble are pills. These pills obviously are pills like oxycodone and OxyContin, and all you need is four grams to have a three-year minimum trafficking charge. The problem with it is, it’s not four grams of the actual ingredient—the oxycodone—but it’s a mixture, and those pills are pretty heavy. So a very small quantity of pills in a pill bottle, if you don’t have a prescription, is going to qualify you for a trafficking charge. And trafficking in Florida is unique; it doesn’t just go after people who sell drugs or transport drugs into the state. Just the mere fact that you possessed an item that weighed a certain amount could give you a trafficking charge. I’ve always had a problem with this because, you know, I’m not the first person to say it, but we can probably all remember a time when we’ve read somewhere in the news that there’s a pill epidemic. Young kids, especially because of the free and easy access of these pills, become addicted. And you have people who are addicts, who are not out selling it, not out harming anyone but themselves, find themselves getting arrested with a small quantity of pills in their pocket, and they’re looking at going to prison anywhere from three years to the rest of their lives. So that’s a problem that people run into when we’re talking about prescription pills especially. BP: And it’s based on weight, so I guess with different drugs—marijuana, cocaine, oxy—there are certain parameters around each one on the weight? MK: Right. And the statute—it’s Florida Statute 893.135—has a schedule for what the amount is for each drug. For instance, cocaine is 28 grams, oxycodone is four grams. Those are the minimum amounts for a trafficking charge, and it will vary from drug to drug. The unique this is, I mentioned some drug possessions are misdemeanors. Marijuana is the only drug that under 20 grams is considered a misdemeanor. So if you have 19 grams or 19.9 grams or less, that would be a misdemeanor of the first degree, punishable by up to a year in jail or maybe a year of probation. Anything 20 grams or over is a felony, so that would be a felony possession, which is a third-degree felony in the state of Florida, punishable by up to five years in prison or five years of probation. BP: So you would recommend for any of these categories, not just felony or trafficking, to hire a criminal defense attorney—even for a misdemeanor, correct? MK: Oh, absolutely. People don’t realize that walking into court completely unarmed and just entering a charge—that moment in time can have an impact on the rest of your life. And a lot of people tend to be fast and loose with things. They say, “Alright. We’ll just see what happens.” Well there’s nothing you can really do three years down the line, when entering a plea to a charge somehow precludes you from getting that job that you really wanted. One of the unique things about the state of Florida, as well, is that they’re pretty fierce when it comes to drug prosecution. They have a lot of drug ports, and they try to help people, but they punish drug possession with a one-year driver’s license suspension. So if a person were to walk in, and they were adjudicated guilty of even a misdemeanor possession of marijuana, they’d have the potential to lose their license for up to one year. And that, for a lot of people (especially in this state), could be very problematic with regard to employment, school, or anything of that nature. BP: Well, that’s kind of an overview of the three areas of drug crimes—misdemeanor, felony, and trafficking, and our next few podcasts, let’s get kind of into specifics: marijuana, cocaine, and other drugs. Anything else, Mike, on an overview of these crimes? MK: No, that will be it. The one last thing is there is another misdemeanor possession charge that’s not marijuana. We’ve heard the term “controlled substances”—these are categories of drugs that are considered controlled by their propensity for addiction or things like this. There are drugs that are not listed in the statute, usually drugs your doctor gives a prescription for that haven’t been designated as controlled substances. All of those drugs are considered “legend” drugs. So that would be like an Ambien—something that’s a sleep aid—Viagra, something like that. If someone is caught with something like that, it wouldn’t be a felony, but because they don’t have a prescription, it’s still illegal, and that would be a misdemeanor. It’s called possession of a legend drug. BP: Okay, as long as the amount is below the weight—or is that even an issue? MK: No, weight doesn’t even come up. It just falls into a category where they haven’t listed it as a controlled substance, but you still need a prescription to obtain it, and because you need a prescription, if you have it without a prescription, it’s still a problem. BP: You’ve been listening to the FloridaDefense.com Podcast with Attorney Mike Kenny of the Bauer, Crider, and Parry Law Firm. 

Sex Crimes Kids  Bauer Crider & Parry Podcast Brad: Alright, you are listening to the FloridaDefense.com Podcast. We are speaking to St Petersburg Sexual Battery Defense Lawyer Mike Kenny at the Bauer Crider & Parry Law Firm. Mike, how are you? Mike: I'm very well. How are you doing? B: I'm doing well. Today we're going to be talking about sex crimes versus kids but I want to just kind of throw out there I know you guys have multiple offices. You kind of cover a wide area there in the Tampa, the greater Tampa area. Could you mention kind of, well first of all, let's talk about the offices that you have and then some of the other areas that you target. M: Well, we have an office in Hillsborough County, and that office is actually right across the street from the courthouse on Twiggs Street in Tampa. So that office is kind of designed for our Tampa clients and our Tampa type cases which covers anything from Plant City, Wesley Chapel, New Tampa, obviously the entire Tampa area. We have an office in Clearwater, and that's kind of more of our Pinellas County office and obviously it's gonna cover all of your cases throughout Pinellas County which will be Clearwater, Clearwater Beach, St Petersburg, St Pete Beach, Largo, Tarpon Springs, you've got Pinellas Park, Kenneth City, obviously Pinellas County is a large area and we definitely cover a lot of cases throughout the county there. We have two offices in Pasco County. We have one in Port Richey and one in Trinity Florida. Obviously our Pasco County reach covers New Port Richey, Dade City, Port Richey, Holiday. The Port Richey office also covers Brooksville cases which I tend to handle on a repeat basis and the main area in Hernando County that I cover is going to be Brooksville and obviously then we have our Trinity office. Our Trinity office also covers, because we do a lot of work in Pasco County, covers the same places in Pasco County, New Port Richey, Port Richey, Holiday, Dade City, Hudson. B: Great. So you guys are pretty much all over the place in the Tampa area with four different offices to choose from.  M: Sure.  B: Well, let's - Mike, let's go ahead and jump in. Let's talk a little bit about sex crimes versus kids or versus a child and I'll just kind of if you can kind of just give us an overview of that. M: Alright, well, so there's two types of sex crimes, or two categories of sex crimes involving children. And there's actually, now that I think about it there might actually be even three if you want to kind of divide it up even further. But the sex crimes are initially the battery - whether or not there's a sexual battery. Battery, as I talked about in a previous podcast talks about essentially penetration. That's what you're looking for. Sexual battery is defined as oral, anal, or vaginal penetration by or union with the sexual organ of another or the anal or vaginal penetration of another by any other object. So that's kind of what you look for if you're talking about was it a sexual battery or not? And there's other types of crimes and crimes that don't involve penetration but involve touching - that's where you get the term molestation.  3:46 (skipped per Brad's request) 3:54 But those types of crimes are crimes that don't involve any type of sexual battery, whether it be penetration of the mouth with a sexual organ or the penis or vagina. So in that set of circumstances, you've got that category and then the next category is the age. Obviously, as we talked about before, the age of consent for sexual activity in Florida, generally speaking, is 16 years old. So the key age that we look for in a sexual battery case is the victim has to be 15 or younger. So if the victim is under the age of 15, that becomes a crime if there is either a molestation or there is a penetration, sexual battery type situation. So if you have a scenario where there has been alleged sexual activity like actual intercourse between someone over the age of 15 - and that could be 16, 17, 18, whatever, you don't even have to be an adult, but someone over the age of 15 having sexual intercourse with a 15 year old, that is a lewd or lascivious battery. And that's a specific crime that addresses sex of a person younger than 16 - basically 15 and older than 12 - it's a lewd or lascivious battery. If a person, this is the next category that I was going to talk to you about - this third unique category. If a person who is a victim of a sexual battery is under the age of 12, that in Florida is defined as a Capital Sexual Battery. Years and years and years ago that crime was punishable by death. Now it is obviously punishable by life in prison without parole. So if a person is convicted of a sexual battery, there is no other option for that person other than a life in prison type sentence. So the age matters very much because it completely changes the term of years a person might be facing and the severity of sentence the person might be facing. If a person's under 12 and it's sexual intercourse, it's gonna be a life imprisonment sentence if they get convicted. If a person's under 15, it's gonna be much less significant, it's not even gonna be a life sentence at all. The next question or category of concern is the molestation type charges. A lewd or lascivious molestation can happen above or under the clothing so situations where a person is fondled over their shirt, for instance, that can qualify as a lewd or lascivious molestation.  B: Mike, can I jump in real quick there. That is similar to - you said that you don't necessarily have indecent exposure there in Florida, but that's kind of what that's referring to, is that correct? M: No, that's another unique, it's not really a crime where there's contact with another person, but in Florida, obviously everyone can imagine there's crimes that involve people exposing themselves to other folks. In Florida that's called a lewd or lascivious exhibition. A lewd or lascivious exhibition, the key phrase there is lewd or lascivious, that the person is exposing him or herself in a lewd or lascivious manner, which means of a sexually oriented nature. For instance, give you an idea, a guy who's driving on a long trip and had a lot to drink beverage wise and needs to get out of the car and use the facilities of the forest, that person is not committing a lewd or lascivious exhibition if he gets caught by police urinating on the side of the road. Now, there is another crime for that. That's generally speaking a disorderly conduct type crime, but there's also a crime called exposure of sexual organs. That's a misdemeanor and it's not a sex related crime per say, you don't have a sexual registration requirement or anything like that, but exposure of sexual organs comes up when a person's (obviously sexual organs being a penis or a vagina) are exposed and there's nothing about the act in and of itself that shows it's of a sexually motivated manner. There isn't any talk about sex, there isn't any fondling. There isn't anything that would indicate other than the person is exposed. So that's a misdemeanor. But if a person exposes himself and exposes himself to a person under the age of 16, that's when you start to get into the lewd or lascivious exhibition problem. That's when you get to the felony aspect of it. It has to be both an exposure and it has to be an exposure in front of a person under the age of 16, you need a witness to it who is under the age of 16, and it has to be again, of a lewd or lascivious manner. So it's got to be something that is sexually oriented and I'm sure we don't need to go over every single scenario where that could be, but some unique cases have come up where there have been cases that have been litigated and actually gone up to appellate courts where a person fought a lewd or lascivious exhibition conviction because he or she answered the door and he happened to be naked from the waist down and there happened to be some children who were at the door. Some discussion about those cases talked about how he might have been in his own home but he clearly knew that there was children coming to the door to sell something. Sell raffle tickets, girl scout cookies, and even talked about whether or not there was - the sexual organ itself was flaccid or not. So there's a lot of things that the court looks to to describe the intentional exposure of a sexual organ designed to be in a lewd and lascivious manner.  B: Alright, one thing we didn't talk about is child pornography, which is obviously a sex crime versus a kid, right? Might be a whole another podcast, but is there anything that you want to touch on that? M: Well, the and we kind of had a podcast before talking about computer crimes, but the issue of possession of child pornography that the basic idea behind it is the person either has an image either on paper - tangible like he can hold it - or he or she has it in his computer and they're images of children. And they're not photographs of baby pictures, right? I'm sure everybody has a baby picture somewhere of his or her own child. But these are photographs that have the children in a sexually provocative manner. It's not just a naked child, but it's a child in a sexually oriented fashion. A lot of these images that get caught and punished are horrible images of children involved in sexual activity with other children or even adults. So it's not something where someone can get in trouble just for having a naked picture, because that's not necessarily pornography. Pornography has to have a sexual element attached to it. The sex crimes that we were talking about where we have the under 12 which is a life felony if it's a sexual battery. If it's not a sexual battery but a molestation, which is a hand touching the chest or the buttocks or the sexual organ of the other person, those are molestation type cases. And if the person is under 12 in that case, but it's not a sexual battery, it's still a life type felony. When I say a life type felony, those cases are punishable by 25 years to life. So the idea here, is the legislature is very hard on sex crimes to begin with and the laws are very strict, but they are even more severe when the children become of such a young age that we're talking 10 or 11 years old - anything under 12. As a prosecutor, I prosecuted tons of capital sexual battery cases. I went to trial on several and those folks who got convicted are still sitting in prison and they're going to spend the rest of their lives in prison. So the penalty is severe. That's why, if you find yourself accused of something this horrific, the first thing you're gonna want to do is make sure you find yourself a lawyer who you trust and a lawyer who you believe has got the ability to defend you. Because the cost is great.        B: Alright, anything else on that Mike?  M: No Sir, I think that covers it. B: You've been listening to the FloridaDefense.com Podcast. We've been speaking to St Petersburg Criminal Defense Attorney Mike Kenny at the Bauer Crider & Parry Law Firm. We will see you on the next podcast.

Rape Charges Bauer Crider & Parry Podcast Brad: Alright, you are listening to the FloridaDefense.com podcast. We are speaking to Clearwater Rape Defense Attorney, Mike Kenny. Mike, how are you? Mike: I'm doing well, how are you? B: Good good. Today, we're going to be talking about rape charges. I kind of set you up for that one so let's talk about M: Yeah, I just want to correct you real quick. In the State of Florida, we don't have a crime called rape. Now that isn't to say that rape as people understand it isn't prosecuted, it's just that we call it in the State of Florida, sexual battery. Rape is a term that doesn't exist anywhere really in the Statute. And a sexual battery is a crime that's defined as it basically talks about nonconsensual sex. Sexual battery talks about the either penetration of the sexual organ by either a penis, union with a sexual organ with a mouth to either the vagina or the penis, penetration of the anus - it gets pretty specific because sexual battery is actually involves a sexual organ. It can't be kissing. It can't be groping. But it's actually penetration or mouth in union with the sexual organ.  B: One thing you'd mentioned in the last podcast - the overview - was just the difference in if somebody was injured by sexual battery in the sentencing, correct? M: Yes, it's a in that particular section of the Sexual Battery Statute it says that a person 18 years of age or older who commits a sexual battery upon a person 12 years of age and injures a sexual organ on that person, commits a capital felony. Now a capital felony it's a long time ago Florida had certain crimes that were capital felonies obviously capital means the charge is where the sentence is they take your life. Capital punishment for instance. It's not longer a crime where someone loses their life if they're convicted and sentenced but capital felony now for these types of sex crimes is a life felony.  B: A life in prison? M: Yes, and there's no parole, no option for parole, no probation, it is for the rest of the person's natural life they will spend in prison if they are convicted and sentenced of that charge.  B: As a Criminal Defense Attorney, what are some of the signs that you look for in consent is really the biggest thing here, correct? M: Sure, on these types of charges, consent is the issues, because it's not gonna be one of these strict liability type crimes where the age is the person wasn't able to consent by law. It's one of these issues where two people have sex and I can tell you as a defense lawyer it is not uncommon where one individual might be under the impression that the other is consenting and then the other party to the act may have a different impression. That does comes up and what I look for is kind of what I mentioned in the previous podcast, things about what the relationship was or what the people were doing the moments before the sexual activity occurred. Were they intimate prior to this act allegedly occurring? Were they planning on having sex? Was it everything that happened kind of a normal routine up until a certain point? These things matter because the prosecutor has the sole burden to prove that a crime was committed and specifically they have to prove that sexual battery occurred which means they have to prove penetration, they have to prove that sex basically happened. And then they have to prove that this victim did not consent. Now people can say, "I didn't want to" but experience has shown me that there are times when reasons other than what happened in that immediate moment, folks say that it was a nonconsensual moment. Sometimes that occurs because their misunderstanding about some circumstances that occurred. Sometimes that occurs because there are other influences, outside influences that cause them to change their perspective on what actually occurred. So the key is to know what the dynamic is in the relationship between the victim and the defendant. Did they know each other? What was the relationship like? Had they had sex before? And then, simply look at the facts surrounding the circumstances and what occurred. Obviously, when cases are violent, and people are severely injured, that's obviously a set of factors that I'd be concerned about as a defense lawyer because in general terms people don't typically consent to be injured and those are cases that become a lot more serious and they are punished a lot more seriously.  5:49 B: Are there - you mentioned the kind of relationship, are there other things that you look at - Communication back and forth via texting or messaging and just kind of see M: Sure, I've had plenty of cases where there is an allegation of a sexual battery and there is communication subsequent to the event where it's warm messages between both parties. They talk about meeting up later. And those are crucial pieces of evidence because it's what happens after the effect. You know, if this person sexually battered an individual then at least the common sense expectation is that the other person would not want to have anything to do with the other individual. They'd at least be cold and not talking about engaging in another event where they're together and meet up. So those are key. I don't know why people make things up when it happens sometimes, there's really no reason why. My only concern is what the facts and evidence is going to be when the prosecutor is looking at my client. And my job is to look at what those factors are and find out where the weakness is. Those post sex communications oftentimes are crucial in showing what really occurred that night.  B: In the last podcast, you also mentioned that husband and wife can have nonconsensual and it be considered sexual battery, correct? M: That's correct. The statute doesn't really take into account anything about the relationship except for if there's a familial type relationship, like a father/son, father/daughter, mother/son, mother/daughter. There's an enhanced penalty for that, but there isn't some defense to sexual battery saying, "hey it's my wife" or "hey, it's my husband." B: OK. Alright, anything else that you wanted to cover on that? M: Well, yeah, I think that the sexual battery statutes, a conviction on any type of sexual battery charge is absolutely devastating.  It has a life changing moment for a person, because if a person is convicted of any form of sexual battery, whether it be a second degree all the way up to a life in prison one, they're going to be registered under the Florida Department of Law Enforcement Database as either a sexual offender or a sexual predator predator and that's something that is public record and that will be there forever unless some court decides to change it. That's something that it's very hard to recover from, I would expect. I think that when someone's name is out there on the internet and shows that they've committed a sexual crime of some type, it's very hard for them to find a place to live and it's very hard for them to find a job, and it's certainly hard for them to find an accommodating atmosphere. Whether that's well deserved or not, the part that is so serious is when these things are maybe some crimes that people shouldn't be convicted of is when everything is on the table. Because you have a person's life, you have a person's entire future. Even if they beat the crime, even if they go to trial and we go to trial and is successful the jury is convinced and they're found not guilty, it's still very hard to recover from being arrested for such a serious crime like this.  B: It really is. Alright, well, we're gonna pick up on the next podcast talking on kind of a similar realm. We've been speaking with Clearwater Defense Attorney, Mike Kenny, with the Bauer Crider & Parry Law Firm in Tampa Florida and the surrounding area, and this is the FloridaDefense.com podcast.     

Failure To Register Sex Offender Bauer Crider & Parry Podcast Brad: Alright you're listening to the FloridaDefense.com podcast. We are speaking to Criminal Defense Attorney, Mike Kenny. Mike, we're going to be talking today about the failure to register as a sex offender in Florida. Mike: That's right. Good morning. There's actually two types of registration that people have to have with sex type crimes. The first type is to register as a sexual offender, and then a heightened registration, the next type is failure to register as a sexual predator. The designation means something. It means something as far as what the requirements are to register. It also is indicative of how serious the crime was. A person who has to register as a sexual offender is a person who has been convicted of any type of sex crime. Basically, any sex felony in the state of Florida. And that could be anything involving a sexual battery, you know and adult with an adult, or it could be any type of sexual crime involving a juvenile that's a second or third degree felony. The sexual predator is reserved for a person who has been convicted at least one time of a first degree felony, and those are the most serious types of sex offenses really except for capital type crimes, or they have two separate convictions, whether it be a second degree felony or a third degree felony - two separate convictions at different dates. Those folks are sexual predators. They have heightened registration requirements where a sexual offender has to go into the sheriff's office twice a year - once on his birthday and once six months after that. A sexual predator has to actually do it four times a year. And the idea behind it is so everyone can keep track of where everybody is and they know at all times where these people are living. I will tell you the most common types of crimes as far as failures to register, the most common types of issues that come up are that the person moves out of one address into a new address and they do not update anyone in the time period that they need to.  And it is quite a burdon to have to live under these rules your entire life but you don't have the freedom to move from one place to the next without letting everyone know where you are first. And I think what some people run into, is they run into a problem where they're living a difficult life in the situation that they are in - maybe some neighbors, some people in the community have a problem with where they are and they want to move somewhere else and find another place to live without that scrutiny and then they find themselves getting into trouble if they don't update their address. But that's usually the most common, that the person has changed their address and has not provided an updated address. The other type of failure to register crime that comes up is they don't go into the sheriff's office to update the information on the required dates. They have basically check in dates. These crimes are so serious now where they basically score a mandatory prison. Meaning that they are in and of themselves crimes that would send you to prison, let alone the fact that the person would have a prior history typically involving a sex offense. The unique thing about sexual offender crimes and sexual registration crimes is that there's actually more than one type of address that a person can have. I'm involved in a trial now coming up which involves the type of address the person had. So for the most part a person has what's called a permanent address as a sexual offender. And a permanent address is defined by statute as any location where a person lives greater than five days - five consecutive days - that's considered your permanent address. So whether you're staying at a hotel for six days or you're staying at some park like an RV Park for awhile, that would be your permanent address. The other type of address a person can have is actually a temporary address. And a temporary address is defined as any location where a person is going to stay greater than five days in the aggregate. 4:40 And the aggregate means the combination, if you combine all the days together. And that kind of comes up if a person has maybe some family in another part of the state and they go and visit their family and they know they're gonna visit their family hroughout the year but it might not be consecutive days but it might be a couple days here, a couple days there, and a couple days there. That is something the person is going to have to register as a temporary address. Both of those addresses when registered are viewable, they're public record. They're on the Florida Department of Law Enforcement website. If a person was to do a website search of that person's name, they'd find out exactly where he or she is registered as both their permanent and temporary address. Some confusion comes up as far as whether a person is living at a temporary address, whether that should be permanent or a permanent address that should be temporary, and that's unique. I think the crux of that issue is whether or not it's a consecutive stay or not, meaning whether you're staying in there day in and day out for greater than five days. That's gonna be your permanent address. There is even in an effort to accommodate every type of individual out there who might find him or herself with these types of charges, there's even these transient types of addresses. Transient type of addresses are for folks who unfortunately find themselves as homeless and there's literaly like "under a bridge" type addresses. They basically inform the sheriff's office where they're going to be on a regular basis so they know where to find them. And I get the public policy behind it. Years and years and years ago there were some horrible crimes that happened to some children and the effort was to locate some individuals that might be the first suspects of certain types of crimes and they want to be able to locate these suspects as quickly as possible while there's still a chance to find the victims in one piece. So I get the point behind it and certainly there's no real objection to it. What I find is a problem with these types of crimes is that I mentioned I'm going to trial on a failure to register as a sexual offender charge. The facts as I look at them as we go through them I think there's a very very strong case. I think factually my client is in a very good position. The problem is, these crimes just by their very nature, immediately draw attention in the mind of the juror and it's usually not welcome attention. If the juror, the first probably two seconds of jury selection, when they hear that a person is accused of failure to register as a sexual offender, that juror has just been informed that the person has previously been convicted of a crime that would require him to register in the state of Florida as a sexual offender. And the first thing they think about is the most horrible type of sex crime you can think about against a child. That's the natural way you know people think. So that's a major obstacle to overcome even if your facts are great, you're gonna have a juror who's going to be thinking some pretty negative things about you. So, in my experience, it's been in order to have an effective trial on those types of cases, you need to make sure you find out that your juror - you want to know the ones who kind of already got a bad taste in their mouth based upon the nature of the charge. And of course you can't you can only get so deep on that. But you want to be able to present to the jury the facts and you want them to understand something about your client. Something about your client where they realize he's not a name on a piece of paper with this horrible crime attached to it but you want them to see the big picture. Sometimes I talk to the jury about being courageous. A lot of these cases are about being courageous. It's really easy to sit down, look at some facts that you don't like, and say, "you know what, I don't like the charge. I don't like what this person was accused of doing in the past. I'm not even going to give it too much thought. This person is better off convicted anyway." That's the easy thing to do. It's not always easy to be courageous and to be courageous is a person who looks at the facts and says, "I need to do what I know is right based upon the facts as I understand them. I may not like the crime that this person was convicted of. I might not even like this person, but I need to do what's right because that's what the law requires me to do." So sometimes, as a defense lawyer, I really want to highlight how I want courageous jurors. Jurors who are able to almost hold their nose and check the box - almost do what they really don't want to do but they know that they have to do it because it's the right choice. And those are the folks that really are your best jurors because those are the folks who look at the facts and they don't let those outside influences overwhelm their capacity to understand the truth.  9:42 B: That's good. One question that I had. You mentioned that 16 is the consensual age for sex. That means basically, cause I believe in Oklahoma it's 18 so you know an 18 year old and a 17 year old couple that have been together a long time and they have sex, the parent gets upset, something happens, they're registered as a sex offender for the rest of their life. Is that kind of the same with say 16 and 15?  M: Yes, actually it's kind of unique. I want to highlight there's a unique part in there where there's a change. So 16 is the age of consent and that works so a 16 yr old can have sex with any person who is 17, 18, 19, 20, 21, 22, even 23. Once you get past 23, and the other person is 16, once you are 24 or older the other person has to be at least 18. So it's the reason why the legislature came up with that gap in years, the reason why is they didn't want to have situations which probably happens more often than we're prepared to recognize or admit, but folks in school - folks in high school. You have a freshman in high school who might be 14 or 15 and then you have maybe they're maybe a little bit more mature emotionally and they end up talking to people who are a little bit older in high school and they end up engaging in a relationship with someone who's maybe a Sophomore, Junior, or even Senior - a Senior you're almost 18 if not 18 years old. And the legislature didn't want to have a situation where they take two students who go to the same school and you're basically making someone a sexual offender when the statute clearly was not designed to do that - punish high school kids like that. So what they tried to do is give a range. So it's 16 up until 23 those two different ages are fine. Once you hit the age of 24, the other person has to be 18 years old. The other unique thing is, and it's almost counter productive but if a person is under the age of 18, so they end up having sex with an adult and there's one adult who is over the age of 18 and another person is under the age of 18, if that person gets pregnant, obviously if that girl gets pregnant, there is a crime for that called child abuse by impregnation. And so what that sets up is a scenario where the legislature says it's legal for a 16 yr old to have consensual sex with a 20 yr old - there's nothing about that that would be illegal. However, if the 20 yr old got the 16 yr old pregnant, that would actually be a crime called child abuse by impregnation. So it's one of those weird catchalls that a person even though they might be considered permitted to have sex, you're not out of the woods yet if somebody gets pregnant.  B: That is interesting. Alright, well you've been listening to the FloridaDefense.com podcast. You've been listening to Attorney Mike Kenny at the Bauer Crider & Parry Law Firm on this one has been on Failure to Register as a Sex Offender in the State of Florida.

Overview of Sex Crimes Bauer Crider & Parry Podcast Brad: Alright, good morning, this is the FloridaDefense.com podcast. We are speaking to Tampa Sex Crimes Lawyer, Mike Kenny with the Bauer, Crider, & Parry Law Firm. Mike, how are you doing? Mike: I'm doing well. Good morning, how are you?  B: Doing well, doing well. Well we've got some interesting topics that we are going to be discussing today and kind of the main one today is just kind of an overview of sex crimes.  M: That's right. That's right. The sex crimes statutes in Florida, and I say statutes because there is a couple of different sections that you'll kind of find them in, cover a broad base of conduct that comes into play with sex related offenses. And kind of the way I look at it is you kind of have really two sections. You have this sexual battery section which is in Chapter 794 of the Florida Statutes, and that talks about basically consent type cases, cases where consent is actually an issue in the case. Where the person whose sexual activity was taken place with was not a willing participant. There's a whole bunch of sections under that that we focus a lot of time on in our firm as far as defending. And then there's another section, and that section falls under the section where we're talking about really age of the victim. And those are your lewd or lascivious chapters and those talk about mainly the age of the victim. Basically the incapacity of the victim to even consent, even if the victim was a willing participant. So, it's kind of broken down into those two parts, and they matter very much, because obviously they matter as far as what the defense might be in a certain set of circumstances and really what you want to look for as a criminal defense lawyer. I was a prosecutor for 5 1/2 years in Pasco County and I tried very many sex offenses. It's one of the main investigations that I did on a regular basis was involving sex crimes once a week. And I can tell you that those two crimes are kind of handled differently. The consent oriented crimes, there's a lot of focus on how the State might prove that the victim was not a willing participant, that the victim did not consent and there's a lot of evidence that the State might point to. But when you start talking about sex offenses that are involving minor victims like children, consent isn't really even a question or an issue. So, for instance, the Age of Consent, to have basically sex in Florida is 16 so anytime you have a case involving anyone under the age of 16 there could be a 15 year old and somebody older in school, maybe 17 or 18 in school, whether or not the 15 year old alleged that it was without her consent or his consent or not really is an irrelevant question because at the age of 15 they're not really deemed legally able to consent so that doesn't even come up in a jury instruction. All that has to be proven in a case involving someone under the age of 16 is that the act actually occurred. Whereas when you have a case involving two consenting adults, or shouldn't say consenting adults but two adults, two 18 year olds or even two 17 year olds, you have to prove not only did the act happen, but you have to show the lack of consent on the purported victim in a case.  4:06 B: Mike, I wanted to kind of mention something there. You mentioned you were prosecution in Pasco County, correct? And so you kind of worked the other side of the bench and now you're working the defense side. That's why I like hearing your perspective on these things. What - you mentioned that there was certain evidence the state would look at in a conviction, correct? What were some of the things - and I know you're working as a defense now, but what were some of the things that you were commonly looking for as a prosecutor. M: Well, I guess it depends on what kind of case you're looking at. If you're looking at a case involving two adults, what you look at is the relationship between the two parties. What was involved leading up into that relationship, whether or not there was any physical force used in the sexual activity that happened. It's not just that a victim would come in and say, "I didn't consent to this" That obviously carries a lot of weight, but as prosecutors we also realize that we have to prove cases, so we have to look for certain evidence that might suggest or might prove beyond a reasonable doubt to the jury that the case is exactly what we say it is. So the dynamic of the relationship - obviously a relationship where there is a couple that knows each other for a long period of time is a little bit different than two strangers and someone alleges that they were sexually battered as they were jogging in a park. Obviously, that's gonna be a case that's gonna have a lot more, I would say, a lot more of an impact on a jury, because there's two people who don't even know each other, never met each other, and the jury might be a little bit more likely to be convinced that this was a situation that was nonconsensual, versus a situation for instance where you have a husband and a wife. A husband and wife have been married for several years. In the State of Florida, they don't talk about the relationship being an issue to consent, all it talks about is that sexual activity happened without the other person's consent. So a husband can be convicted of raping his wife and vice versa in the State of Florida. B: Oh wow. Ok. Alright, so you kind of basically you kind of put it in two different categories, the consent and then the age and vulnerability, for the most part?  M: Yes, and I think that you'll find that the statutes go on. Unfortunately there is a number of different ways, especially in this new world that we live in where computers are involved, there's a number of different ways people can exploit other folks. So the Statutes kind of go on and on and on to capture every particular scenario that can be envisioned, but there's the consent type statutes which are basically the sexual battery statutes. Sexual Battery in Florida is basically what people might understand as rape. We don't have a rape charge, it's called sexual battery. And those statutes talk about a person having sex with another person and that person either didn't consent, that's basically your standard - when I say standard, that's your second degree felony. A second degree felony is punishable by up to 15 years in prison - that's the maximum you can get for that. And then you kind of have different levels of a sexual battery. So one is just basically without consent. Two people have sex, one of the persons was not a consenting party to that, that's a sexual battery. The next step is whether or not a person has sexual battery or is alleged to have committed a sexual battery and then the ideas that the person used force or threatened to use force. In that scenario, it rises up a level and becomes a first degree felony and then there's  another level beyond that which talks about whether the person was actually physically injured, or the sexual organs of the person were physically injured and that's a felony that can be punishable by life, even for a first time offense. So, you start off at the question of consent and then there's enhancements to that type of crime which brings the punishment up in levels of severity.  8:34 B: One thing I wanted to ask on the age and vulnerability area, and you mentioned just kind of if they're coherent enough to consent or not consent. Is that something that you always look at is whether alcohol was involved, drug use, that type stuff? M: Well, sure that's - that believe it or not can fall into just a regular sexual battery scenario. The as far as the alcohol involvement anyway or any of that. Consent is the question. So anytime a person alleges that he or she did not consent to the sexual endeavor, the issue is whether or not they were of sound mind to give consent or whether they were actually forced to do it. Whether they were threatened with force to do it. So a person can be absolutely under the influence and so inebriated that they don't really recall the events that took place and there's an argument that that was specifically an endeavor a sexual experience that did not involve consent, did not have consent from one of the parties. There have been plenty of cases that I had as a prosecutor where there are individuals at a party and one of the people passes out and when that one person passes out, the other person still engaged in sexual intercourse, and that would qualify as a sexual battery. The Statute actually specifically talks about cases where obviously we've heard the term "ruffy" before. The Statute specifically talks about a sexual battery would be a situation where a person engaged in sexual activity with another person when the act - the person committing the act - knew either by himself or knew that someone else administered an intoxicating drug or something that would sedate the other individual. And that comes up, has come up a lot in prosecution.  B: Alright, anything else, Mike? I know we've got a few more things we're going to cover in the next few podcasts, but  M: Sure, yeah the interesting thing about the you know if you want to talk about the cases where you have people being drugged, the interesting thing is the most common date rape type drugs that have been used, are used because they are very quick to be basically not necessarily effective or work but your body processes them very quickly so within 24 hrs whatever that person was administered isn't going to be there. So a lot of times the people don't even realize what happened - the people being the victims - don't even realize what happened until later. Don't even, they're curious as to how they found themselves in such a situation. And by two or three days later, it's too late to even test for the presence of the intoxicating substance. But the biggest, I think the most important issue to look at when you're looking at these two cases, is really the age is going to determine how the case is prosecuted, because if the victim is under the age of consent, meaning the victim is under 15, the prosecutor really I wouldn't even expect him or her to even concern himself with the consent aspect, meaning to prove that it was a nonconsensual endeavor because it doesn't matter. It's not a relevant question. It doesn't tend to prove of disprove anything that would be at issue in the trial. So all that has to be proven is that the act occurred and that's a lot - I don't want to say easier, but it's one less thing that the prosecutor has to do versus a case where you have two adults who have met the age of consent in Florida.  B: Well, I'm gonna stop you there Mike, and we'll pick up in the next podcast. Alright, you've been listening to Mike Kenny, Tampa Sex Crimes Lawyer at Bauer Crider & Parry and you've been listening to the FloridaDefense.com podcast.      

Podcast 9 Brad: Alright, you're listening to the FloridaDefense.com podcast hosted by The Bauer Crider & Parry Law Firm. We're speaking to Criminal Defense Attorney, Mike Kenny. Good morning, Mike. Mike: Good morning. How are you? B: Good. The past few weeks we've been talking about search warrants. We've kind of gotten into the technical ends of it. We talked about also search warrants on computers.  Today's a little bit different. We're going to be talking about a specific case that you had to file a motion to suppress that evidence based on a search warrant, correct? Michael: That's right. Some years ago I had an individual that was arrested and charged by information, which is a charging document in the state of Florida, with possession of 20 counts of child pornography. This warrant was executed kind of like we talked about last time, in relation to a search warrant on a computer. The agency involved made a determination that there were known images of child pornography going to a particular IP address. They determined that the IP address owner - the company that had the IP address was a particular company, so they sent a subpoena out to that company to get the name of the person whose account the IP address was listed to. And then they go that person's name, they got that person's address, and the law enforcement agency went to a judge and got a warrant to search this individual's computer; essentially his home and all the computer items in the home. The search warrant was executed and the individual was inside the home. The individual was arrested after  certain images of child pornography were found on the computer. When I say certain - numerous amounts at a minimum of 20 which is what the state ended up charging him with initially. And then the person came to hire me. So what I do, in a case where I know that there is a search warrant, the first thing that I want to do is look at what that search warrant says and then I want to look at what's called the curtilage curtilage to the search warrant.  So the search warrant is the actual warrant from the judge. The actual document that the judge gives to the police officer saying "you may search this home" and I review that warrant because I want to make sure that everything in the warrant was followed. As I said before last week, search warrants are written with great particularity. They tell exactly what is allowed to be searched and where and all of that. So you want to check that first to make sure it's not too vague. You want to make sure it meets Constitutional muster, let's say, and all the rules were followed. And then, what I think might be even more important than the search warrant is the affidavit for search warrant. The affidavit for search warrant, as the first name implies, the affidavit is the statement under oath from the law enforcement officer outlining the reasons why he believes evidence of a crime is going to be found in this particular home, this particular address. So what a law enforcement officer has to outline in an affidavit for a search warrant is A that a crime is committed and that he believes that evidence of that crime is gonna be found here and he's got to tell the judge why. So I reviewed this affidavit and I noticed a couple of things that probably immediately jumped out at me. I would say the first thing that jumped out at me, what I read in the affidavit was that the images when the officers were initially doing their search - not the search but the internet gathering before they actually get the warrant - I noticed that during that period of time, the person, my client lived at a different address. He lived at one particular address in an apartment community and all of the images that the law enforcement officers had which they determined were going to a particular IP address were going to this one house or this one apartment. Some time had passed and then the law enforcement officers went to secure a warrant and they realized that during that period of time my client had then moved to a new address. Law enforcement officers went and secured the warrant. They didn't do any additional searches or any additional internet gathering. They just asked the judge for the warrant and then they went and executed the warrant. So why does that matter to me? Why does that jump out at me? Well, because the first thing that you have to understand is that the probable cause question is probable cause that evidence of a crime will be found in the place. A person may have committed a crime, but you're not really getting the warrant to arrest the person, you're getting a search warrant. You're getting a warrant to find evidence. So if a person moves from one location to another location, one very obvious question might be, "where is the belief that the evidence will still be in this new place? Why would we believe that it was transferred from one place to another? There's a lot of other questions that come after that but that's the first one that may come to mind. The other thing that I noticed was the way the warrant was written, and I think it was written this way because there was no other way to write it, but the way the warrant was written, it was saying that unknown persons in a particular county were downloading images of child pornography. It specifically said, "the information leads the affiant to believe that a computer or other digital media capable of securing internet access of the above described premises residence curtilage or related vehicles thereon was knowingly used by unknown person (and it even has a forward slash and an s) as the instrumentality of a crime or means by which a felony was committed. So that word "unknown persons" just jumped out at me. Because what is that essentially saying? Well, that's saying that at this point there is no evidence or information that the law enforcement officers have to believe even who the person is downloading the images. And that obviously makes sense, because all you get when you get an IP address is a person who has an account. And as I said last week, tons of folks have access to computers where multiple users maybe using that computer. So that was one other thing that jumped out at me. And the last thing that jumped out at me, which may have been the most crucial in everything is what jumped out at me after I started reading the police report. What I learned from the police report is that the judge allowed the officers to search the home and when the officers went to search the home, they realized that that particular person wasn't there. Now, in my experience in doing this for quite some time is that when law enforcement officers are going to search a house, search a house for drugs, search a house for possession of child pornography, really search for anything, they really would like to do it when the person is present. They don't have to do it when the person is present, they can break down the door and execute the search. But they want to do it when the person is present because they usually want to catch the person off guard and they usually want to catch the person either in the act of the crime or where the person is in the position where he might admit to being involved in a crime. So that's one of the situations that happened here. Law enforcement officers determined that he wasn't present and they had an expectation that he'd be back at another time. And that time was beyond the then days, and I'll tell you in a minute why that's so important. Beyond the ten days that the warrant was issued. So ten days expire, law enforcement officers go back to the judge and get another warrant to search the same residence and they used the identical, the identical meaning the exact same affidavit they provided the first time. They didn't use any new information. They didn't use any follow up details. Not one word was different. It was literally a photocopy. Then they went back and they executed the search warrant, found my client in the home, found several images on the computer, and my client was arrested. So, we have three huge things going on right here. So when I found out that in the police report that a second affidavit was prepared and a second warrant was obtained, I obviously got both affidavits, both things that were submitted to the judge. And I sat there and I looked and I said, "wow, these affidavits are identical." And there's a reason why this matters. In the State of Florida, in most cases there is a concern about staleness. Staleness is, as the term implies, something getting too old. In Florida, ten days is the time limit a person has when a judge authorizes them to execute a search. And after that ten days, the information is legally, by as a matter of law presumed stale. So, the law enforcement officers got a warrant to search this house. Ten days had expired and then they went back and they provided the judge with the exact same warrant they showed before. So, the first thing that goes off in my mind is, "well, if as a matter of law, the facts that were provided to the judge are now stale, meaning no longer sufficient to justify the search of the residence, you can't provide the same exact facts to search the residence again. You have to at least provide something new. At least throw another word in there. Do something. But these folks didn't do that. They took the same exact affidavit and just made a photocopy. They got the same facts and the judge issued a warrant again." And I'll tell you one of the trickiest parts in a search warrant case is the fact that a judge actually issues a warrant. We have protections. We have protections from unreasonable searches and seizures and a warrant issued by a judge is considered a very high indication that those rules are followed and that person has been subject to a reasonable search. That's because a judge actually looks at the facts and makes a determination, believes there's probable cause, and issues it. So it's very hard, my experience has been it's very hard when a search warrant has been issued, that you can get - that you can win a case. That you can get a judge to actually suppress evidence and say, "no, I am going to suppress everything that was found." And suppress meaning, "I'm not going to let the state use any of the images in evidence because I don't believe there was probable cause." Because we don't expect - when I say "we" - judicial system in general; courts, lawyers, judges - nobody expects law enforcement officers to think like judges. And we don't hold them to that same standard, so if a judge issues a warrant, it's presumed valid and a search is presumed valid. So that's why it's so difficult to get a court to say, "no, I'm going to find that the search was unlawful and I'm going to suppress all the evidence found." Because presumably you have it signed off on by a judge. But in this particular case, it struck me that the law in the State of Florida is that after ten days the evidence is no longer considered enough to support a search. And the reason why we have that ten day requirement is the whole point of a search warrant is that you are telling a judge that you believe under these facts and circumstances that evidence of a crime is going to be found in a particular place.  So as sort of like a bright line rule, a way to catch these searches that go on maybe in perpetuity, that happen months and months later and disrupt the lives of folks when they shouldn't needlessly, they said ten days. If  a judge says you can search the house, you must search that house within ten days from the time the issuance of the warrant. And in this particular case, the ten days expired and then they went back in and provided the same exact affidavit. So, that's one thing I thought. I thought that this may be an issue here. Going back to the unknown persons, what that tells you right off the bat is that they don't know who the person is, and I wouldn't expect them to know who the person is just by finding an IP address like we were talking about. So why does that matter? Well, in this particular set of circumstances, we have the facts were that the person was using a wireless account. A wireless internet account, which everyone talks about it now and probably everyone has access to things like wifi, and in that particular scenario as probably everyone knows who uses wifi, any phone any computer if you're within the signal range can actually use that particular IP address. When you go to Starbucks and you have your coffee and you use your computer and you use their wifi, all the work that you are doing on that computer looks like it's going to that particular IP address. And why does that matter in a case such as this? Well, if you're living in an apartment complex where there are numerous apartments right next to each other, and you have an unsecured line, meaning you don't have to type in a code to get onto the wifi, it's potential that your neighbor could be downloading images using your IP address right next to you. I mean, I can't tell you how many times when I used to have my iPhone set on search for networks or request to be signed up on networks, I'll be driving by on my street in my car and as I pass houses by, things will pop up. Do you want to join this network? Do you want to join this network? So I know that there's a range that these wifi systems have that go beyond the physical boundaries of the house. So that's a legitimate concern. If in this particular situation, it was a neighbor that was downloading these images and my client then moves to another home, how can the officer outline reasonable facts to indicate that they believe evidence to a crime will be found in this new home when he might not even have been the one downloading the images? So that was another major issue that popped up. And the fact that all the evidence that the officers found prior to getting a search warrant was when he was going to an IP address when he was living at this other address. So that was significant.  So in this particular set of circumstances, my client is charged with 20 counts of possession of child pornography. These types of crimes are very very serious, as probably I don't even need to tell you. And they carry with them very strict penalties. So this was a case where my client was looking at a particular amount of time in prison. And after reviewing the case and reviewing the search warrant, I had some serious concerns about whether or not this was in fact a legitimate search warrant. So, I made a decision with my client after going over all the facts, to file what's called a motion to suppress. A motion to suppress is a document where you challenge the reasonableness of the search. What that entails is that you say that there's been a violation of my client's 4th Amendment. And the 4th Amendment has basically this rule saying that there will not be unreasonable searches and seizures as we've talked about before. But a rule is no good if it doesn't have any teeth. That's a double negative, and I apologize, but that's the easiest way to say it. If there isn't any teeth to this rule, no one is going to work really hard or very diligently to make sure that your rights are preserved. So the US Supreme Court years and years ago came up with a basically a penalty if the 4th Amendment was violated, and that's called the exclusionary rule. The exclusionary rule to the 4th Amendment says that if a person executed a search and violated a person's 4th Amendment right, any evidence found from that search - that illegal search - will be suppressed. Suppressed meaning the prosecutor will not be allowed to use that evidence in court. So what does that mean in a possession of child pornography case? Well, that means all of the images that law enforcement found on the computer, if the court made the determination that it was illegally obtained, would suppress all of those images and there would be absolutely no evidence that the prosecutor could present that a crime was committed. Which, long story short, means the case would be dismissed. So we filed this motion to suppress and we brought up the issue about not being able to identify the person in the warrant, so there's really no way you can transfer probable cause was my argument from one house to another house. Just because my client moved there, if you don't know who the guy is downloading the images, why would you search that new house if you don't know it's my client downloading the images? Because if you don't know it's him, you don't know he's bringing those items to the new house. That's the law enforcement way to try and get around that is what they indicate is the people who download these types of images carry these images on them. They value them highly and they take them with them wherever they go. They usually have them on them, so that argument might make sense if they could say it was my exact client who was downloading the images. If he moves from one house to the next, they could probably still tell the judge, "judge we believe evidence of a crime will be in that house because we know he was downloading images in this house. And he then moved from this house to this house. Logically, he's still gonna have it on him, because we know from experience that people like this tend to keep these images on them. They cherish them. They don't destroy them." That kind of thing. That presumption works if you can identify the person downloading the images. The problem is you can't identify the person with just an IP address. So if you can't identify the person, the presumption is utterly meaningless. One guy moves from one house to the next, why would you want to search his house? If you don't know he's the guy downloading it, how do you know it's there? How can you even say that you have a good faith basis to believe it's there? You might have a hunch, but search warrants aren't based on hunches. So that was one very compelling argument, but I would say that the argument that probably ruled the day was the ten day expiration. In that set of circumstances like we talked about, law enforcement had an ability to execute the warrant within ten days. They did not. They probably could have gone back to the judge and maybe said, well cancel this warrant out. This information is probably still relevant but we just want to get it at another time. They could've written the affidavit with new information. They could've put something in there, but instead they just used a carbon copy of the original affidavit. And if it's presumed stale legally, my argument to the court was it can't possibly be revived just because a judge looked at it a second time. 20:35 In the end the judge agreed. And the judge made a finding that the search was illegally performed, that there wasn't probable cause for the search, and all of the evidence was suppressed. Now there's a catch all that law enforcement officers have and it's called the good faith exception. I was kind of eluding to it a little bit earlier. And that's really why search warrants are so hard to beat in a lot of instances. There's this good faith exception which basically says, "listen, the whole reason we came up with this exclusionary rule - this rule where we suppress evidence - was not to give guys who are committing crimes this get out of jail free card. That wasn't the idea behind it. The idea behind it was to punish bad police behavior because it occasionally happens. And we want to make sure that law enforcement officers follow the rules. So this good faith exception is designed to say that if the officer is just simply following what he believed was a good search warrant - issued by a good search warrant - then he is not going to be and he is not been found to have acted unreasonably or illegally, then he is not going to suffer the punishment. When I say he, the government is not going to suffer the punishment of there being a failure in the warrant. And that good faith exception means that if the officer acted reasonably, the search could still be considered valid and all of the evidence would be legitimate and used against my client. And that was my biggest concern, that the court was going to say, "listen this was a warrant signed by a judge. The officer believed he had a warrant signed by a judge and he went and executed it. He didn't do anything wrong." And that's generally the case if there's a warrant signed by a judge. But in my research I found there are certain ways to avoid that good faith exception. And the good faith exception is when there is absolutely no probable cause. When the probable cause provided is so lacking that a reasonable officer would realize that there's an issue and he still goes forward with it, he's not going to be protected by that exception to the failure of actually having probable cause in the warrant. And the argument that I made to the court in this particular instance was that the officers know that you have this ten day rule and after ten days the warrant is dead. They have to know that once the warrant is dead, providing the same exact information for a dead warrant can't possibly revive it. It's not reasonable to believe that it would. The court agreed and as I said, the evidence was suppressed. And that wasn't the end of things, of course, because when a court suppresses evidence, the state is given an option of they have 30 days from the time of judgement to file an appeal and have the appellate court, in this instance the District Court of Appeal, review the facts, review the transcript from the hearing, and review the arguments from the case law from the lawyers, and determine if the court got it right. So in that instance I was involved in an appeal. The state appealed, we were lucky enough to win that appeal as well, so the District Court affirmed the trial court's ruling and in the end the case was dismissed by the state. Not only was it dismissed, because my client met certain standards - he'd never been convicted of a crime before in the state of Florida, you can have cases expunged, meaning all record of it is destroyed. And because my client wasn't convicted of anything in this particular instance, I had the case completely expunged. I will tell you that that doesn't happen every single time, but it's never gonna happen if somebody doesn't pick up that search warrant and pick up that affidavit and start doing the research and investigating that they need to to find out where there's a weakness. I think in this particular case, there's a lot of folks who were arrested for child pornography during a particular sting and I think there was a rush to just try to get as many folks as they could in. I think there were some mistakes in law enforcement in putting this affidavit and case together and that's something that ended up working to have this case dismissed.  B: So, just importantly, if for some reason you are - a person is arrested, they need to really contact an experienced attorney like you guys' firm there to make sure that you're looking at all of that evidence or not all the evidence but yeah all the evidence that they are submitting to the courts, correct? M: Well, it's exactly correct. The idea is, just like people don;t think every single doctor is the same, not every lawyer is the same. There's people have varying levels of competence, varying levels of experience. Some people are very very good and some people may not be so good. I believe that probably every single person who gets arrested, everyone wants the best lawyer that they can have. That comes to doing some research and finding out what lawyer it is that you think you need and what particular areas of law that you need and whether or not he has the experience, the capability, and the confidence to handle the case for you. Something that helps that out is what the State of Florida has called Board Certification. My firm, we have three partners who are Board Certified in Criminal Trial Law and that means that we are experts in Criminal Law. We're the only folks who get to say we're experts, and we're the only folks who get to advertise as specialists in a particular area of the law, which is criminal law.  B: Alright, Mike, in closing what kind of advice would you give someone if the authorities show up at their house with a search warrant? M: The advice is cooperate. I don't mean sit down and have a conversation and tell this person your life story who is searching your house. What I mean is get out of the way because they are authorized by the law even if the warrant is bad, if the officers come in and they have a warrant to search, they're going to at least get to do that search. Fighting them and stopping them isn't going to be very helpful. Get out of the way. Pick up the phone. Call a lawyer and find out what needs to be done to defend you if something is going to develop. I will tell you that the worst thing that happens is when the search warrant is executed the officers may want to have a conversation with a person and that's probably the most vulnerable time a person has. He's caught off guard, he doesn't really know what to expect, and he just starts talking and answering questions which he may think is helping him which later turn out to hurt him.  B: Alright. Anything else, Mike? M: No, thank you very much. B: You've been listening to theFloridaDefense.com podcast sponsored by the Bauer Crider & Parry Law Firm.     

Brad: Last week we talked about search warrants. We're going to continue that conversation today, but do you want to give us a brief recap of what we talked about? Michael: Sure, the search warrants come up when the government is going to execute what's called a search on a person's property or home. The term search is a very important legal term. It's only considered a search if a person's reasonable expectation of privacy has been implicated. We talked last week about the reasonable expectation of privacy a person in their home is considered to have a much higher expectation of privacy than they would when they're having a conversation with somebody on a park bench in a crowded park where people are walking by. Same thing with a person doing something kind of in plain view within the confines of their vehicle that has windows all around it. So that is the time where we have to determine whether or not there is actually a search. If a search happened, then the other question is, "was there probable cause?" and probable cause, which we defined last week, essentially a fair probability that contraband or evidence of a crime will be found inside of the car. The officer is going to have to have specific facts that he can point to, observations that he can provide to the court that is reviewing the search to determine that he did have probable cause. And then finally, if the officer has that, he would have to get a warrant to execute a search. Meaning he would have to petition the court, show the court the affidavit of probable cause and provide those facts to the court, the court can make the determination that he has the warrant to execute a search on the property. There are some exceptions to that requirement which we talked about last week and that brings us to a whole other area of questions. What happens if a person is subject to a search and the officer doesn't have probable cause or a warrant? That's something that we can discuss during our next conversation. B:Real quick, Mike, you guys practice criminal defense law in Penniless County, Pasco County,  Hillsborough County, you know, the Tampa area. Is this search warrant that you're talking about Florida specific or ? M:That's a good question, actually, because a lot of people know that we've got two types of system. We've got the State System where we have state laws and state courts and then we have the Federal System where we have everything's kind of controlled by the US Constitution. In the State of Florida we have a specific clause in our Constitution called the Conformity Clause. The Conformity Clause means essentially what it says, that whatever decisions made by the US Supreme Court about the 4th Amendment, which covers search and seizure type issues, whatever decisions the US Supreme Court makes, the State Courts will conform their bindings and will adopt, basically, those decisions and we use those as the standard. So anything that we talk about in Florida about search and seizure issues is really gonna have the same exact implication throughout the US. The only time it wouldn't is if there is some new and novel decision made, like a case of first impression that came up for instance in the state that hasn't happened anywhere else. But for the most part, it's exactly the same.   3:56 B: Ok good, well what about, let's talk specifically about search warrants just on computers, computer files, contents on your computer... M: Alright, well the first question that would come up is does a person have a reasonable expectation of privacy for the content of his or her computer. And I think most people would  answer, "Absolutely!" I think if you ask most people if they believe that the programs on their computer, the photographs on their computer, any kind of data files that they have, that they believe that those things are personal and secure and that they expect those things are private from other people's eyes. I think most people would answer with a resounding "yes!" Most people probably have a passcode on their computer. The sole of keeping unauthorized users out and prying eyes out, I would say. So it becomes very interesting with certain types of cases when we're talking about search warrants specifically for computers. Most of the time, people have their computer. Well, I say most of the time, but it used to be maybe a few years ago most people had computers in their home. I think we're getting to a point today where computers are a lot more accessible and easier to carry around that you see that maybe not everyone has a desktop computer anymore. But, still, most of the time people are accessing their computers from someplace where they have some type of wifi connection or some type of data or cable connection. And most of the time what people do on their computer is not open for public view and they absolutely have a reasonable expectation of privacy on their computers. And to get a warrant to search the contents of the computer, the government would have to have some reason. Some reason to provide to the court, a judge, "I'd like to search Mr Smith's computer. Please let me do it." Well, the judge doesn't just say, "Well, do you want to? I'll give you the warrant." The judge says, "I'll let you do it but you've got to provide me some reasons why you should search the computer. And the reasons like we talked about last week are probable cause. The individual who is going to be searched has to be shown, well the officer, I should say, has to explain that there is a  fair probability that evidence of a crime is going to be found on that computer. And the only way the officer is able to do that is to provide details, facts. Here's the most important thing when it comes to any type of search and a search warrant: The facts that are provided to the judge that give him the basis to execute a search on a computer have to be legally gained. Meaning, you can't perform an illegal search on a person's computer and then go to a judge and try to cure it by saying, "hey judge, I found these images on a person's computer. They are illegal and I'd like to search his computer to seize these images." Because if the initial search was illegal, you can't justify or cure an illegal search by getting a warrant. So the way that becomes very interesting is with computers, in particular types of cases where there might be images downloaded onto a computer that are absolutely illegal. That comes up most often in cases involving child pornography. Where individuals will download images that are out there on the internet of folks who obviously have children and it's absolutely illegal. The hard part for law enforcement in knowing who has these images on their computers and how they can get warrants to search these people's computers. Because, obviously most people don't have conversations in a public park about what they have on their computer. And they certainly don't advertise what they have on their computer, especially things of this nature. So the government has found a way, at least in my jurisdiction, has found a way to find out what people have in their computer on certain occasions without it being considered a search. Because that's kind of the catch 22 we have. You can't get into the computer unless you have probable cause and you can't provide probable cause unless you get into the computer to show the judge what the guy has in his computer. So you kind of have a tough situation for law enforcement on occasion. But what has developed in the internet these days and has been developing for a while are these websites called file sharing websites. I may be dating myself a little bit but I remember when I was much younger there was a file sharing website called Napster. Napster was this thing that developed and the music industry was very upset and everyone got upset about it and it was where people would have songs on their computers and you would sign up for this Napster file sharing website where it would allow people to open up the contents of their computer to folks all throughout the internet. You'd type in a search for a song. You'd type in whatever song you were looking for and the search would find a computer that was open and was out there. And it would say, "I found a computer that has it" and it would begin to download or copy the song from another person's computer. That's in a nutshell what file sharing is. People are sharing certain files and they are allowing their computer to be open to the world - to the internet. Well, that same idea of file sharing also occurs in this child pornography world where folks who are looking for these illegal images type in specific searches and they go to these file sharing sites and they search the internet for other computers that have it on their computer and they share these files. They download these files. So what the government has begin to catch onto is that these file sharing sites for a period of time open up their computers and images, believe it or not, can be caught in the transmission between computers over the internet. So what the government has done is through these specific searches, it's kind of like just casting a net out into the internet, and they cast this net out and they look for these specific data components that kind of set an alert. They have a - in the State of Florida there's a specific system designed that looks for specific known images of child pornography. It has become one of these unfortunate stories that some of these images are used time and time and time again and they become known. They become known to law enforcement. Law enforcement even has names of the individuals who are pictured. And what happens is they law enforcement does this search on the internet and it captures these images being transferred from one computer to another computer. And then this computer that the law enforcement officers are using or this program, I should say, alerts them that they have found a known image of child pornography. And they then determine where it is coming from or where it is going to - what the IP address is, which is what every single computer has when they are downloading images. So the question that you have is, well how can they do that? They're basically going into your computer and searching it. And that brings us back to the first major question, "Is that a search?" Because the fact of the matter is if it is a search, it is absolutely illegal. The government can't do it. It can't be supported and anything they find can't be used. But the unique thing about this particular file sharing scenario is that they are opening up their computer to the world and as we talked about last week, when you open up something for the whole world to see or the whole world to come in and view what you have, you do not have a reasonable expectation of privacy. That is not an expectation that society is prepared to recognize as reasonable. If you open up your computer for the whole world to see. Now you might have a subjective expectation of privacy wherein the guy on the computer might not even have a clue what file sharing really is. He might not even know that when he's downloading these images, that he's opening up his computer for other folks to download what he has on his computer. But that doesn't matter because the standard is a reasonable expectation of privacy, meaning both you have to have the expectation and it has to be objectively reasonable to the reasonably prudent individual. And in this situation, file sharing is not recognized as something that is private because you open everything up. So because there is no reasonable expectation of privacy, you cross out that word search and it is not considered a search. And what does that mean? If it's not considered a search, the 4th Amendment is not implicated and you don't need probable cause. And the reason why that is so important is because these officers who are making these searches don't know who they are looking for. They don't know who they're looking for until they get the images. And that's when we start to walk into the actual search warrant for the particular computer. So step one, the officers do this net search for all of these known images of child pornography. And they determine what IP addresses are sharing these images or uploading these images. And when they get that, they then identify the IP address, they look for how many times images have gone to that computer on a particular time period. And after they get that information, they then send a subpoena to the internet service provider. When they send a seeping to the internet service provider, the service provider provides the name of whoever's name is on the account. And when they provide that name, the officers now have enough in their estimation their the number of searches that have been done the number or images that have been downloaded that they can find, to go to a judge to get a warrant to search that person's home. What the officer would have to be able to provide to the judge is the facts that I just articulated, that is "we did this internet search. We found a lot of known images of child pornography going to this particular IP address. We subpoenaed bright house networks. Bright house networks told us who the account holder was and we want to search Jon Smith's home because we've seen on these three months or this many days this many images of child pornography have been downloaded to that computer." At this point, so far they still don't know the identity of the person downloading the images. And why is that? Well, because a lot of people do, in a home, have access to a single computer. All they really know is that this person is an account holder with this IP address. At that point, they go to the judge and they provide that information. All of the information has been obtained legally and the judge makes a determination whether to issue a warrant. And if the judge issues the warrant, then the person must comply when the officers come to the house to search the home. And the warrants are pretty encapsulating when they talk about a search for these types of images. They talk about searching the home, computer, any computer equipment in the home, any data equipment in the home, and the officers execute the warrant and they begin to search all of the data files. And if at that time they find actual images of child pornography on the computer, then that's where the possession of child pornography charge comes and the person gets arrested at that point.  B: Does that also include smart phones?  M: It would. The warrant is to search the location the officer believes the evidence is going to be. So most of the time it is  a home, because most of the time people keep computers - even if they're a laptop - they usually keep them with them or somewhere close to them. And the IP addresses goes to a particular address so the search warrant would authorize whatever the officer has asked for, whatever they can have a reasonable expectation to find evidence on. So that would cover computers, and generally that covers phones, ipads, it even covers playstations and things like that. The important thing to remember about a search warrant is the search warrant is super specific and if something is searched that isn't mentioned in the warrant, that could be a violation of the 4th Amendment and that particular item of evidence might be suppressed if anything is found. So I would say law enforcement, in my experience, is very good at making it as broad as they can while still making it conform with the 4th Amendment.  B:Alright, you want to kind of just give us a recap? M: Sure, so what we were talking about for this period of time is search warrants when it comes to computers. Obviously, the contents on a person's computer are private. Everyone is prepared to recognize that individuals have a reasonable expectation of privacy on the contents of their computer. So how do officers get these images? How do officers find evidence of crime where people are downloading these types of images on their computers if they can't even get into their computer? The one unique scenario that has come up that is used quite a lot in cases that I have had experience with are where people go to these file sharing sites and they open up their harddrive essentially and search other people's hard drives for particular images that they're looking for. And once you open up your hard drive, that expectation of privacy is gone. And if you don't have that expectation of privacy, you don't have a search. If you don't have a search, you don't have a 4th Amendment implication, which means the officers can do it. There's no rule to stop it and the officers then get the information that they need to provide to a judge to get a warrant issued to search an actual computer.

Brad: Intro ... Let's jump into this this morning. We're going to be talking about search warrants in the next few podcasts. So, the first question really is, "When is a search warrant required?" Michael Kenny:Ok, well that's a really good question. You know, we hear things about search warrants being out there and issued and I'm sure a lot of us don't really understand what how many questions are involved when a search warrant comes up. Anytime the government executes a search on a person's property or home or even his person himself, that is considered a search. A search warrant is required in almost all cases unless there's some type of exception. The fourth amendment of the US Constitution has this simple instruction to the government, and it says that folks are not going to be subjected to unreasonable searches and seizures. What case law over the years has helped us understand is that a search is going to be considered a violation by the government or an intrusion by the government into a person's reasonable expectation of privacy. There's some other changes that we've had since then which involves a possessory interest that a person has which is very recent, but in general we're talking about a search, we're talking about the government invading a person's reasonable expectation of privacy. There's two prongs to an expectation of privacy. There's  the person's own expectation, which is considered a subjective expectation of privacy, and then there's the objective expectation - that's where the term reasonable comes from. Meaning an expectation that society or the reasonably prudent man would consider something that he would expect to be private, fair to be considered fair and private. So, you only have a search when a reasonable expectation of privacy is violated. I can give you a quick example. If somebody is in a park, and they are having a conversation out loud and screaming at another person saying, "listen I have a very large quantity of drugs sitting in my car right now and I plan to sell it to someone down the street" Well, there really in that circumstance can't be said that there's a reasonable expectation of privacy in that conversation. Because that conversation is held out in the open in the public in a park where people are walking by at a very high level. If you convert that to a person having a conversation in their home and officers are using high powered recording devices to capture that conversation, in that instance you would say that there is, without a doubt, a reasonable expectation of privacy in that conversation.  This person is having a conversation in the comfort and seclusion of their home, not in the open park. In that second set of circumstances, if the officers are using a recording device to capture that, that most certainly would be considered a search. Whereas the conversation in the park is not a search. So the first question you have to ask yourself is, "Is there a search? Is there some intrusion on a person's reasonable expectation of privacy?" The second question after that is asked is, "Is there probable cause to execute the search?" And probable cause with regard to a search warrant, has been defined in a lot of different ways, but the basic meaning is a fair probability that contraband or evidence of a crime will be found. And the officer would have to have sufficient data, sufficient facts to rely upon to come to that conclusion that evidence or contraband will be found in a particular location. That standard is one of the most important standards, because without the probable cause, you don't get to do the search. It doesn't matter whether you might have a warrant somehow erroneously issued, you can't do a search without probable cause. Every search that happens has to have both probable cause and a warrant. And the only time that you don't need a warrant is if there is some exception to the warrant requirement. So another example is someone in a car. Someone driving by in a car if they have some clearly illicit contraband sitting in the vehicle seat and an officer happens to walk by and notices the contraband right there in plain view, then it is not considered a search because the person is driving his car on the open road with these big clear windows and society would not be prepared to recognize that that person would have a legitimate reasonable expectation of privacy. So the officer sees the item. And when he sees the item, he would develop probable cause to execute a search. And because it is a vehicle there is an actual exception to the warrant requirement called the vehicle exception. And in those circumstances the court has said an officer would not have to stop after he sees the contraband in the vehicle and go and find a magistrate or a judge to issue a warrant and then come back and find the vehicle. The courts have said the officer can execute the search immediately when they develop probable cause that there's evidence of crime inside the vehicle.  6:17 B: The last few weeks we talked about DUI's is the vehicle expectation is that involved in a DUI? M: There's always a lower expectation of privacy that folks have in their vehicle, but there are searches that happen when people are arrested for a DUI. And that usually happens when the person is taken into custody, and is secured and obviously their body is searched, and the officers do that to determine if they have any weapons, and sometimes  there's something in the pocket that might be another illegal substance which might be another charge separate from a DUI charge, like a drug possession charge. And it used to be some years ago that officers could search the entire interior of the car if a person was arrested. The used to be an exception, or there still is an exception, called the search incident to arrest. And the reason why courts came up with that exception to the warrant requirement is because they were immediately concerned with the safety of the law enforcement officers. What the idea behind it is if a person is being taken into custody, the officer would be permitted to search the area within the person's reach. This is to protect the officers and make sure there's no weapons that the person might be able to get as he's being taken into custody, or even some items of evidence that might be destroyed - along those lines. However, the court began to revisit that search incident to arrest requirement when it comes to vehicles because in most instances when a person is arrested for a DUI case, for instance, involving a vehicle, they're taken out of their vehicle, they're handcuffed out of their vehicle, and then they're secured in the back of a police cruiser. That notion that the vehicle needs to be searched to prevent that person from getting a weapon or getting some item of evidence is kind of nonexistent. That person sitting in the back of a police cruiser and there's no way that he's going to be able to get his hands on anything inside of the car. So, the courts have revisited that search exception and said that you can't search the interior of the car when a person is being arrested. Now there might be some exceptions. There might be some other reasons, but the simple catchall "I arrested them and now I can search the car and maybe find some evidence of other crimes" no longer exists.  8:52 B: ok, You and I've talked on the phone about a terry stop, correct? Can you explain a little bit on a terry stop - t e r r y stop, right? M: Right, so a terry stop, we were talking about probable cause and probable cause is used in two different scenarios. There's probable cause for a search and then there's probable cause for an arrest. They're both the same exact level. They require the same amount of facts and circumstances to be provided. A probable cause for a search is the officer provides information based on his observations in totality of the circumstances that would allow the court to believe that there is a fair probability that items of evidence would be found in a certain place. Probable cause for an arrest is the officer believes under the facts and circumstances of his involvement, of what he's observed, he can point to reasonable facts to believe that  a crime has been committed and he would execute an arrest on this person. There's a lower standard called reasonable suspicion. Reasonable suspicion comes up when an officer sees something that looks like there might be something criminal going on but he's not quite sure. He doesn't have enough facts to articulate, for instance actually observing people involved in criminal activity per say, but it might be a situation where a person is hanging out outside a business at a late hour. Maybe walking through like he's casing the area. Maybe some unusual movements near the entrance area of a store. The officer at that point in time may not be able to articulate that this person is committing a burglary of a store. And he may not have enough evidence to say this person has on his person tools used to commit a burglary. He doesn't have enough for that yet, but courts have said there might be enough for what's called a reasonable suspicion. If the officer has reasonable suspicion, he can execute what's called a terry stop, which is a short detainment so the officer can determine whether or not a crime has occurred, is occurring, or is about to occur. That give the officers a little bit of time to investigate whether or not there is something that's about to happen. As far as police contact, there's two types of contact folks have - really three types of contact, in the end when a person gets arrested. The first type is a consensual encounter, and that's when an officer is walking down the street and waves to you and says hello, says, "hey I'd like to have a conversation with you. Would you like to have a conversation with me?" And that person sits and talks to the officer and maybe during that point in the conversation the officer asks some questions and the person without thinking it through finds himself implicating himself in a crime. That involvement between the officer and the person is consensual. There was no reasonable suspicion that a crime was going on, and the officer didn't need any reasonable suspicion, he just encountered someone. The next level up is called a terry stop. And we get these definitions of a stop and these levels of encounter from the US Supreme Court case The Terry Case, which talks about the terry stop and why the officer would be allowed to detain a person for a short period of time to make this inquiry in this investigation. And after the terry stop, if the officer believes after communicating with this person and determines that there's enough for an arrest or maybe determines there's enough for an actual search, that next level is the probable cause. And that's the probable cause for the search or the probable cause for the arrest of the person.  B: Alright, Mike you want to kind of give us just an overall recap? M: Sure, so the question that comes up, "when is a search warrant required?" A search warrant is required anytime the officers are going to - I say officers, any agent of the government - is going to violate or implicate  a person's reasonable expectation of privacy. Anytime that happens, there is going to be a requirement of probable cause and in most cases, there is going to be a requirement of a search warrant. There are some cases where courts have allowed there to be an exception to the warrant requirement, but those are actual specific exceptions. There's a search incident to arrest exception, for example, where a person is being arrested and the officer can search the person or the area around the person within his reach. That does not require a search warrant. There is the vehicle exception to a search warrant where an officer, if he determines there's probable cause that there's evidence of a crime inside the vehicle, he can open the doors and search the vehicle. One specific example of that is if an officer pulls a person over for say speeding and when the person rolls down the window to talk to the officer and the officer detects the distinct odor of recently smoked marijuana, that officer has now been provided with probable cause to search the vehicle. He doesn't need to see the marijuana. He doesn't need to have anyone mention there's marijuana in the car. If he smells it, he can execute a search of the vehicle to determine whether or not the evidence of the crime is still inside.

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About the Bauer, Crider & Parry Firm Podcast #2

Brad: Alright, welcome to the Bauer, Crider, and Perry criminal defense podcast. We are speaking to attorney, Mike Kenny.        Mike: Hello?       Brad: Alright, how are you doing this morning, Mike?       Mike: I'm doing really well. How are you?       B: Good. Good, well you've had an interesting case, um, a few weeks back, um that we want to go ahead and talk about this morning, correct?       M: Sure.        B: Tell us a little bit about that.       M: Well, in Florida there's this statute called a sexting statute, or the texting statute, and that statute was enacted, I'm sure when I say the word "sexting" everyone probably has an image or an idea of what we are talking about. But that statute was particularly put into place because of this, I guess ostensibly there was a lot of concern about young folks sending pictures that obviously would quite frankly end up being very regrettable pictures in the future. You know, pictures of nudity to other young people, and in certain cases they get exploited and lives get turned upside down. So, before the sexting statute was enacted, and that was around 2011,  the only crimes that would capture that type of act, which is taking a picture, a sexually related picture, or a nude sexual picture and send it to another individual, the only charge available would be an exposure of sexual organs charge or a lewd or lascivious exhibition charges, and those charges can be life changing. If someone is charged with a lewd or lascivious exhibition, it's a felony, and it's something that might require a person to spend the rest of their life being marked as someone with a sex offense, and that's just not something that folks want in this world, especially when we're talking about teenagers.  So the Florida Legislature, in an effort to try to circumvent that unfortunate result decided to make a law applicable to teens only, or teens or minors only and the idea was that anyone that was caught sending a sext message, which is a message of a sexually provocative nature, or sexually related nature to another individual, and if it is a juvenile, for a first time offense, it would almost be like a noncriminal event.  You would pay a fine and have to do some community service.  So the intent was, I would say the intent was good. The intent was not to ruin the lives of kids who probably don't always have the benefit of thinking ahead. And it was a laudable attempt. But what happened was, when they wrote the statute, what wasn't considered was where they were going to be able to prosecute those types of cases.  So in the state of Florida, juvenile cases only have two places they can be prosecuted.  There's two types of courts. There's the circuit court, and the circuit court is the top trial court in the state of Florida. Then you have the county court, and that's kind of the lower trial court in the state of Florida.  For all juvenile crimes, the only jurisdiction, no matter what the crime is whether felony or a misdemeanor, is circuit court that would actually be in juvenile court. And those cases actually start off in ray or 3:41 in the interest of and it has the child's name and all that stuff is confidential.  County court is the only other court where there is a jurisdiction on a juvenile charge, but that's involving traffic violations only.  So, for instance, if a sixteen year old is driving and he's speeding and he gets a ticket and he wants to contest that ticket, he would contest that ticket in county court like any other adult would contest their ticket. That's the only time a juvenile can be in county court is if he's dealing with a traffic offense, whether it be a civil infraction, or even a DUI charge, a criminal traffic charge.    4:20 So the way this statute was written, however, it expressly tells you that a sexting first offense is not a crime.  So if it's not a crime, the problem is the circuit court, which handles all juvenile criminal matters cannot prosecute the case because it's not a criminal act.  If it's not a criminal act then the circuit court does not have jurisdiction. The other issue that comes up is the only other case it can be prosecuted in is county court, and because it is not a traffic offense, the county court does not have any jurisdiction.  And it's just the weird thing about cases in general, a court has to be granted jurisdiction by the state in order to have jurisdiction to enforce the law. And in this particular instance, although it was a well intended statute, the way it was written made it impossible to enforce. 5:21 So what I had in my particular case, a young girl was involved in a sexting charge and she received a notice to appear in county court and it was prosecuted almost as if it was like a county ordinance violation. I filed a motion to dismiss with the county court  judge explaining what the jurisdiction is of the county court and this jurisdiction is of circuit court, and how this sexting offense doesn't qualify for either.  The judge agreed and she dismissed the charge.   5:56 B: I've got kind of a quick question on the sexting.  Is there a difference on if it's text only or image only?   M: It doesn't differentiate between a text or an image.  ...The statute basically says sexting occurs is when someone shares nude or sexually explicit images with others through the use of cell phones, the internet, or any other device capable of transferring data.  It's always going to be an image but there might be some statements along with that or something that makes it sexually explicit.   B: And it doesn't have to be just a text message, it could be social media, email?   M: Correct. In this particular instance that I was involved in, I don't want to get into the details too much, but it actually involved the internet.   B: So the first offense is not a crime?   M: The first offense is not a crime.   B: The second one is?   M: The second one would be. And again, it's designed and is prosecuted not the same way as the serious felony of exposure of sexual organ charge or lewd or lascivious exhibition.  It's a little bit less serious and obviously the intent behind that is to not throw a bunch of kids in this monicker of being sexual offenders.  That was the purpose behind the statute.   7:38 B: And just to be clear, a minor is 18 or under correct?  Or under 18?   M:  Under 18.   B: Well, good. Anything else on that, Mike?   M: No, I think that the, quite frankly it was almost unfortunate. As a lawyer, you have a duty to represent your client and protect your client no matter what.  So, when you do the research and say, "well, that was a good intent and I appreciate where the legislature is coming from, but I've got to protect my client and there's just no jurisdiction to prosecute so it was dismissed. The unfortunate outcome of that is that leaves law enforcement with no other tools but the old tools that they had that this statute was enacted to prevent or go around. So it's kind of unfortunate and I'm hoping the legislature takes some effort to amend that statute to make it at least enforceable so we don't have 15 and 16 year olds who make some silly mistakes in their lives being prosecuted as sexual offenders.   B: Right, for the rest of their lives, right?   M: There are certain things that can happen that even though it's a juvenile crime, unfortunately.   8:57 (Lead out by Brad...)   1327 total words       Part 2   B: Michael you are a partner in the firm, is that correct?   M: That is correct.   B: Tell us a little about Bauer, Crider & Parry   M: Well, it's hard for me to talk about Bauer, Crider & Parry without kind of getting a little excited about it, to be quite honest with you.  I was first introduced to that firm when I was a prosecutor. I was a prosecutor for 5 1/2 years and I met one of the partners of the firm and we tried quite a few cases together. One of the things that you learn really quickly as a prosecutor is who the good lawyers are.   B: So you were on the other side of the table.   M: I was on the other side and you learn quickly who the good lawyers are and you begin to wonder about what makes a good lawyer and what makes it a good firm. I did some research in looking into the firm and eventually I was lucky enough to start working here. Bauer, Crider, & Perry is a firm that consists of five lawyers. We have Ronny Cryder and Robert Bauer, those two gentlemen are the founding partners of the firm. Then we have Curtis Crider and David Perry. And then finally you have me, Michael Kenny.  This firm has been around since 1989. They prosecute every single type of criminal matter that is prosecutable in the state of Florida. And that is the most unique thing about it is it's the only thing that we do. Meaning, you might go to other firms and other firms maybe do personal injury law, maybe other firms do some type of divorce law or family law. And that's good, but what we have learned, and what these other folks have learned before I started working here is that you do one thing great in life.  if you do one thing great, then stick to what you do great, and that's all we do.  All we do is criminal defense.  The unique thing about the firm is that each lawyer has his own pretty much area of practice.  When I say area of practice, we all cover the entire state of Florida, but there are some areas that we are more keen on practicing in.  So Curtis Cryer has a good presence in a certain area of the state, David Perry has a good presence in another area, and Ronny has a presence, Robert has a presence, and I have a presence in different areas. And that helps us work together to collectively handle criminal defense for the entire state.   2:48 B:Ok So you are more geographically than actual practice area wise?   M: Sure because I mean to be quite honest with you, when you have a firm that has different office locations, you're certainly not going to be wanting to drive or handle matters that are 10 hours away on a regular basis for two reasons.  One, it's a costly endeavor and two, you might not be as familiar in a far off area as you might be in where you frequently travel.   B: What all locations do you have?   3:26 M: Our main office is in Clearwater, Florida.  And then we have an office Paso County, in Port Richey. We have an office in Trinity, which is also in Paso County, which is where I was a prosecutor. We have an office in Hillsborough County which is directly across the street from the criminal courthouse there.  And we travel to other areas as well. Brooksville is very close to where our Paso County office is so I do a lot of work in Brooksville.    B: But you cover the entire state of Florida?   M: We do.  There are some moments where it makes sense between the client and the firm to take on a case maybe in an area that is a lot further away from where we normally would practice.  But those come on a case by case basis.  For the most part, the counties that we cover on a regular and consistent basis are Hillsborough County, Pasco County, Pinellas County, and Hernando County.   B: OK. 4:29 The website's Floridadefense.com correct?   M: Correct.   B: And how long have you been with the firm, Mike?   M: I've been since I left the State's Attorney's Office in 2009, I've been with the firm ever since then. So we're going on seven years almost.   B: Who was the first attorney that you met from the firm?   M: Curtis Cryder   B: ok so when you left as a prosecutor you ended up somewhat interviewing with them and hitting it off with those guys, huh?   M: You got it. I was a prosecutor for 5 1/2 years and there comes a point when some prosecutors have an idea that they might want to move out of the state attorney's office and there was really only one place that I would consider working and that was here.   B: Tell me Mike, why criminal defense? What pulls you in that direction?   M: That's a pretty good question. You kind of learn when you're going to law school what subjects you like, what subject matters you like, and I think I learned early on in law school that I enjoyed trails, I enjoyed trying cases. While I was in law school, I was on the trial team at Stetson University.  That's a school that's pretty well known for preparing litigators - the people that try cases. The one thing that gets tried, the one type of law that gets tried probably more often than any other is criminal law. Those cases are more likely to go to trial than probably any other type of law. So when I graduated law school, I became a prosecutor. The reason why I became a prosecutor is those guys are always in trial and I began to learn very quickly that for me it was a comfortable fit. I picked it up pretty well. Criminal law is something that I know generally well and I was able to succeed in trying cases.  The unique thing is that when I left, a person would ask me why did you like criminal law as a prosecutor and well, I liked it because I liked trying cases. It was an enjoyable experience. I thought I was serving the people very well. I thought I was doing what I thought was being the good guy all the time.  And it's funny, because when you leave and you kind of get on the other side and you do criminal defense, you're sort of like occasionally you have an eye opening experience. And the eye opening experience that I had leaving and doing criminal defense is that these people that I would see that would come in to hire me to represent them on criminal matters weren't just names on a file. As a prosecutor you kind of see names on a file. You see names on a file, rap sheets, and police reports.  You don't get that experience of the person.  As a defense attorney, you see this gentleman walk in and he may walk in with his wife, he may walk in with his family. But you begin to know the person and you learn very quickly that sometimes people find themselves in situations whether through faults of their own or not. We make mistakes and we try not to make these mistakes these permanent life altering mistakes. And you get a chance now as a defense attorney to help a person remove themselves from this bad life choice and you get to help them succeed as a human being.  So now I can tell you that I like criminal law because I really believe it helps the folks that come to this firm.  I believe it changes lives.     B: In working on the defense side, there's a more personal element, like you said.    M: No doubt about it. No doubt about it.   B: I think two unique things I wanted to mention, and one is you, specifically, Mike.  You worked both sides. You were a prosecutor, right? You went up against Bauer Crider & Parry.  And now you're on the other side. So can you maybe discuss a little bit on the difference in those two and which one you like better? I'm guessing it's the defense side.   8:34 M:Yeah, well, I thought being a prosecutor was one of the most rewarding jobs that I ever had. So I definitely enjoyed it. The difference between the two? It's really not different so much in the fact that the law is exactly the same. I know that any good lawyer, whether it be a prosecutor or defense lawyer, always envisions the other side's case.  Always worries about the argument that the other side is going to present, or the objection the other side is going to make when you're trying to get certain evidence admitted. So, I think it was very easy to make that transition from being a prosecutor to being a defense attorney. But I would say the differences that you typically experience are as a prosecutor it was very easy to wear the white hat and say, " I'm out there saving the day." and sometimes you overlook things. As a criminal defense attorney, it's now a decision you make has an impact on one individual. His good name may be destroyed, his liberty being taken from him, or the ultimate penalty if we have a first degree murder case. And that sits on your shoulders, I would say, more as a defense attorney than anything sat  as a prosecutor.  As a prosecutor, if things didn't go your way, you'd say, " well, I'll get him next time." As  a defense attorney, if things don't go the way you'd like for your client,  it has a very personal impact.   B: It's a heavier weight.   M: Absolutely.   B: I don't want to really pick on your competitors, but one thing that also makes you guys unique is that you say you're trial lawyers - that you're not afraid to go to trial.  Are there a lot of other criminal defense attorneys that never go to trial?   M: I think that, speaking from the perspective of a prosecutor, prosecutors begin to learn what lawyers are good trial lawyers, and what lawyers are willing to go bat for their client and fight.  And I think that does have an impact on how cases are prosecuted.  I think it does have an impact on how cases are resolved.  So there are some lawyers who probably don't like to try cases as much, and don't get me wrong, I can certainly understand how the known quantity, meaning if a prosecutor makes an offer, how that known quantity is a lot easier to get your head around than the unknown, which is what happens if you go to trial and lose. But there are defense lawyers who probably have a reputation for not trying cases as much or not wanting to try cases as much, and I believe that does have an impact on the outcome.  People learn that. People know about that. People being the ones that you're up against. It's important that they recognize that while you want to work with them to get the best result for your client, if things don't tend to work out, you want them to recognize that you are still a lawyer, and that you'll try the case.   B: I think that's good. Do you think that sometimes it might scare the client when you tell them you're a trial lawyer?  They're going, "you mean we've got to go to trial?"    M: I think there's a lot of folks who come in and when they speak to you and say, " hey i just want this thing resolved. I want to put this thing behind me. I want the best result." And you learn early on which cases are ones that are likely headed down the path of trial or not. But yeah, there are some clients that are definitely afraid of it and they should be. There are certain things about a trial that are just completely beyond your control. So that's understandable, but our job is to recognize, when you look at a case what is the best way to handle that case? When a person hires a lawyer, they're hiring a lawyer for two reasons; one, for him to defend them in court, but the other reason is for the advice.  A lawyer is not just an advocate, he's an advisor and he explains what some options might be and maybe what some of the best options might be.   B:Alright, well anything else that you want to add?   M: Well, the unique thing about our firm is that four out of the five lawyers in our firm are board certified criminal trial lawyers. I'd say that's unique because there's very few criminal trial lawyers in the entire state of Florida - there's less than 400. We're talking 380 some odd lawyers out of nearly 100,000 total lawyers and to have four of them under one roof is I would venture to say we might be the only firm that has that. That's a rare occurrence and to give you an idea, a board certified criminal trial lawyer are the only lawyers who can advertise themselves or introduce themselves as experts. The Florida Bar has very strict rules on how a lawyer is to describe himself and in order to be an expert in criminal trial, you have to have tried so many cases, you have to pass a peer review by both lawyers and judges. Lawyers that you may have had trials with. You have to pass a specific examination beyond just the entry bar examination. You have to possess the requisite amount of hours of continuing legal education. And you have to demonstrate your competence in the area that shows that you are an expert in the field. So it's a rare and distinguishing trait that lawyers work very hard to attain and I'm always amazed that we've got four under the same roof!    B: You said 380 in Florida out of 100,000  total lawyers and then 4 out of 5 of the attorneys that are partners there at the firm are board certified. Wow, that's great!