Tempting as It May Be, You Don't Get to Delegate Parenting to the Cops.

A.J.R. v. State, 2D15-3226, 2D15-3359, Dec. 9, 2016

Held:  Police officer is not authorized to take a child into custody for truancy when in the presence of his parent or guardian.

Discussion:  The case hinges on interpreting section 948.13(1)(b), which says that a child may be taken into custody “when the officer has reasonable grounds to believe that the child is absent from school without authorization or is suspended or expelled and is not in the presence of his parent or legal guardian, for the purpose of delivering the child without unreasonable delay to the appropriate school system site.”

Here the juvenile’s mother had called the police because her son wouldn’t go to school, and the officer told him he had to either go to school or a truancy center, and, apparently not finding either option appealing, the juvenile took off running, at which point the officer chased him, they had an altercation, and he was arrested for resisting without violence.  Resisting without violence requires that the officer be engaged in the lawful execution of a legal duty, so the legal question was whether the officer had the right to take the juvenile into custody in the first place.

No, said the Second, because, in analyzing the entire statutory scheme of truancy law, they see it as generally involving engaging the parents and returning children to their parents when they aren’t in school.  Here, the child was already with his parent.  The Second also talks about the “community caretaker” function of policing, which, for children, generally involves returning them to their parents, not taking them away from their parents.  An officer’s duty ends when a child is reunited with their parents.

The State argued, but the Court rejected, the “last antecedent” principle of statutory construction, where the “and is not in the presence of his parent” language would modify only “is suspended or expelled” and not “is absent from school without authorization”.  They said that the last antecedent principle will not be applied when an alternative construction is more reasonable, which, here, it is.

My Thoughts:  Makes sense to me.  Police officers should be solving or stopping crime, not taking custody of kids when they aren’t doing what their parents want them to do.

Don't Do Drugs.  If You Do Drugs, Don't Leave Them In Your Car.  If You Leave Them In Your Car, Hide Them.

State v. Damien Ross, 2D15-3682, Dec. 9, 2016

Held:  When drugs are in plain view through window of parked car, police are authorized to search the car without a warrant, even if there are no exigent circumstances.

Discussion:  The defendant fled from the police and the located the defendant inside a home and the car parked on the lawn.  After the defendant was arrested, an officer looked through the window of the car and saw drugs inside.  Without a warrant, police searched the car and found more drugs.  The trial court granted a motion to suppress, but the Second reversed.  They say that the automobile exception to the Fourth Amendment warrant requirement applies, and they interpret that exception as permitting the search of a readily mobile vehicle when the police have probable cause to believe it contains contraband, which they did once they looked through the window.  They rely heavily on their prior decision in State v. Green, 943 So.2d 1004 (Fla. 2d DCA 2006) for this conclusion.  That case found that there is automatic probable cause to search a car when police see contraband in plain view inside the car.

According to the Second, the trial court granted the motion to suppress based on a belief that “something more” happened between when the defendant was arrested and the drugs were seen, due at least in part to conflicting testimony between officers as to whether the windows were up or down.  But this is not enough, says the Second, because the trial court made no findings as to what the “something more” was and did not find that the officer who testified he saw the drugs lacked credibility.

My Thoughts:  As the Second describes the case, this is certainly the right result under Green.  I am skeptical that the automobile exception is as broad as the Second has found.  It makes sense if the car is capable of being driven away, but if the police have the keys (as in Green) or have the driver in custody (as in this case) it doesn’t seem that there is any real justification for lessening the normal Fourth Amendment warrant requirements.  However, there is certainly an argument to be made that if you leave your drugs in plain view in a car, you don’t have much to complain about if someone finds them and takes them, be it police officer or fellow aficionado.

The subtext of the opinion is that the trial judge didn’t believe the officer’s version of what happened, which does seem facially implausible based on the limited description in the opinioin.  The lesson as a practitioner is if you manage to get a judge to agree with you on officer credibility issues, you have to insulate those findings on appeal by having the Court make specific findings regarding why the officer was not credible, what the judge concluded based on the conflicts in the evidence, etc..  No appellate court would ever disturb a trial court’s bare finding that it didn’t believe a defendant, but all’s not fair in love and criminal defense, and if you don’t believe a police version of events you have to say why and say it thoroughly.

A Quartet of Pushbacks Against 3.850 Summary Denials.

Marshall Vaughan v.State, 5D16-2426, Dec. 9, 2016

Held:  Order on 3.850 must address an affidavit from the victim stating that she fabricated incident.

Discussion:  Defendant was convicted of felony battery, and filed a 3.850 with an affidavit from victim saying she fabricated everything and defendant never put his hands on her. The trial court summarily denied without addressing this affidavit.  This was error, and case remanded for trial court to determine whether evidentiary hearing required.

My thoughts:  Why not just remand for an evidentiary hearing?  Considering standard is that affidavit must be taken as true unless refuted by other record evidence, and victim’s affidavit that crime that police didn’t witness is pretty much automatically sufficient for evidentiary hearing, seems like a waste of time to not just remand for hearing.  I do a lot of 3.850’s and I generally feel like judges are way too loathe to just have an evidentiary hearing.

Jude Lahens v. State, 5D15-2569, Dec. 2, 2016

Held:  Error to summarily deny 3.850 because: 1) can raise claim in 3.850 even if could have been fundamental error on direct appeal; 2) counsel ineffective for failing to seek to admit defendant’s Stand Your Ground testimony despite explicit hearsay exception, 90.803(22), for such testimony; and 3) justifiable use of force instruction was not supported by evidence as to victim.

My thoughts:  Not a ton of facts here, but for appellate court to say trial court wrong to summarily deny three separate 3.850 claims is unusual and signals they think his claims have merit.  This guy needs a lawyer.

Brett Fournier v. State, 5D16-2329, Dec. 2, 2016

Held:  Error to summarily deny 3.850 claim that counsel failed to convey defendant’s acceptance of plea offer to State.

Discussion:  3.850 alleged defendant had received a ten-year plea offer, and told his lawyer he was accepting it, but lawyer never told the prosecutor this before the State revoked the offer.  He alleged if counsel had conveyed his acceptance, State wouldn’t have revoked offer and court would have accepted it, and he would have a lower sentence than he does have.  This was a facially sufficient post-conviction motion.

My thoughts;  Seems like a no-brainer.  If you’re denying a 3.850 motion, that means you are accepting the facts the defendant puts forth and saying they wouldn’t warrant relief even if proven.  The duties of a lawyer don’t get much more basic than facilitating the acceptance of a plea offer that has been made and the defendant wants to take.

Dylan Harris v. State, 5D16-2888, Dec. 2, 2016

Held:  Error to summarily deny 3.850 claim that counsel didn’t inform him of five-year plea offer.

Discussion:  3.850 alleged prosecutor offered five years and his lawyer didn’t tell him about it.  He alleged the Alcorn factors (he would have taken offer, State wouldn’t have withdrawn it, court would have accepted it, and sentence would have been lower than ultimate sentence imposed).  The State filed a response saying that they never made a five year offer, and the trial court summarily denied.  This was error because the State’s claim was not record support that the offer was never made, nor did they cite any such record support.  “Documents prepared to refute claims in a postconviction motion are not substitutes for an evidentiary hearing.”

My thoughts:  Gee, I wonder what’s going to happen at this evidentiary hearing.  Gonna be quite the credibility contest between the defendant and the prosecutor. 

Do You Know How Fast You Were Going?  No?  Well, Uh, Me Neither, But I Know It Was Too Fast, and That's All I Need to Know.

Galvin Gallardo v.State, 5D16-1399, Dec. 2, 2016

Held:  Lawful to stop someone for speeding based on officer’s visual observation of speeding without independent proof.

Discussion:  The officer said she saw the defendant going approximately sixty miles per hour in a forty-mile-per-hour speed zone.  Visual observations are enough and do not require independent proof like a radar gun.  The Fifth distinguished its own opinion in DHSMV v. Roberts, 938 So.2d 513 (Fla. 5^th DCA 2006) on the grounds that there all they had was an affidavit saying the officer had seen the defendant speeding, whereas here there were details as to the officer’s vantage point and opportunity to see the defendant speeding.

My thoughts:  If the officer is credible and the speeding is obvious, I don’t see any reason why they shouldn’t be able to stop someone for speeding even if they don’t have a radar gun or aren’t themselves driving and so can’t do a speedometer calibration.