criminal defense attorney

March 31, 2019

South Florida Defense Attorney’s Take: When One Defendant’s Trash is a Prosecutor’s Treasure

By The Law Offices of Richard Ansara, P.A.

The saying goes that one man’s trash is the next man’s treasure, basically meaning that we all place different value on material goods. But in the case of a South Florida defense attorney, it’s more likely to refer to the fact that you’re literal trash may be the treasure of a prosecutor seeking to put you behind bars.

With the proliferation of DNA evidence as key to prosecutions, digging through a suspect’s trash has become a growing source of evidence for many state and federal attorneys. Generally speaking, unlike the contents of your home or even a DNA test of your own bodily fluids, once your trash is carried to the garbage for disposal, it becomes fair game for law enforcement authorities to access – without a warrant. As established in the 1978 federal case of U.S. v. Crowell by the U.S. Court of Appeals for the Fourth Circuit, you have no reasonable expectation of privacy per the Fourth Amendment for the garbage you place outside for collection. In fact, so-called “trash pulls” have become a veritable treasure trove for some narcotics units in Florida. In some cases, it even becomes the basis for securing a search warrant on your actual home.

However, it’s not unheard of for police agencies to get too hasty in their quest to gather evidence sufficient for probable cause to secure a warrant to fail to obtain adequate evidence prior to requesting that warrant. For example, simply finding cocaine residue or marijuana seeds in the bottom of a trash bin may in fact be insufficient, thus leading to an affidavit that is deficient for the warrant that is ultimately signed. Based on the fruit of the poisonous tree doctrine, that could mean everything that is found thereafter is inadmissible (if your criminal defense lawyer files a motion to suppress) – and may result in an entire case being tossed. Continue reading

March 25, 2019

Florida Criminal Defense Lawyer: When is Case Delay Worthy of Dismissal?

By The Law Offices of Richard Ansara, P.A.

If you are accused of a crime in Fort Lauderdale, you are guaranteed the right to a speedy trial. That means that criminal cases can be successfully dismissed if there are prosecutorial delays that violate a defendant’s due process right to a speedy trial. But what is the exact period of time that triggers a violation of this due process right? Your Fort Lauderdale criminal defense attorney should closely examine the facts of your case to ascertain whether a motion to dismiss under a due process argument makes sense.

Generally, your criminal defense attorney will need to prove one’s defense is compromised by the delay and the prosecutor had not good reason justifying the delay OR that the prosecution has been delayed beyond specified limits.

There are two basic types of speedy trial rights for Florida criminal defendants.

Statutory speedy trial. These are afforded according to Rule 3.191 of the Florida Rules of Criminal Procedure. These require one’s trial takes place within a very specific time window – 90 days for a misdemeanor and 175 days for a felony.
State/federal constitutional protection under the Sixth Amendment. These provide for a speedy trial even if your statutory remedy er state law has been waived, effectively mandating due process protections.

Your Fort Lauderdale criminal defense team may well advise you NOT to seek a speedy trial; that may not be in your best interests, particularly in complex felony cases where the stakes are high, testimony is conflicting, discovery is extensive and expert witness testimony is warranted. However, if your case has sat on the back burner for an extended period of time, your defense lawyer may be wise to file a motion to dismiss due to a delay by the prosecution. This is not as uncommon as one might think, particularly in cases involving extensive delays in processing laboratory work. Continue reading

November 15, 2018

Appeal Waiver in Criminal Plea Bargain at Issue in Case Before SCOTUS

By The Law Offices of Richard Ansara, P.A.

Plea bargains, as Fort Lauderdale criminal defense attorneys can explain, have rapidly become the standard resolution in most criminal cases, both at the state and federal level. The U.S. Supreme Court estimates more than 9 in 10 federal and state criminal cases are resolved by plea bargain. This rise has resulted in the previously uncommon practice of defendants appealing convictions for charges on which they already pleaded guilty. So now many prosecutors insist defendants sign appeal waivers as part of the deal.

The Supreme Court of the United States (SCOTUS) is now reviewing a case that stems from this very issue. The outcome in Garza v. Idaho could well impact how criminal plea bargains are resolved both in federal court and within Florida state courts. It’s one most criminal defense attorneys, prosecutors and judges are watching carefully.

The defendant alleges that his trial lawyer’s counsel was inefficient because when he refused to file an appeal as defendant requested, citing the waiver. The court is being asked whether the defendant needs to prove prejudice in order to establish his lawyer’s counsel was not effective. Back in 2000, the SCOTUS ruled in Roe v. Flores-Ortega that prejudice by an attorney can be presumed if a lawyer doesn’t file an appeal at the behest of a defendant. However, given that the case is almost 20-years-old and didn’t involve an appellate waiver, new questions have bubbled to the surface about whether this standard still fits. Continue reading

September 5, 2018

Florida Criminal Defense Lawyer View: Smartphones and 5th Amendment

By The Law Offices of Richard Ansara, P.A.

Eyes may be “windows to the soul,” but could it be said that smartphones contain the “contents of our minds”? That’s what one criminal defense attorney recently argued before a state appellate court, asserting that police investigators executing a search warrant on her smartphone – and prosecutors’ effort to hold her in contempt of court when she refused – were a violation of her 5th Amendment rights.

The trial court agreed, and recently, so did the Indiana Court of Appeals, in a split opinion noting smartphones today are “truly as close as modern technology allows us to come to a device that contains all of its owner’s conscious thoughts, and many of his or her unconscious thoughts as well. So when the state seeks to compel a person to unlock a smartphone so that it may search the phone without limitations, the privacy implications are enormous.”

It’s a case that has raised some very interesting questions about how we navigate well-established constitutional protections for those accused of crime. In the case conclusion here, the majority wrote that courts will probably be continually faced with these kinds of issues that deal with the intersection of rapidly-evolving technology and law. Here, compelling a defendant to unlike her iPhone under threat of contempt and imprisonment is an unlawful violation of her Constitutional Fifth Amendment right against self-incrimination. (In other similar cases nationally, it’s the 4th Amendment’s protections against unreasonable search and seizure that have been cited.) Revealing a smartphone passcode, the court ruled, and prosecutors failed to meet the requirements of the “foregone conclusion doctrine” by describing with reasonable specificity why the information defendant should be compelled to produce and why. (It should be noted that without a passcode, even cellphone makers like Apple can’t extract data from the device, as the encryption key is tied to the passcode. After 10 failed attempts, the phone locks up and might even erase all contents therein. Continue reading

August 22, 2018

Florida’s Medical Marijuana Law Doesn’t Make Trafficking Legal

By The Law Offices of Richard Ansara, P.A.

Marijuana became legal in Florida for limited medicinal purposes last year, and a number of communities have been decriminalizing possession (or at least giving law enforcement discretion in whether to arrest or issue a civil citation). However, there are strict limitations on how far these laws go, and they won’t necessarily protect you from drug trafficking charges.

You will need to speak with an experienced Fort Lauderdale criminal defense lawyer to determine what legal strategy will result in the best possible outcome in your case. Decline to give a statement to law enforcement until you have done so. Continue reading

July 30, 2018

Interviewing Suspect Absent Defense Lawyer Results in Tossed Conviction

By The Law Offices of Richard Ansara, P.A.

Criminal defendants in Florida have the right to a defense attorney in any criminal proceeding. It’s one of the fundamental rights guaranteed by the U.S. Constitution (the Sixth Amendment in particular), with the U.S. Supreme Court applying this right to state-level criminal proceedings in the 1963 case of Gideon v. Wainwright. Further, deprivation of a defendant’s right to a criminal defense attorney or denial of a choice of attorney absent good cause should result in the reversal of a criminal conviction, per the U.S. Supreme Court’s 2006 ruling in U.S. v. Gonzalez-Lopez.

Unfortunately, the government (law enforcement investigators in particular) do not always go to great lengths to fulfill this duty to make counsel available – particularly at key times pre-trial, such as during questioning and interrogation.

That’s reportedly what happened recently in a case, Baskin v. State that resulted in a Florida homicide conviction in Manatee County. According to Sunshine State News, Florida’s 2nd District Court of Appeal reversed the conviction and ordered a new trial for a man convicted of second-degree murder and sentenced to 30 years in prison for the death of a woman in Bradenton in 2012. Authorities, in the course of their investigation, reportedly discovered decedent had been romantically involved with defendant and that he was a frequent guest in her apartment, where her body was discovered. Continue reading

July 22, 2018

Amid Immigration Crackdown, Strong Criminal Defense More Important Than Ever

By The Law Offices of Richard Ansara, P.A.

There is an inherent interplay between criminal and immigration law that has recently come under an intense spotlight since the Trump administration has taken a hard line on immigration policies,. This includes aggressive action by immigration authorities to initiate proceedings against those with decades-old criminal convictions for non-violent crimes. In the past, that usually involved recent convictions for felonies – violent crimes in particular – and typically only undocumented immigrants.

However, as the Miami Herald reported recently, even documented immigrants, such as those holding green cards who have green cards and are long-time residents, aren’t immune. In fact, this is now policy per new guidelines passed earlier this month by U.S. Citizenship and Immigration Services have indicated that immigrants who abuse any program that is related to acceptance of public benefits can be brought before an immigration court and subject to removal if evidence of fraud or willful misrepresentation is established. Under this new guidelines, immigration officials actually have expanded authority to issue Notices to Appear, which is what starts the whole deportation process.

Since the 2010 U.S. Supreme Court case of Padilla v. Kentucky, criminal defense lawyers have been required to advise non-citizen clients about the possible immigration consequences that may result from acceptance of a guilty plea. Failure to do so amounts to a violation of one’s Sixth Amendment guarantee of effective counsel. A violation on this front can be grounds for post-conviction relief, including possibly a modification of one’s criminal sentence or a new trial. Continue reading

May 28, 2018

Broward Law Enforcement Leads State in Red Flag Law Gun Seizures

By The Law Offices of Richard Ansara, P.A.

Under Florida’s controversial new “red flag” law, passed after the deadly shooting at a Parkland High School, law enforcement agencies in Broward lead the state in arrests for violations.

The Red Flag gun law was passed March 5th, designed to allow local law enforcement agencies to seize weapons from individuals who suffer from emotional or mental health issues or those who display certain problem behaviors that indicate posing a direct danger to others. Florida is one of just a few states to pass such a law, and many have been critical of it as a knee-jerk reaction.

From the standpoint of a criminal defense lawyer, the concern is individuals who have committed no crimes may be targeted by law enforcement in a manner that not only infringes upon their Second Amendment rights, but could make them vulnerable to arrest – not only for this, but potentially other unrelated charges. Throughout this process, our goal is to ensure our client’s Fourth Amendment rights (shielding against unreasonable search and seizure) are fiercely protected. It is unlawful for any evidence obtained from a lawful search to be introduced into court (this evidence is often referred to in legal terms as “fruit of the poisonous tree”). These searches may lead to evidence used to assert another crime – but only if that evidence was gleaned lawfully. Continue reading

April 28, 2018

Florida Opioid Death Defendants Face Manslaughter or Murder Charges

By The Law Offices of Richard Ansara, P.A.

As Florida – and the rest of the country – have been grappling with a crisis of opioid addiction, law enforcement and prosecutors have been pursuing criminal action against those who make these drugs available. Drug-dealing has never been legal, but increasingly, prosecutors are going after doctors, pharmacists and others with murder charges against those who distribute drugs that lead to fatal overdoses.

Recently though, a circuit court judge in Central Florida has tossed several first-degree murder charges against dealers accused of doling out a fatal dose of fentanyl, based on the fact that the cases were reportedly initiated under a faulty legal premise. As The Orlando Sentinel reports, several other defendants are now seeking to have their homicide cases dismissed. The state attorneys office has sent notice to attorneys and judges in similar cases of the ruling, as it could have a direct bearing on pending criminal cases in that region – and potentially throughout the state.

It was only last October, Gov. Rick Scott signed off on a law that would add fentanyl to the list of illicit drugs for which dealers could be charged with murder in the event of a deadly overdose. Maximum penalties per F.S. 782.04, the state’s murder statute, could include either life in prison or execution. Continue reading

April 20, 2018

New Florida “Red Flag” Law Allows Police to Seize Guns, Arrest Those Who Refuse

By The Law Offices of Richard Ansara, P.A.

Following the mass shooting at a South Florida high school in February, Florida became the sixth state to pass a so-called “red flag law,” something numerous other states are also examining.

Sometimes also referred to as a “risk warrant law,” this measure approved by state legislators last month give police officers the authority to temporarily remove guns and ammunition from individuals who display warning signs of violence to themselves or others. Floridian Sen. Marco Rubio has said he plans to introduce similar legislation at the federal level that would allow close family members and law enforcement the ability to obtain a court order to bar future gun sales to someone who might pose a threat. Backers of red flag laws say they can help drive down the number of gun-related injuries and deaths, including suicides. Opponents say they deprive citizens of their Second Amendment rights without due process.

Before Florida, five other states (Washington, Oregon, Indiana, Connecticut and California) had laws on the books enabling officers to seize firearms after receiving notice that a person with access to deadly weapons may pose a danger to themselves or others. It’s not clear exactly how effective these laws are (it’s difficult to opine the number of crimes prevented). We do know that in Connecticut, an average of seven guns were seized from every one person targeted from 1999 to 2013. Continue reading