Gainesville Personal Injury, Divorce and Alimony Attorney

Instructive Constructive Possession Florida Case

Constructive possession means other than physical possession. In the world of criminal defense this usually means drugs or narcotics, firearms or other contraband are found but, not in the pocket or in the bra of the defendant. Constructive possession is an important concept for cases involving possession of a firearm by a convicted felon or a concealed firearm or weapon without a license.  For example, you possess that television on your wall, you can move it, throw it away, and beat it with a baseball bat because you control it. However, no one carries around their flat screen in their back pocket. 

To prove a constructive possession of drugs or other contraband, the government must prove (1) knowledge of the presence of and (2) the ability to exercise dominion and control over the item. For example, a houseguest knows the television is there but has no authority to beat it with a baseball bat. The houseguest does not constructively possess the television.  A convicted felon cannot possess a firearm that is in a friend’s safe even if the felon knows the firearm is there.

Recently, an appellate court ruled that where a purple bag containing cocaine was found inside a grey bag, that grey bag also contained the identification of the defendant,  and the grey bag was found under the driver’s seat of a car where the defendant had been seen inside, that was not enough to prove the possession of cocaine. Had the person in that case been caught when pulled over for a traffic stop, then the location of the cocaine would have likely been more important. But inside that bag were items belonging to at least one other person and there were two other people observed in the vehicle.

Joint possession cases are easier when one person admits to the ownership. However, most prosecutors will tell you that they prosecute possession and not ownership. So if your boyfriend asks you to place the cocaine in your bra, the “it is not mine” defense may not work for you. Once there is an arrest or notice to appear on a drug case, it is time to consult with an attorney.

What will work is hiring the right lawyer who will take the time to prepare a defense through depositions and motion hearings. Whether it is your first time or you are seasoned in your court appearances, you should not go it alone. Please click or call for a consultation.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Illegal Search of a Probationer at a Traffic Stop

Many criminal  or violation of probation cases start when drugs are found after search at a traffic stop or or other offenses are discovered via the stop such as violation of a curfew or license restriction. This is particularly problematic for people on probation. New criminal law violations are substantive violations, everything else is a technical violation of probation. 

A recent case from the Second District is an example of why a stop for speeding, running a stop sign or other traffic infraction is a problem for probationers. An officer stooped a vehicle for not coming to a complete stop at a stop sign. The officer testified that his standard procedure was to run a license check and a warrants check that informed the cop that the driver was on probation. Being on probation or recently released from jail or prison will normally lead an officer to ask more questions as it did in this case.

The probationer believed that he could not decline the request to search because he was on probation and the officer did not refute  or clarify the misconception. Furthermore, the officer kept the probationer’s license. Keeping a driver’s license and not knowing that he could decline the request for consent to search were important factors to finding the search to be illegal.

A standard condition of probation is that a probationer must answer truthfully and consent to search by his probation officer. Essentially, while on probation, you are stripped on most of your 4th amendment ad 5th amendment rights to your probation officer. This is generally referred to as the probation exception to the warrant requirement. Probation officers may execute warrantless searches of a probationer’s home or workplace. However, this exception, waiver or stripping of rights does not extend to all law enforcement officers.

To support a warrantless search by consent the State has the burden to show that the consent was freely and knowingly made. Officers are not required to advise citizens of the right to refuse consent, however awareness of the right to refuse a search is also important. In addition, a traffic stop must last no longer than the time it takes to write the traffic citation.

All circumstances following the stop have to be taken into account. Whether or not someone has been seized is evaluated by the totality of the circumstances. The totality of the situation should lead to the conclusion that a criminal defense lawyer is needed. The firm’s primary focus is criminal and traffic defense. Click or call to discuss the case in a free consultation.

Gainesville (352) 371-9141

Ocala (352) 694-4529

Villanueva v. State 2D15-1422

HTO No! (Florida Habitual Traffic Offender)

For some it is getting the letter or notice of Habitual Traffic Offender (“HTO”) in the mail. For others it is getting arrested after being pulled over for no reason or even if there was a traffic citation, surprise! The license is being, or has been, suspended for five (5) years. The driver has been habitualized!  After Notice from the DHSMV, we can determine the next step to attempt to reinstate the license. An analysis of the driver record may be required. 

A person caught driving on a license that has been revoked pursuant to the habitual offender law can be charged with a third degree felony, punishable by up to five (5) years in prison. People do serve jail or prison time for driving offenses in Florida. Therefore, upon receipt of a letter, informing that because of points or too many criminal traffic offenses, the license is lost for five (5) years, DO NOT drive after the effective date of the suspension. Because driving on a habitual suspended license is a felony, it will be taken seriously by the Courts.

Not all hope is lost; there are things that can be done to reverse the habitual suspension. For example, if the reason for the suspension letter is that recently several traffic tickets were paid, then a traffic attorney may be able to help get your license back. A hardship license is available after one (1) year of no driving. Changing the disposition or sentence in one or more civil traffic ticket cases could mean the difference between being arrested for driving, no driving for a year and reminstating the license.  A reinstatement fee will have to be paid, if the driver is able to have the license reinstated.

There are also reasons for suspension that cannot be easily undone. If the reason is too many criminal traffic cases such as, knowingly driving on a suspended, revoked or cancelled license, failure to stop or leaving the scene of a crash, drunk driving (DUI), manslaughter or homicide, then the remedy may be more difficult. There may be no remedy.

Getting a driver’s license back is a completely separate matter from being arrested or accused of a crime. Please click, call or fill out the form for a consultation.  We can also help after arrest or receipt of a criminal or “court appearance required” citation.

Gainesville (352) 371-9141

Ocala (352) 694-4529