Constitution - Bill of Rights Category Archives — Page 2 of 10 — White Collar Criminal Defense Lawyer Blog Published by Miami, Florida White Collar Criminal Defense Attorney

Published on: May 15, 2019

Reaching into a pants pocket to seize a bullet was a constitutional pat down search

In U.S. v. Johnson the Eleventh Circuit court of appeals reversed a panel decision which held that an officer conducted an unconstitutional search and seizure when he removed a round of ammunition from the defendant’s pocket after conducting a pat down of the defendant who was a burglary suspect. The en banc court decided that the seizure of the ammunition was a constitutional search under Terry v. Ohio. The facts show the Opa-Locka, Florida, Police Department received a 911 call about a potential burglary in progress at a multifamily duplex. Behind the duplex was a fence that separated the duplex from the adjacent property. The 911 caller described a black male wearing a white shirt trying to get through the window of a neighbor’s house.

Soon after officers arrived, the defendant was seen coming from the back of the complex through an alley. He fit the description of a black male wearing a white shirt. He was ordered to the ground and handcuffed and detained until they could figure things out. Because of the nature of the call and the high crime nature of the area, the officer conducted a pat down of Mr. Johnson for officer safety. The officer felt a nylon piece of material and then underneath it he felt a hard-like, oval-shaped object which led him to believe it was ammunition. He removed it thinking that there might be a weapon nearby or another person in the apartment that may come out with “something.” It was a black nylon pistol holster and one round of .380 caliber ammunition.

Published on: May 13, 2019

Ignoring a detainee’s need for medical treatment was deliberate indifferent in violation of the Eighth Amendment

by The Swartz Law Firm

After Almus Taylor died from internal bleeding after being kept in a jail holding cell overnight, Almus’s father Bonny Taylor sued the jail guards under 42 U.S.C. §1983 and Alabama state law alleging that they were deliberately indifferent to Almus’s serious medical needs. After the district court dismissed Bonny’s claims based on qualified immunity, he appealed to the Eleventh Circuit court of appeals raising the question whether qualified immunity shields the guards from Bonny’s constitutional deliberate indifference claim.

These are the background facts. Taylor was found in a battered pickup truck by a Covington County Deputy who called Emergency Medical Services and Alabama Highway patrol. While the EMS offered to take him to the hospital, he refused because they could not accommodate his request that he bring his dog along. The Alabama state trooper then arrested Almus for driving under the influence and took him to jail.

Published on: May 3, 2019

The emergency-aid exception overcame a warrantless home search challenge

by The Swartz Law Firm

A U.S. Marshals Service fugitive task force and counter gang unit sought to arrest Cooks at his home. A member of the Bloods street gang, Cooks was wanted for second degree assault by the Birmingham Police Department. While surveilling Cooks’s home, the officer saw a car arrive at the residence and the driver entered the home without any interest in speaking with the officers. The officers made contact with two other occupants who told the officers the door had been barricaded and locked from the inside and they could not open it because they did not have a key. The officers started hearing drilling sounds coming from inside the house. Soon after one of the occupants was able to exit briefly and before returning to the house she told officers that Cooks was armed. Concluding that they were facing a potential hostage situation, the officers called the SWAT team. A hostage negotiator made contact with an occupant who told the officer that the two occupants wanted to leave but couldn’t. They also told the officer that Cooks was doing something in a hole in the floor. When negotiations failed, the SWAT team broke into the house and removed the hostages. One hostage told the officers that Cooks had put multiple guns in a hole in the floor.

After arresting Cooks, the officers did an initial 30 second sweep, followed by a three to four minute sweep. They found a four by four hole covered by the plywood nailed down with screws. When the deputies remove the plywood covering and entered the hole, they found a several pistols and long guns. Only after the discovery of the guns did they obtain a search warrant to search the Cooks home.

Published on: April 26, 2019

Excessive force claim upheld for injuries sustained from handcuffs

by The Swartz Law Firm

In an important decision the Eleventh Circuit held in Sebastian v. Ortiz that an arrested person can proceed with a civil rights excessive force claim for substantial injuries arising from a handcuffing following a valid arrest. This is an appeal by Javier Ortiz of the Miami Police Department from the district court’s denial of his motion to dismiss the civil rights excessive force case against the officer by Ruben Sebastian. While driving in the City of Miami Sebastian was pulled over for a speeding traffic violation. When the officer who stopped Sebastian asked for permission to search the interior of the car, Sebastian refused to give consent. Officer Ortiz was summoned and his request to search was also denied. Ortiz then became enraged and removed Sebastian from the car and with the aid of other officers restrained Sebastian and placed him in metal handcuffs which he claims were put on in a manner to purposely cause pain and injury cutting off the circulation in his hands and cutting into the skin of his wrists. When Sebastian was placed in a vehicle for transportation to the police station, Ortiz replaced the metal handcuffs with plastic flex cuffs that were allegedly tight and were intended to cause pain and further injury. Sebastian was taken to the station and detained for more than five house still handcuffed behind his back. The charges against him of resisting an officer without violence were later dropped by the State Attorney.

Published on: April 24, 2019

No illegal seizure following a valid traffic stop

by The Swartz Law Firm

Reginald Gibbs was arrested and pleaded guilty to possession of a firearm by a convicted felon. Before he pleaded guilty to the possession, he filed a motion to suppress the evidence of the firearm seized from him by the police. The district court denied that motion and he appealed the district court’s decision.

The facts leading up to his arrest began when Miami-Dade Police Detective Lopez was patrolling an area he knew as a high crime area in Miami when he spotted an Audi blocking traffic in the direction that Lopez was traveling. He called for back-up and Detective Dweck arrived to assist. When they exited their vehicles the driver of the Audi was standing just outside his care between the Audi and another car parked on a gravel shoulder area next to the road with the space between the two vehicles just wide enough for two people to stand there. Gibbs was standing next to the driver, Jones, and both men stood next to the Audi. When the officers approached, Jones and Gibbs were channeled between the two cars. Lopez approached from one side and Dweck from the other so Jones and Gibbs would not have been able to leave without going through Lopez or Dweck. They were blocked from leaving. As Dweck approached Gibbs, Gibbs appeared to be looking around as if he was about to flee, he then immediately told the detective that he had a gun on him. Because he did not have a permit, he was arrested for carrying a concealed weapon without a permit.

Published on: March 20, 2019

Investigators were not liable for omitting possibly exonerating information from an arrest affidavit

by The Swartz Law Firm

The three plaintiff’s in Paez v Mulvey case were police officers of the Golden Beach, Florida police department were arrested in 2011 on various charges of public corruption. The criminal accusations alleged that these officers fraudulently failed to report off-duty police work that would have required them to pay administrative fees to the department. The allegations in the probable cause affidavit claimed the officers were paid simultaneously by the department for work performed at the same time they were billing for off-duty work. The affidavit also claimed the officers submitted fewer hours for off-duty work than they were actually paid in order to avoid paying the town of Golden Beach a five-dollar-per-hour administrative fee for off-duty work to cover costs like insurance and the use of police vehicles.

The criminal charges against the officers were eventually dropped by the State Attorney’s Office and the case was dismissed in 2014. The officers then sued the four Miami-Dade investigators who were assigned to investigate the alleged misconduct at the Golden Beach police department and who submitted probable cause affidavits to a judge sitting the Eleventh Judicial Circuit Court in Miami-Dade County that led to the issuance of arrest warrants for the officers.

Published on: March 4, 2019

Civil right claim fails for a victim of a prosecutor’s defamatory statements

by The Swartz Law Firm

After serving seven years in prison for a kidnapping and rape conviction, a DNA test revealed that Echols’s DNA did not match the semen recovered from the victim. His conviction was vacated by a Georgia trial court and the local district attorney, Spencer Lawton, declined to retry the case causing it’s dismissal. A state legislator later introduced a bill to compensate Echols to compensate Echols for his wrongful convictions, but Lawton wrote a letter and memorandum to several of the legislators opposing Echols’ compensation falsely stating that Echols remained under indictment. As a result of Lawton’s correspondence, the bill failed. Echols filed a 1983 lawsuit against Lawton for violating his rights under the First and Fourteenth Amendments. The trial court dismissed the lawsuit based on its finding that Lawton had qualified immunity protection from the lawsuit.

In Echols v. Lawton, the court of appeals rejected Echols’ s appeal from the trial court’s dismissal of his claim. It agreed that Echols stated a valid claim for retaliation under the First Amendment. A claim for First Amendment retaliation requires the plaintiff to allege that he engaged in protected speech, that the official’s conduct adversely affected the protected speech, and that a causal connection exists between the speech and the official’s retaliatory conduct. Here it was alleged that Lawton retaliated against Echols by his speech to the members of the legislature. Lawton’s speech contained defamatory statements that were libel per because it falsely stated that Echols had a criminal case pending against him. The court rejected Lawton’s to invoke the First amendment protection because it does not protect an official’s defamatory speech from a claim of retaliation.

Published on: March 1, 2019

Attorney should have asked for a mistrial given a judge’s repeated direction to the jury to continue deliberating

by The Swartz Law Firm

Brewster appealed from his denial of his 28 U.S.C. 2254 petition for a writ of habeas corpus in which he claimed his trial counsel rendered ineffective assistance by failing to move for a mistrial as any point during the deadlocked jury deliberations. In the decision issued in Brewster v Heztel, the Eleventh circuit court of appeals agreed and reversed his Alabama state court conviction.

Brewster was tried on two counts of armed robbery. On the second day of Brewster’s trial the case went to the jury. During the course of the deliberation the jury reported being deadlocked five times, once on the first day and four times on the second. The firmness of the deadlock increased as deliberations continued. The first note reported the split was 9 to 3. When asked by the judge whether there was any way the case would be resolved with a unanimous jury the foremen answered no. The second note reported that the jury could not reach a unanimous decision and that one juror had decided not guilty and that no amount of time was going to sway them. A third note reported that all jurors have decided firmly eleven guilty and one not guilty with no possibility of resolve. The fourth note said the holdout was unwilling to discuss the case. The fifth note informed the judge that the holdout was refusing to discuss the case and was doing crossword puzzles instead.

Published on: February 14, 2019

A Fourth Amendment violation to repeatedly taser an arrested person who is not resisting

by The Swartz Law Firm

Bob Glasscox sued Officer David Moses and the City of Argo, Alabama under 42 U.S.C. 1983 for excessive force in violation of the Fourth Amendment for injuries he received when Officer Moses tased him four times in rapid succession. Glasscox, a type 1 diabetic, suffered a severe hypoglycemic episode while driving his pickup truck on Interstate 59 near Argo, Alabama. His condition caused him to begin driving erratically, and after other drivers reported his erratic driving Officer Moses was dispatched to the scene. The events that unfolded were captured on his body camera.

Published on: January 12, 2019

23-month negligent delay from indictment to arrest was not a Speedy Trial violation

by The Swartz Law Firm

David Lazaro Oliva’s appeal dealt mainly with a Speedy Trial issue. After an investigation into two large scale burglaries that took place in October and November of 2011, revealed the burglaries were committed by Oliva and Rafael Uranga, they were indicted in November 2013 with conspiracy to commit interstate transportation of stolen property. They were not arrested until October 2015, some twenty-three months later. They moved to dismiss their indictment based on a Sixth Amendment speedy trial violation. The United States Magistrate found that the delay between the indictment and the arrest was the result of the Government’s gross negligence but ultimately recommended that the motions be denied. The District Court agreed and both plead guilty. In their appeal they raised the Speedy Trial issue.

The case was investigated by Michael Donnelly, a Gwinnett County Police Department officer serving as an FBI Task Force Officer assigned as the sole investigator in the case. After the indictment Donnelly was responsible for locating and arresting the two but he mistakenly believed the United States Marshals Service had this responsibility. In January of 2014 after no arrests happened he asked another task force officer to communicate with the Marshals. That officer found out that the Marshals do not handle the arrests, but he failed to communicate this to Donnelly. Donnelly still failed to ask about the FBI procedure or whether the Marshals would begin locating the defendants. Donnelly still did not know it was his responsibility and failed to communicate with the U.S. Attorney’s office about the issue during the two year period.