Monthly Archives: August 2018

Fourth Amendment, Motion to Suppress

Police/Citizen Encounters

Broward Criminal Defense Attorney Neil C. Kerch explains Police/Citizen Encounters…by Neil C. Kerch

Before an officer can stop an individual, the police officer must have “founded” or reasonable suspicion that the individual has committed, is committing, or is about to commit a crime.  § 901.151(2), Fla. Stat. (2004).  A “mere” or bare suspicion will not suffice.  State v. Beja,451 So. 2d 882 (Fla. 4th DCA 1984).

However, not all encounters with Law Enforcement fall into this requirement.  A consensual encounter is a police-citizen encounter where a citizen may either voluntarily comply with police requests or choose to ignore it, and does not give rise to constitutional safeguards because the citizen is free to leave.  United States v. Mendenhall, 446 U.S. 544, 100 S. Ct. 1870, 64 L. Ed.2d 497(1980); Popple v. State, 626 So. 2d 185, 186 (Fla. 1993); Brye v. State, 927 So. 2d 78, 81 (Fla. 1stDCA 2006).  Unfortunately, many people do not realize they are free to leave when Law Enforcement is making a consensual encounter.  This often plays a pivotal role in the arrest of criminal suspects and the search and seizure of evidence to be used in trial.

As a Criminal Defense Attorney, I always check to see if the consensual encounter has become an investigatory stop — where an officer may reasonably detain a citizen temporarily — once a police officer displays authority in a manner that would lead a reasonable person to conclude, under the totality of the circumstances, that he/she is not free to leave and feel compelled to comply.  Popple v. State,supraat 186; Williams v. State, 874 So. 2d 45 (Fla. 4thDCA 2004); Errickson v. State, 855 So. 2d 700 (Fla. 4th DCA 2003).

To justify a police officer’s investigatory stop, the officer must have reasonable, articulated suspicion of criminal activity. Mere suspicion is not enough to support an investigatory stop.  Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L.Ed.2d 889 (1968); Popple v. State, supraat 186; Daniels v. State, 543 So.2d 363 (Fla. 1st DCA 1989).  If a reasonable person would conclude, based on the totality of the circumstances, that he/she is not free to leave, then the police-citizen encounter is a seizure under the Fourth Amendment and requires, at a minimum, reasonable suspicion.Florida v. Bostick, 501 U.S. 429, 111 S. Ct. 2382, 115 L.Ed.2d 389 (1991); Ripley v. State, 898 So.2d 1078 (Fla. 4th DCA 2005); Miller v. State, 865 So.2d 584 (Fla. 5th DCA 2004).  If the Government violated the Fourth Amendment rights, then the arrest and evidence gathered may not be able to be used in trial.

If you or a loved one has been arrested and you believe the police violated your Fourth Amendment rights, contact Broward Criminal Defense Attorney Neil C. Kerch for a free initial case consultation.

Disclaimer:

This post is only general information and is not legal advice or a substitute for legal advice. You should only use this post to familiarize yourself with the criminal justice process in Florida. Importantly, each case is unique and will not necessarily be handled in the same manner as described in this post. Please contact Neil C. Kerch for a free initial case consultation if you have specific questions regarding your involvement with the criminal justice system.

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Stand Your Ground Law

The Evolvement of Florida’s Controversial Stand Your Ground Law

Broward County Criminal Defense Attorney explains Florida’s controversial Stand Your Ground Law…by Neil C. Kerch

In 2005, the Florida Legislature enacted the Stand Your Ground law and by statute eliminated the common law duty of an individual to retreat before using force in self-defense. § 776.012(1), Fla. Stat.; Kumar v. Patel, 227 So. 3d 557, 559 (Fla. 2017). The statute also provides immunity for those who lawfully use force in self-defense. § 776.032, Fla. Stat. The Florida Supreme Court subsequently determined in Bretherick v. State, 170 So. 3d 766, 775 (Fla. 2015), that a defendant has the burden of proof in a pre-trial Stand Your Ground immunity hearing and that the defendant has to prove by a preponderance of evidence that the defendant’s “use of force was justified, as specified by statute.”

Following the issuance of Bretherick in 2015,  the Florida Legislature amended section 776.032 and added subsection (4), which states:

In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).

The legislature provided that “[t]his act shall take effect upon becoming a law,” which occurred when the governor signed the bill into law on June 9, 2017. Ch. 2017-72, § 1-2, Laws of Fla.

The amendment shifted the burden of persuasion from the defendant to the state. The amendment also changed the quantum of proof required from preponderance of the evidence previously required of the defendant to clear and convincing evidence now required of the state, after the defendant makes a prima facie claim of self-defense immunity.

As you can see the Florida Stand Your Ground Law is evolving and with this evolvement it opens up new legal challenges.  For example, are the changes in subsection (4) procedural or substantive? Should we apply the changes retroactively or prospectively from the date the changes became law?

The answer is it depends on where you live in Florida.  If you live in the area that is covered under the the Third or Fourth District Court of Appeals, then the the amendment adding subsection (4) is a substantive change to the law, and as such, applies only prospectively from the date of enactment. If you live in the area that is covered under the the First or Second District Court of Appeals, then the the amendment adding subsection (4) is a procedural change to the law, and as such, applies retroactively.

If you or a loved one is facing Criminal Charges in Broward, Miami-Dade, or Palm Beach, Criminal Defense Attorney Neil Kerch has the knowledge and experience to guide you through Florida’s Controversial Stand Your Ground Law.

 

Disclaimer:

This Post is informational in nature and is not intended to provide or substitute for legal advice.  Each case is unique and should be evaluated by a Criminal Defense Attorney.

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