The bride on the side is a nice touch.
Thứ Hai, 30 tháng 4, 2012
Stormy Monday (Again).
Greenberg Traurig oy!
The dismissal of Greenberg from nearly all things Rothstein is the talk of the cocktail circuit in South Florida's legal community.Hey, at least they're finally discussing something law-related.
In other news, there is this:
A new survey found that Fortune 1,000 corporations are significantly less likely to arbitrate contract disputes today than they were in 1997. In the 1997 study, 85% of companies reported using arbitration in commercial contract disputes at least once during the prior three years. In 2011, however, only 60 percent of companies so reported. In contrast, the companies’ usage of mediation remained steady at around 80%.
The most common reasons given by survey respondents (general counsel and senior corporate lawyers) for not using arbitration included: the difficulty of appeal, the perception that arbitrators tend to compromise, the concern that arbitrators may not follow the law, a lack of confidence in neutrals, and high costs of arbitration.Can someone let the Supremes know?
Thứ Bảy, 28 tháng 4, 2012
3d DCA Watch Special Edition -- UM's "Wasteful and Frivolous in the Extreme" Appeal!
Are you an ardent 'Cane?
Do you only dream in U?
Do you in fact have a vanity Cane license plate which means you can share in the glory of the football team as if your old crinkled self personally scored that winning touchdown?
But hey it works both ways, if you self-identify and live vicariously through your college from 20 years ago you have to suffer their losses as well as well as bask in their wins, as if you yourself were liberated from Egypt (oops, still have Passover on the brain....).
So suffer you must in this special Friday Bunker Blast™ involving a scathing special concurrence from Judge Schwartz in a tragic med mal case out of Jackson Memorial:
SCHWARTZ, Senior Judge (specially concurring).Aww, come on judge, tell us how you really feel!
As evidenced by the fact that we have, by separate orders, granted the appellee’s motions for assessment of attorney’s fees against appellants as a sanction under Section 57.105, Fla. Stat., and Rule 9.410, Fla. R. App. P., this case is wasteful and frivolous in the extreme. I believe that it deserves only a quiet interment in the form of a PCA.
Big big win from 3d DCA maven Barbara Green -- congrats!!
Thứ Sáu, 27 tháng 4, 2012
Fifth District Reverses Over Telephone Testimony
The Fifth District Court of Appeal reversed today in Cole v. Cole, a relocation case in which the minor child’s stepmother was permitted to testify via telephone over the objection of the Former Wife. Given the very damaging nature of the testimony, the Fifth District was unable to consider the error harmless, and was forced to reverse the ruling in its entirety.
Criminal Defense - Florida Employee Drug Testing Unconstitutional
 |
| Drug Charge Defense 813-222-2220 |
Criminal Defense Attorney has just obtained the full text of a Florida Federal District Court ruling on employee drug testing. The court found where there is no legitimate safety concern, drug testing without probable cause violated the Fourth Amendment.
Case Excerpt:
Great news for Employees subjected to Florida Employee Drug Testing - Unconstitutional Court says, "The [employee's] Union here asks for a permanent injunction, which requires three elements: 1) there was a legal violation; (2) there is a serious risk of continuing irreparable injury if an injunction is not granted; and (3) there are no adequate remedies at law. (citation omitted). Here, the Court finds that the EO [Executive Order 11-58], as applied to current employees at the covered agencies, is violative of the Fourth Amendment, and that these employees will suffer irreparable harm if subjected to it." Defense Attorney Courtesy Copy of Complete Employee Drug Testing Opinion is here.
Drug Testing Problem? Call Casey at 813-222-2220 .
Drug Testing Problem? Call Casey at 813-222-2220 .
Hunger Games
The Intrepid One hits her investigative reporting stride on lunch.
And as usual, she nails it. She found powerful people lunching here. (La Loggia is, like, so 2011.)
This is a must-read, chock full of useful information.
Alexandra Bach Lagos, president of the Miami chapter of the Florida Association for Women Lawyers shares this: "I usually get a salad with brie and turkey. I try to stick to the salads. But the guys at my office love the pizza."
Cool.
Jim Miller says "I'm always there by noon." And then he really opens up: "I listen to the specials carefully," said Miller. "The pizzas are great but I usually don't eat pizza for lunch cause it's kind of messy."
Which I guess means all the guys at SH & B are messy after lunch.
When Edith Osman is not eating cottage cheese at her desk, she dines at Fratelli because "It's not a fancy place."
I'll say. They don't even have a valet, and Judge Moreno walks there!
You see what I mean about this piece?
I can't remember the last time I ate cottage cheese. Its not really cheese.
All this culinary talk has made me saucy. Alas, Rumpole's reference tipped the scale to the movie version instead of Cocker live. After all, it is Friday.
N.B. On what Julie apparently regards as a less newsworthy note, the federal JNC today is interviewing the cabal of mostly state court judges who applied for the vacant federal district court seat. Good luck to all!
Lawyers Do Good Things Sometimes.
Say what you want about Spencer, but he does in fact put good things in motion, as evidenced above via the lawyers who donate their time and energy and all they get in return is a camera video with Spencer putting them on the spot and asking them a bunch of questions.
(You were warned -- send me some tips.)
Thứ Năm, 26 tháng 4, 2012
Loan Modification Settlement with Residential Credit Solutions
Shuster & Saben, LLC has reached a Loan Modification Settlement with Residential Credit Solutions.
Old Payment: $1,240.00
New payment: $961.17
New payment: $961.17
Juvenile Crimes in West Palm Beach and Fort Lauderdale
Arrested for Possession of Marijuana in Fort Lauderdale?
Arrested for Possession of Marijuana in West Palm Beach?
Know Your Legal Rights When Dealing With Police in Florida.
Can the police search me whenever they want?
The answer is NO.
The police are allowed to search you for weapons only, and only if, they have a reasonable suspicion to believe you may be carrying a weapon. If the police feel something that they reasonably believe to be a weapon they may retrieve it from your pockets or waistband. This is permitted for a Police Officer’s Safety. The police cannot go into your pockets for anything else.
For example, if you are walking home from school and a police officer stops you and requests to search your person then you should politely respond, “ I do not consent to searches.” If the officer feels that safety is an issue, and they will always say that safety is an issue, they will pat you down. A “pat down” means they can feel the outside of your clothing for any weapons. If they feel something that is not a weapon and tell you to remove the item you must repeat the magic words, “no, I do not consent to searches” because if you remove the item from your pocket and it is something illegal you will be arrested. If the police go into your pocket and remove it without probable cause to arrest that is illegal. If you are illegally searched and arrested then your criminal defense lawyer will be able to file a motion to suppress the evidence and possibly dismiss the criminal case.
Please remember never touch or pull away from a police officer, as your problems will greatly increase. Simply, repeat the magic words, “Officer, I do not consent to searches” and repeat several times if they don’t listen. Never volunteer information to a police officer. The only thing you should supply them with is your name. Your constitutional rights are solid and they say that you don’t need to talk to the police. So do not talk to them. Do not tell them where you are going, what you have been doing or your reason to be at your current location as it is none of their business. If you feel you need to answer a question, think twice. The police are paid to arrest people. Everything you say will be used against you. If a police officer asks me why I am at a particular location I say, “personal business.” That is sufficient. You do not need to answer their questions-respectfully decline to answer questions.
If you have been arrested then the police are allowed to fully search you after you are arrested. They can search your pockets, and belongings that you are carrying, etc. If arrested, remain silent and never pull away or touch a police officer or it will only get worse. Remain silent and request a lawyer. The wait is long when you are arrested but remain silent as eventually you will have a lawyer and your lawyer will fight your fight, not you. If you fight or argue with police they will add additional charges-remain silent except when asking for a lawyer. Asking police officers questions can waive your constitutional rights. Police are arresting you so do you really think they are your friend? Common sense tells you that they are not and the Florida Supreme Court has ruled that police officers are allowed to lie to suspects during their investigation. Expect everything they say to be a potential lie. Remain Silent!
The case below involves a juvenile in Miami-Dade County that was being investigated for a burglary and was being detained temporally by police. At the time, the police officer detained him, there was not sufficient probable cause to arrest him and the police were only allowed to pat him down for weapons. The police in this case searched his pockets and found marijuana. The search was deemed illegal by the District Court of Appeal because the juvenile had not been arrested and they had no reason to search him other than to pat him down for weapons.
Note: Although the case was decided in Miami-Dade County, the law is the same throughout Florida. Yes, there are different District Courts of Appeal (Appellate Courts) and sometimes they reach different conclusions, but if, and when that happens, there are often distinguishing factual differences that explain the different rulings. If two or more District Courts of Appeal give conflicting conclusions on the same issue the case is sent to the Florida Supreme Court for a defining answer.
Check out the case below to understand the Court’s logic and why the search was illegal.
D.S., A JUVENILE, Appellant, vs. THE STATE OF FLORIDA, Appellee. 3rd District. Case No. 3D09-2558. L.T. Case No. 09-2521-A. Opinion filed April 11, 2012. An Appeal from the Circuit Court for Miami-Dade County, Mindy S. Glazer, Judge. Counsel: Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant. Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
(Before SHEPHERD, SUAREZ, and LAGOA, JJ.)
(SUAREZ, J.) D.S., a minor, appeals from a withhold of adjudication of delinquency entered following an adjudicatory hearing. We reverse, as the trial court should have granted the motion to suppress filed by D.S.
D.S. was detained, along with other persons, on suspicion of burglary. He was later arrested for loitering and prowling and for suspected marijuana. He was not under arrest at the time another officer brought D.S. to Officer Lambert, who understood that she was merely detaining him while the other officers finished their investigation. Officer Lambert proceeded to fully search D.S., not pat him down, prior to placing him in her squad car to await the outcome of the investigation. She did not read him his Miranda1 rights, she did not see any bulges that might give her probable cause to search.2 She testified that she routinely searches suspects prior to placing them in her vehicle as a safety precaution. Upon fully searching D.S., she discovered a baggie of marijuana and at that point she arrested him.
The trial court erroneously denied D.S.'s motion to suppress. D.S. was not under arrest at the time of the search, he was merely detained and awaiting the conclusion of the officers' investigation into the burglary call. Officer Lambert's search of D.S. exceeded her authority where there was no reasonable suspicion to believe D.S. was armed and dangerous, and he had not yet been arrested. See D.B.A. v. State, 962 So. 2d 406 (Fla. 2d DCA 2007) (holding that The Florida Stop and Frisk Law authorizes a limited search to disclose a dangerous weapon where an officer has probable cause to believe that the detainee is armed with a dangerous weapon, that search may not go beyond a pat down of the detainee's outer clothing, and only if an officer reasonably believes that an object he feels during a pat down is a weapon may he seize the object) (citations omitted). We agree with the holding in T.L.F. v. State, 536 So. 2d 371, 372 (Fla. 2d DCA 1988), which provides that:
Under the circumstances of this case, an arrest would only have been appropriate if probable cause had existed to arrest appellant for the burglary. The police cannot be allowed to use the loitering and prowling statute to detain an individual for another offense for which probable cause is lacking and then use the fruits of the unlawful detention as evidence that the individual committed the other offense. . . . To allow such “bootstrapping” of evidence would lead back to the dark ages when police were able to use the loitering and prowling statute as a catchall charge to arrest persons at their whim.
We conclude that the order denying the motion to suppress should have been granted and accordingly, we reverse D.S.'s adjudication of delinquency and remand with directions that he be discharged.
Reversed and remanded with directions.
__________________
(SHEPHERD, J., concurring specially.) If the facts were as the State and the dissent propose, I would agree the adjudication should be upheld. But, they are not, so I cannot. The State argues, and the dissent accepts, that D.S. was searched incident to an arrest. However, the record reflects D.S. was not under arrest for any crime -- loitering and prowling, burglary, or anything else -- at the time he was searched by Officer Lambert. The record tells the tale.
Officer Veronica Lambert
Officer Veronica Lambert testified she responded to a burglary in progress. She did not talk to any other officers about the investigation. Pursuant to protocol -- five police units already were on the scene -- she “just stayed off” from the house. Although she did not have a clear view of the house, she saw D.S. emerge from the house with an officer escort. The officer brought D.S. to her to hold him pending completion of the investigation. There were no bulges or other evidence of a dangerous weapon on his person.
As even the dissent acknowledges, at that time, “[D.S.] was being detained” by Officer Lambert in “reference an investigation.” See dissent p. 17. He was not arrested. The search occurred before any arrest. This fact is unambiguously confirmed by Officer Lambert in her testimony:
Q When you came in contact with D.S., why was that?
A Well originally he was one of the suspects that were taken out of the house.
Normally what they do in a situation where you have a burglary in progress, if there's numerous suspects we like to keep them separate.
. . . .
We want to keep them separate so that they don't come up with a collaborated story.
I received one suspect, and the other ones were separated.
Q Did you go up to D.S., or did another officer bring D.S. to you?
A He was brought to me.
Q Okay, but did you see him coming from the vicinity of the house?
A Yes.
Q Is that the house where the burglary in progress was reported?
A Yes.
Q Okay. Now, when you came in contact with D.S., what did you do next?
A I know that he was searched because I had to put him in my vehicle. But I don't recall if I put handcuffs on or if they were already on. I don't recall that part of it, but I know that I did search him because he was going into my vehicle.
Q Now why exactly did you search him because he was going into your vehicle?
A That's something that we do for officer safety. It's an officer safety issue. Just to make sure there's nothing that will harm me, or harm him[ ], or anything like that.
Q Do you do it every time you arrest somebody?
A Absolutely.
Q And do you -
A Arrest, detain, it doesn't matter. For whatever reason.
Q Upon searching the Defendant did you find anything?
A Yes.
Q What did you find?
A A bag of marijuana, suspect marijuana.
. . . .
(emphasis added.)
On cross-examination, Officer Lambert again confirmed D.S. was not arrested when he was brought to her:
Q Was he arrested when he was brought to you?
A Well, I mean at that time he would have been detained.
Q Okay.
A Okay?
Q When you made contact with D.S., did you read him Miranda?
A No, I did not.
Q Did you ever ask him any questions as to why he was in the house?
A No ma'am.
Q Did you subsequently arrest him?
A I'm sorry?
Q You said when he was brought out to you he was detained?
A Right.
Q Then, you thereafter arrested him?
A Right. After the marijuana was found on his person.
Q Okay, but prior to that was there a basis to arrest him?
A Well, as far as the other officers that brought him out of the house, no. As far as I'm concerned with that, he was being detained by me in reference to them finishing their investigation.
(emphasis added).
The final confirmation of this fact occurred on redirect examination with the following colloquy:
Q Okay, so do you know if the officers who handed him off to you, if they were arresting him for anything, including loitering and prowling? Or burglary, or -
A Yes. It wasn't like a hold to identify. It was based on him being held pending investigation and getting information to charge him with, whatever charges, whether it be L and P, or burglary, or whatever the case was.
Q But ultimately there had already been a decision that he -
A Right.
Q -- should be detained?
A Right.
Officer Anthony Collier
Officer Collier arrived on the scene after Officer Lambert. Officer Collier testified as follows:
Q Upon arrival who did you make contact with?
A Upon arrival I made contact with D.S., the Defendant.
Q What did you do in the course of your investigation?
A I believe Officer Veronica Lambert was dealing with him, gathering some information from him. At that point, I took possession of him.
Q You said that you responded to a burglary in progress. Did you make contact with any officers on scene that had previously responded?
A Officer Lambert.
Q What was the nature of Officer Lambert's investigation?
A She explained to me that she had detained the Defendant, and she patted him down, and she was able to retrieve a baggy of suspected marijuana from his right front pocket.
Q Were you investigating any other charges on scene?
A Yes, I was.
Q What other charge were you investigating?
A Loitering and prowling.
Q Did you speak with anyone regarding the loitering and prowling?
A Yes, I did.
Q Who did you speak to?
A . . . Officer Lambert.
Q What were the results of Officer Lambert's investigation?
A She advised me that there were some other officers that responded to the scene as well, and that upon getting there they discovered the Defendant somewhere inside of the home.
. . . .
Q [W]as the homeowner inside the home?
A The homeowner wasn't inside the home, but I spoke to a witness who was on the scene.
. . . .
Q What did [the witness] tell you he observed?
A He told me he was visiting a resident at 2515 Northwest 158 Street, and he observed three black male defendants breaking down the door of the home.
Q Did he tell you that the Respondent was one of those individuals he observed?
A Yes.
Q Based on your investigation on the scene, did you make a determination as to probable cause?
A Yes, of course.
Q What was that determination?
A Based on the burglary in progress that I responded to.
Q What was the Respondent arrested for?
. . . .
A The arrest was for loitering and prowling, and for suspected marijuana.
(emphasis added).
On cross-examination, Officer Collier stated D.S. was “detained” when he arrived on the scene.3 He confirmed he arrested D.S. for loitering and prowling based on what fellow officers told him, since “[t]hey're officers just like me.”
Analysis
The State's position during the hearing on the motion to suppress was that “[t]his was a search incident to arrest.” However, there can be only one conclusion drawn from the actual testimony: D.S. was not placed under arrest until after he was searched. It might have been that D.S. could have been arrested before the search, but, we, of course, must deal with the arrest we have, not the arrest we wish we had. As the Oregon Supreme Court has explained:
[A]n arrest is the crux of a “search-incident-to-arrest.” By definition a search ‘incident to' an arrest is a warrantless search that is justified by the fact that a suspect is arrested. The justification arises from the practical consequences of taking a person into custody, and it cannot extend beyond those practical consequences if the fact of the arrest is its premise.
State v. Owens, 729 P.2d 524, 533 (Or. 1986) (en banc) (quoting State v. Brown, 721 P.2d 1357, 1370 (Or. 1986)).
The dissent urges that two cases from this court, Freeman v. State, 909 So. 2d 965 (Fla. 3d DCA 2005), and Thomas v. State, 395 So. 2d 280 (Fla. 3d DCA 1981), require affirmance. However, in each case, the arrest preceded the search. Also in each case, the defendant argued the arrest was made on an unlawful charge and the search therefore was illegal. We held the searches nevertheless were lawful because in each case there was probable cause to arrest the defendant on another charge. In other words, the justification for the exception to the warrant requirement still applied.
For example, in Freeman, the defendant, Andrew Freeman, and another man were stopped at 4:30 a.m., carrying a large commercial-grade chain saw, a gas-powered weed whacker, a hedge trimmer, and two leaf blowers. Freeman, 909 So. 2d at 966. Freeman also was towing another bicycle alongside the one he was riding. Id. Noticing the substantial amount of lawn equipment and extra bicycle being carried by Freeman, Officer Brad Taylor, aware of a recent rash of lawn tool thefts from garages and lawn sheds in the vicinity, stopped the two men. After Freeman proved unable to describe the make, manufacturer, or description of what he claimed to be his own equipment and gave a false explanation why he was carrying the equipment around 4:30 a.m., Freeman was arrested for loitering and prowling. Id. at 967. He then was transported to the police station, where he was informed of his Miranda rights,4 and then gave a written statement to the officer. Id.
Freeman moved to suppress the fruits of the theft and the post-arrest statement on the ground there was no probable cause to support his arrest for loitering and prowling. We affirmed the trial court's denial of the motion, stating:
[W]hile the circumstances of this case and Freeman's behavior may not have been sufficient to support a loitering and prowling conviction, a crime for which he was neither tried nor convicted, they were more than adequate to support his arrest [for theft]. We therefore conclude that there was probable cause for the arrest and that Freeman's motion to suppress was properly denied.
Id. at 968 (footnote omitted).
Freeman, in turn, relies on Thomas. Thomas is factually indistinguishable from Freeman. Like Andrew Freeman, Andrew Thomas also was arrested for loitering and prowling. Thomas, 395 So. 2d at 280. A search of Thomas' person was conducted incident to that arrest. Thomas moved to suppress the fruits of a burglary found during the search. Id. Despite the fact the officers were of a mistaken and contrary belief at the time of the arrest, probable cause existed at the time of the search to arrest Thomas for the crime of burglary. Id. at 281. We affirmed the denial of the motion to suppress, stating, “Where, by objective standards, probable cause to arrest for a certain offense exists, the validity of an arrest does not turn on the fact that an arrest was effected on another charge.” Id. In the case before us, there was no arrest before Officer Lambert performed her search.
The police had every right to hold D.S. while they completed their investigation in this case. See State v. Reyes, 4 So. 3d 46, 48 (Fla. 3d DCA 2009) (discussing investigatory stops, during which an officer may temporarily detain an individual if the stop is supported by a reasonable suspicion that person committed, is committing, or is about to commit a crime) (citing Popple v. State, 626 So. 2d 185, 186 (Fla. 1993)). However, as the United States Supreme Court stated forty-five years ago in Sibron v. New York, 392 U.S. 40 (1968) -- the simultaneously issued, but lesser known cousin of Terry v. Ohio, 392 U.S. 1 (1968) -- absent an arrest, the officer “must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” Sibron, 392 U.S. at 64 (citing Terry v. Ohio, 392 U.S. at 21); Reyes, 4 So. 3d at 50; see also § 901.151(5), Fla. Stat (2009). There are no such facts to justify the search in this case. I know of no case that stands for the proposition an officer can search an individual simply because the individual is being placed in a police vehicle. See L.C. v. State, 23 So. 3d 1215, 1219 (Fla. 3d DCA 2009).
The trial court erred by refusing to suppress the marijuana found on D.S. in this case as fruit of an illegal search and seizure. See Wong Sun v. United States, 371 U.S. 471, 484 (1963). I agree the adjudication should be reversed.
__________________
(LAGOA, J. (dissenting).) Because I disagree with the majority's conclusion that there was no probable cause to arrest D.S., I respectfully dissent.
D.S. was arrested by Officer Collier for loitering and prowling and possession of marijuana. The petition charged him with possession of cannabis. His argument below, and on appeal, was that there was no probable cause to arrest him for loitering and prowling, and therefore, the search, which revealed the marijuana, was illegal.
In support of its reversal, the majority cites to cases from the Second District. This Court, however, is bound by its own precedent and both Freeman v. State, 909 So. 2d 965 (Fla. 3d DCA 2005), and Thomas v. State, 395 So. 2d 280, 280-281 (Fla. 3d DCA 1981), are directly applicable to this case. As this Court noted in Freeman, 909 So. 2d at 967-68:
In Thomas, arresting officers believed that the circumstances at the time of Thomas's arrest justified an arrest for loitering and prowling. Thomas maintained that an arrest on that charge was unlawful, and thus that the evidence obtained as a result of that arrest should be suppressed. We affirmed Thomas' conviction finding that there existed, notwithstanding the officers' mistaken and contrary belief, probable cause to arrest Thomas on a charge of burglary. Thus, we concluded that “[w]here, by objective standards, probable cause to arrest for a certain offense exists, the validity of an arrest does not turn on the fact that an arrest was effected on another charge.” Thomas, 395 So. 2d at 280-81 (citing Chaney v. State, 237 So. 2d 281 (Fla. 4th DCA 1970), and United States v. Ullrich, 580 F.2d 765 (5th Cir. 1978)). We went on to observe that “given the existence of probable cause to arrest Thomas for the offense of burglary, the validity of the search of Thomas is unaffected by the fact that the search preceded his formal arrest on that charge.” Thomas, 395 So. 2d at 281 (citing Rawlings v. Kentucky, 448 U.S. 98, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980), and Dixon v. State, 343 So. 2d 1345, 1347 n. 3 (Fla. 2d DCA 1977)); see also Blanding v. State, 446 So. 2d 1135, 1136 (Fla. 3d DCA 1984) (“[a]n arrest based on probable cause is not rendered unlawful because the arresting officer attaches an improper label to it”).
“Probable cause to arrest exists when the totality of the facts and circumstances within the officer's knowledge would cause a reasonable person to believe that an offense has been committed and that the defendant is the one who committed it. The facts constituting probable cause need not meet the standard of conclusiveness and probability required of the circumstantial facts upon which a conviction must be based. An officer is permitted to take a realistic view of the facts in making a probable cause determination, ‘for probable cause is a matter of practicalities, not technicalities.' ” State v. Cortez, 705 So. 2d 676, 678 (Fla. 3d DCA 1998) quoting State v. Russell, 659 So. 2d 465, 468 (Fla. 3d DCA 1995) (other citations omitted).
(Emphasis added). Therefore, even if no probable cause existed to arrest D.S. for loitering and prowling, as long as there was probable cause to arrest him on another charge, the search incident to arrest was lawful.5 See Lugo v. State, 992 So. 2d 415, 418 (Fla. 3d DCA 2008); State v. Orozco, 607 So. 2d 464, 465 n.1 (Fla. 3d DCA 1992).
Here, the officer who conducted the search, Officer Lambert, testified that she responded to the scene on a call for a burglary in progress, and that she saw D.S. being escorted out of the house. She testified that he was being detained in reference to the investigation of the call for a burglary in progress. The arresting officer, Officer Collier, testified that he responded to a burglary in progress. He also testified that when he arrived at the scene he spoke to a witness who observed D.S. and two others breaking down the door to the home in which he was found by police officers. It is undisputed that D.S. was found inside the home. Given this testimony, there was probable cause to arrest him for burglary. See State v. Clark, 721 So. 2d 1202 (Fla. 3d DCA 1998); Brescher v. Pirez, 696 So. 2d 370 (Fla. 4th DCA 1997); State v. Cote, 547 So. 2d 993 (Fla. 4th DCA 1989); McKee v. State, 430 So. 2d 983 (Fla. 3d DCA 1983). Accordingly, the fact that he was arrested for loitering and prowling does not render the search incident to arrest unlawful.
I would affirm.
__________________
1Miranda v. Arizona, 384 U.S. 436 (1966).
2The record indicates that D.S. may have been in handcuffs at the time.
3Officer Collier misspoke when he stated earlier in his testimony that Officer Lambert “patted him down.” Officer Lambert testified consistently during the course of her testimony that she “searched” D.S.
4Miranda v. Arizona, 384 U.S. 436 (1966).
5Not only is this Court bound by its own precedent of Freeman and Thomas, but neither case relied upon by the majority is applicable to the case at hand. The majority's reliance on D.B.A. is misplaced because this case does not concern a temporary stop or detention pursuant to the Stop and Frisk Law, but rather, was a search incident to arrest. See Thomas, 395 So. 2d at 281. T.L.F. is also not applicable because in that case the robbery occurred days before the defendant's arrest, 536 So. 2d at 372, unlike here, where an eyewitness observed and reported D.S. breaking down the door to the home in which he was found.
If you are arrested in Fort Lauderdale and need a Criminal Lawyer, contact The Law Office of Roger P. Foley at (954) 467-2946
If you need a Criminal Defense Lawyer in West Palm Beach, contact The Law Office of Roger P. Foley at (561) 746-7076
Mr. Foley is available to lecture at your High School and/or College University regarding Your Legal Rights When Dealing With Police. Contact him at the above referenced numbers for more information.
Arrested for Possession of Marijuana in Fort Lauderdale?
Arrested for Possession of Marijuana in West Palm Beach?
Know Your Legal Rights When Dealing With Police in Florida.
Can the police search me whenever they want?
The answer is NO.
The police are allowed to search you for weapons only, and only if, they have a reasonable suspicion to believe you may be carrying a weapon. If the police feel something that they reasonably believe to be a weapon they may retrieve it from your pockets or waistband. This is permitted for a Police Officer’s Safety. The police cannot go into your pockets for anything else.
For example, if you are walking home from school and a police officer stops you and requests to search your person then you should politely respond, “ I do not consent to searches.” If the officer feels that safety is an issue, and they will always say that safety is an issue, they will pat you down. A “pat down” means they can feel the outside of your clothing for any weapons. If they feel something that is not a weapon and tell you to remove the item you must repeat the magic words, “no, I do not consent to searches” because if you remove the item from your pocket and it is something illegal you will be arrested. If the police go into your pocket and remove it without probable cause to arrest that is illegal. If you are illegally searched and arrested then your criminal defense lawyer will be able to file a motion to suppress the evidence and possibly dismiss the criminal case.
Please remember never touch or pull away from a police officer, as your problems will greatly increase. Simply, repeat the magic words, “Officer, I do not consent to searches” and repeat several times if they don’t listen. Never volunteer information to a police officer. The only thing you should supply them with is your name. Your constitutional rights are solid and they say that you don’t need to talk to the police. So do not talk to them. Do not tell them where you are going, what you have been doing or your reason to be at your current location as it is none of their business. If you feel you need to answer a question, think twice. The police are paid to arrest people. Everything you say will be used against you. If a police officer asks me why I am at a particular location I say, “personal business.” That is sufficient. You do not need to answer their questions-respectfully decline to answer questions.
If you have been arrested then the police are allowed to fully search you after you are arrested. They can search your pockets, and belongings that you are carrying, etc. If arrested, remain silent and never pull away or touch a police officer or it will only get worse. Remain silent and request a lawyer. The wait is long when you are arrested but remain silent as eventually you will have a lawyer and your lawyer will fight your fight, not you. If you fight or argue with police they will add additional charges-remain silent except when asking for a lawyer. Asking police officers questions can waive your constitutional rights. Police are arresting you so do you really think they are your friend? Common sense tells you that they are not and the Florida Supreme Court has ruled that police officers are allowed to lie to suspects during their investigation. Expect everything they say to be a potential lie. Remain Silent!
The case below involves a juvenile in Miami-Dade County that was being investigated for a burglary and was being detained temporally by police. At the time, the police officer detained him, there was not sufficient probable cause to arrest him and the police were only allowed to pat him down for weapons. The police in this case searched his pockets and found marijuana. The search was deemed illegal by the District Court of Appeal because the juvenile had not been arrested and they had no reason to search him other than to pat him down for weapons.
Note: Although the case was decided in Miami-Dade County, the law is the same throughout Florida. Yes, there are different District Courts of Appeal (Appellate Courts) and sometimes they reach different conclusions, but if, and when that happens, there are often distinguishing factual differences that explain the different rulings. If two or more District Courts of Appeal give conflicting conclusions on the same issue the case is sent to the Florida Supreme Court for a defining answer.
Check out the case below to understand the Court’s logic and why the search was illegal.
D.S., A JUVENILE, Appellant, vs. THE STATE OF FLORIDA, Appellee. 3rd District. Case No. 3D09-2558. L.T. Case No. 09-2521-A. Opinion filed April 11, 2012. An Appeal from the Circuit Court for Miami-Dade County, Mindy S. Glazer, Judge. Counsel: Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant. Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
(Before SHEPHERD, SUAREZ, and LAGOA, JJ.)
(SUAREZ, J.) D.S., a minor, appeals from a withhold of adjudication of delinquency entered following an adjudicatory hearing. We reverse, as the trial court should have granted the motion to suppress filed by D.S.
D.S. was detained, along with other persons, on suspicion of burglary. He was later arrested for loitering and prowling and for suspected marijuana. He was not under arrest at the time another officer brought D.S. to Officer Lambert, who understood that she was merely detaining him while the other officers finished their investigation. Officer Lambert proceeded to fully search D.S., not pat him down, prior to placing him in her squad car to await the outcome of the investigation. She did not read him his Miranda1 rights, she did not see any bulges that might give her probable cause to search.2 She testified that she routinely searches suspects prior to placing them in her vehicle as a safety precaution. Upon fully searching D.S., she discovered a baggie of marijuana and at that point she arrested him.
The trial court erroneously denied D.S.'s motion to suppress. D.S. was not under arrest at the time of the search, he was merely detained and awaiting the conclusion of the officers' investigation into the burglary call. Officer Lambert's search of D.S. exceeded her authority where there was no reasonable suspicion to believe D.S. was armed and dangerous, and he had not yet been arrested. See D.B.A. v. State, 962 So. 2d 406 (Fla. 2d DCA 2007) (holding that The Florida Stop and Frisk Law authorizes a limited search to disclose a dangerous weapon where an officer has probable cause to believe that the detainee is armed with a dangerous weapon, that search may not go beyond a pat down of the detainee's outer clothing, and only if an officer reasonably believes that an object he feels during a pat down is a weapon may he seize the object) (citations omitted). We agree with the holding in T.L.F. v. State, 536 So. 2d 371, 372 (Fla. 2d DCA 1988), which provides that:
Under the circumstances of this case, an arrest would only have been appropriate if probable cause had existed to arrest appellant for the burglary. The police cannot be allowed to use the loitering and prowling statute to detain an individual for another offense for which probable cause is lacking and then use the fruits of the unlawful detention as evidence that the individual committed the other offense. . . . To allow such “bootstrapping” of evidence would lead back to the dark ages when police were able to use the loitering and prowling statute as a catchall charge to arrest persons at their whim.
We conclude that the order denying the motion to suppress should have been granted and accordingly, we reverse D.S.'s adjudication of delinquency and remand with directions that he be discharged.
Reversed and remanded with directions.
__________________
(SHEPHERD, J., concurring specially.) If the facts were as the State and the dissent propose, I would agree the adjudication should be upheld. But, they are not, so I cannot. The State argues, and the dissent accepts, that D.S. was searched incident to an arrest. However, the record reflects D.S. was not under arrest for any crime -- loitering and prowling, burglary, or anything else -- at the time he was searched by Officer Lambert. The record tells the tale.
Officer Veronica Lambert
Officer Veronica Lambert testified she responded to a burglary in progress. She did not talk to any other officers about the investigation. Pursuant to protocol -- five police units already were on the scene -- she “just stayed off” from the house. Although she did not have a clear view of the house, she saw D.S. emerge from the house with an officer escort. The officer brought D.S. to her to hold him pending completion of the investigation. There were no bulges or other evidence of a dangerous weapon on his person.
As even the dissent acknowledges, at that time, “[D.S.] was being detained” by Officer Lambert in “reference an investigation.” See dissent p. 17. He was not arrested. The search occurred before any arrest. This fact is unambiguously confirmed by Officer Lambert in her testimony:
Q When you came in contact with D.S., why was that?
A Well originally he was one of the suspects that were taken out of the house.
Normally what they do in a situation where you have a burglary in progress, if there's numerous suspects we like to keep them separate.
. . . .
We want to keep them separate so that they don't come up with a collaborated story.
I received one suspect, and the other ones were separated.
Q Did you go up to D.S., or did another officer bring D.S. to you?
A He was brought to me.
Q Okay, but did you see him coming from the vicinity of the house?
A Yes.
Q Is that the house where the burglary in progress was reported?
A Yes.
Q Okay. Now, when you came in contact with D.S., what did you do next?
A I know that he was searched because I had to put him in my vehicle. But I don't recall if I put handcuffs on or if they were already on. I don't recall that part of it, but I know that I did search him because he was going into my vehicle.
Q Now why exactly did you search him because he was going into your vehicle?
A That's something that we do for officer safety. It's an officer safety issue. Just to make sure there's nothing that will harm me, or harm him[ ], or anything like that.
Q Do you do it every time you arrest somebody?
A Absolutely.
Q And do you -
A Arrest, detain, it doesn't matter. For whatever reason.
Q Upon searching the Defendant did you find anything?
A Yes.
Q What did you find?
A A bag of marijuana, suspect marijuana.
. . . .
(emphasis added.)
On cross-examination, Officer Lambert again confirmed D.S. was not arrested when he was brought to her:
Q Was he arrested when he was brought to you?
A Well, I mean at that time he would have been detained.
Q Okay.
A Okay?
Q When you made contact with D.S., did you read him Miranda?
A No, I did not.
Q Did you ever ask him any questions as to why he was in the house?
A No ma'am.
Q Did you subsequently arrest him?
A I'm sorry?
Q You said when he was brought out to you he was detained?
A Right.
Q Then, you thereafter arrested him?
A Right. After the marijuana was found on his person.
Q Okay, but prior to that was there a basis to arrest him?
A Well, as far as the other officers that brought him out of the house, no. As far as I'm concerned with that, he was being detained by me in reference to them finishing their investigation.
(emphasis added).
The final confirmation of this fact occurred on redirect examination with the following colloquy:
Q Okay, so do you know if the officers who handed him off to you, if they were arresting him for anything, including loitering and prowling? Or burglary, or -
A Yes. It wasn't like a hold to identify. It was based on him being held pending investigation and getting information to charge him with, whatever charges, whether it be L and P, or burglary, or whatever the case was.
Q But ultimately there had already been a decision that he -
A Right.
Q -- should be detained?
A Right.
Officer Anthony Collier
Officer Collier arrived on the scene after Officer Lambert. Officer Collier testified as follows:
Q Upon arrival who did you make contact with?
A Upon arrival I made contact with D.S., the Defendant.
Q What did you do in the course of your investigation?
A I believe Officer Veronica Lambert was dealing with him, gathering some information from him. At that point, I took possession of him.
Q You said that you responded to a burglary in progress. Did you make contact with any officers on scene that had previously responded?
A Officer Lambert.
Q What was the nature of Officer Lambert's investigation?
A She explained to me that she had detained the Defendant, and she patted him down, and she was able to retrieve a baggy of suspected marijuana from his right front pocket.
Q Were you investigating any other charges on scene?
A Yes, I was.
Q What other charge were you investigating?
A Loitering and prowling.
Q Did you speak with anyone regarding the loitering and prowling?
A Yes, I did.
Q Who did you speak to?
A . . . Officer Lambert.
Q What were the results of Officer Lambert's investigation?
A She advised me that there were some other officers that responded to the scene as well, and that upon getting there they discovered the Defendant somewhere inside of the home.
. . . .
Q [W]as the homeowner inside the home?
A The homeowner wasn't inside the home, but I spoke to a witness who was on the scene.
. . . .
Q What did [the witness] tell you he observed?
A He told me he was visiting a resident at 2515 Northwest 158 Street, and he observed three black male defendants breaking down the door of the home.
Q Did he tell you that the Respondent was one of those individuals he observed?
A Yes.
Q Based on your investigation on the scene, did you make a determination as to probable cause?
A Yes, of course.
Q What was that determination?
A Based on the burglary in progress that I responded to.
Q What was the Respondent arrested for?
. . . .
A The arrest was for loitering and prowling, and for suspected marijuana.
(emphasis added).
On cross-examination, Officer Collier stated D.S. was “detained” when he arrived on the scene.3 He confirmed he arrested D.S. for loitering and prowling based on what fellow officers told him, since “[t]hey're officers just like me.”
Analysis
The State's position during the hearing on the motion to suppress was that “[t]his was a search incident to arrest.” However, there can be only one conclusion drawn from the actual testimony: D.S. was not placed under arrest until after he was searched. It might have been that D.S. could have been arrested before the search, but, we, of course, must deal with the arrest we have, not the arrest we wish we had. As the Oregon Supreme Court has explained:
[A]n arrest is the crux of a “search-incident-to-arrest.” By definition a search ‘incident to' an arrest is a warrantless search that is justified by the fact that a suspect is arrested. The justification arises from the practical consequences of taking a person into custody, and it cannot extend beyond those practical consequences if the fact of the arrest is its premise.
State v. Owens, 729 P.2d 524, 533 (Or. 1986) (en banc) (quoting State v. Brown, 721 P.2d 1357, 1370 (Or. 1986)).
The dissent urges that two cases from this court, Freeman v. State, 909 So. 2d 965 (Fla. 3d DCA 2005), and Thomas v. State, 395 So. 2d 280 (Fla. 3d DCA 1981), require affirmance. However, in each case, the arrest preceded the search. Also in each case, the defendant argued the arrest was made on an unlawful charge and the search therefore was illegal. We held the searches nevertheless were lawful because in each case there was probable cause to arrest the defendant on another charge. In other words, the justification for the exception to the warrant requirement still applied.
For example, in Freeman, the defendant, Andrew Freeman, and another man were stopped at 4:30 a.m., carrying a large commercial-grade chain saw, a gas-powered weed whacker, a hedge trimmer, and two leaf blowers. Freeman, 909 So. 2d at 966. Freeman also was towing another bicycle alongside the one he was riding. Id. Noticing the substantial amount of lawn equipment and extra bicycle being carried by Freeman, Officer Brad Taylor, aware of a recent rash of lawn tool thefts from garages and lawn sheds in the vicinity, stopped the two men. After Freeman proved unable to describe the make, manufacturer, or description of what he claimed to be his own equipment and gave a false explanation why he was carrying the equipment around 4:30 a.m., Freeman was arrested for loitering and prowling. Id. at 967. He then was transported to the police station, where he was informed of his Miranda rights,4 and then gave a written statement to the officer. Id.
Freeman moved to suppress the fruits of the theft and the post-arrest statement on the ground there was no probable cause to support his arrest for loitering and prowling. We affirmed the trial court's denial of the motion, stating:
[W]hile the circumstances of this case and Freeman's behavior may not have been sufficient to support a loitering and prowling conviction, a crime for which he was neither tried nor convicted, they were more than adequate to support his arrest [for theft]. We therefore conclude that there was probable cause for the arrest and that Freeman's motion to suppress was properly denied.
Id. at 968 (footnote omitted).
Freeman, in turn, relies on Thomas. Thomas is factually indistinguishable from Freeman. Like Andrew Freeman, Andrew Thomas also was arrested for loitering and prowling. Thomas, 395 So. 2d at 280. A search of Thomas' person was conducted incident to that arrest. Thomas moved to suppress the fruits of a burglary found during the search. Id. Despite the fact the officers were of a mistaken and contrary belief at the time of the arrest, probable cause existed at the time of the search to arrest Thomas for the crime of burglary. Id. at 281. We affirmed the denial of the motion to suppress, stating, “Where, by objective standards, probable cause to arrest for a certain offense exists, the validity of an arrest does not turn on the fact that an arrest was effected on another charge.” Id. In the case before us, there was no arrest before Officer Lambert performed her search.
The police had every right to hold D.S. while they completed their investigation in this case. See State v. Reyes, 4 So. 3d 46, 48 (Fla. 3d DCA 2009) (discussing investigatory stops, during which an officer may temporarily detain an individual if the stop is supported by a reasonable suspicion that person committed, is committing, or is about to commit a crime) (citing Popple v. State, 626 So. 2d 185, 186 (Fla. 1993)). However, as the United States Supreme Court stated forty-five years ago in Sibron v. New York, 392 U.S. 40 (1968) -- the simultaneously issued, but lesser known cousin of Terry v. Ohio, 392 U.S. 1 (1968) -- absent an arrest, the officer “must be able to point to particular facts from which he reasonably inferred that the individual was armed and dangerous.” Sibron, 392 U.S. at 64 (citing Terry v. Ohio, 392 U.S. at 21); Reyes, 4 So. 3d at 50; see also § 901.151(5), Fla. Stat (2009). There are no such facts to justify the search in this case. I know of no case that stands for the proposition an officer can search an individual simply because the individual is being placed in a police vehicle. See L.C. v. State, 23 So. 3d 1215, 1219 (Fla. 3d DCA 2009).
The trial court erred by refusing to suppress the marijuana found on D.S. in this case as fruit of an illegal search and seizure. See Wong Sun v. United States, 371 U.S. 471, 484 (1963). I agree the adjudication should be reversed.
__________________
(LAGOA, J. (dissenting).) Because I disagree with the majority's conclusion that there was no probable cause to arrest D.S., I respectfully dissent.
D.S. was arrested by Officer Collier for loitering and prowling and possession of marijuana. The petition charged him with possession of cannabis. His argument below, and on appeal, was that there was no probable cause to arrest him for loitering and prowling, and therefore, the search, which revealed the marijuana, was illegal.
In support of its reversal, the majority cites to cases from the Second District. This Court, however, is bound by its own precedent and both Freeman v. State, 909 So. 2d 965 (Fla. 3d DCA 2005), and Thomas v. State, 395 So. 2d 280, 280-281 (Fla. 3d DCA 1981), are directly applicable to this case. As this Court noted in Freeman, 909 So. 2d at 967-68:
In Thomas, arresting officers believed that the circumstances at the time of Thomas's arrest justified an arrest for loitering and prowling. Thomas maintained that an arrest on that charge was unlawful, and thus that the evidence obtained as a result of that arrest should be suppressed. We affirmed Thomas' conviction finding that there existed, notwithstanding the officers' mistaken and contrary belief, probable cause to arrest Thomas on a charge of burglary. Thus, we concluded that “[w]here, by objective standards, probable cause to arrest for a certain offense exists, the validity of an arrest does not turn on the fact that an arrest was effected on another charge.” Thomas, 395 So. 2d at 280-81 (citing Chaney v. State, 237 So. 2d 281 (Fla. 4th DCA 1970), and United States v. Ullrich, 580 F.2d 765 (5th Cir. 1978)). We went on to observe that “given the existence of probable cause to arrest Thomas for the offense of burglary, the validity of the search of Thomas is unaffected by the fact that the search preceded his formal arrest on that charge.” Thomas, 395 So. 2d at 281 (citing Rawlings v. Kentucky, 448 U.S. 98, 100 S. Ct. 2556, 65 L. Ed. 2d 633 (1980), and Dixon v. State, 343 So. 2d 1345, 1347 n. 3 (Fla. 2d DCA 1977)); see also Blanding v. State, 446 So. 2d 1135, 1136 (Fla. 3d DCA 1984) (“[a]n arrest based on probable cause is not rendered unlawful because the arresting officer attaches an improper label to it”).
“Probable cause to arrest exists when the totality of the facts and circumstances within the officer's knowledge would cause a reasonable person to believe that an offense has been committed and that the defendant is the one who committed it. The facts constituting probable cause need not meet the standard of conclusiveness and probability required of the circumstantial facts upon which a conviction must be based. An officer is permitted to take a realistic view of the facts in making a probable cause determination, ‘for probable cause is a matter of practicalities, not technicalities.' ” State v. Cortez, 705 So. 2d 676, 678 (Fla. 3d DCA 1998) quoting State v. Russell, 659 So. 2d 465, 468 (Fla. 3d DCA 1995) (other citations omitted).
(Emphasis added). Therefore, even if no probable cause existed to arrest D.S. for loitering and prowling, as long as there was probable cause to arrest him on another charge, the search incident to arrest was lawful.5 See Lugo v. State, 992 So. 2d 415, 418 (Fla. 3d DCA 2008); State v. Orozco, 607 So. 2d 464, 465 n.1 (Fla. 3d DCA 1992).
Here, the officer who conducted the search, Officer Lambert, testified that she responded to the scene on a call for a burglary in progress, and that she saw D.S. being escorted out of the house. She testified that he was being detained in reference to the investigation of the call for a burglary in progress. The arresting officer, Officer Collier, testified that he responded to a burglary in progress. He also testified that when he arrived at the scene he spoke to a witness who observed D.S. and two others breaking down the door to the home in which he was found by police officers. It is undisputed that D.S. was found inside the home. Given this testimony, there was probable cause to arrest him for burglary. See State v. Clark, 721 So. 2d 1202 (Fla. 3d DCA 1998); Brescher v. Pirez, 696 So. 2d 370 (Fla. 4th DCA 1997); State v. Cote, 547 So. 2d 993 (Fla. 4th DCA 1989); McKee v. State, 430 So. 2d 983 (Fla. 3d DCA 1983). Accordingly, the fact that he was arrested for loitering and prowling does not render the search incident to arrest unlawful.
I would affirm.
__________________
1Miranda v. Arizona, 384 U.S. 436 (1966).
2The record indicates that D.S. may have been in handcuffs at the time.
3Officer Collier misspoke when he stated earlier in his testimony that Officer Lambert “patted him down.” Officer Lambert testified consistently during the course of her testimony that she “searched” D.S.
4Miranda v. Arizona, 384 U.S. 436 (1966).
5Not only is this Court bound by its own precedent of Freeman and Thomas, but neither case relied upon by the majority is applicable to the case at hand. The majority's reliance on D.B.A. is misplaced because this case does not concern a temporary stop or detention pursuant to the Stop and Frisk Law, but rather, was a search incident to arrest. See Thomas, 395 So. 2d at 281. T.L.F. is also not applicable because in that case the robbery occurred days before the defendant's arrest, 536 So. 2d at 372, unlike here, where an eyewitness observed and reported D.S. breaking down the door to the home in which he was found.
If you are arrested in Fort Lauderdale and need a Criminal Lawyer, contact The Law Office of Roger P. Foley at (954) 467-2946
If you need a Criminal Defense Lawyer in West Palm Beach, contact The Law Office of Roger P. Foley at (561) 746-7076
Mr. Foley is available to lecture at your High School and/or College University regarding Your Legal Rights When Dealing With Police. Contact him at the above referenced numbers for more information.
Hatfields and McCoys
GUEST POST BY GUEST BLOGGER!
I don't run.
But I love a good fight that consumes precious limited judicial resources, has zero impact on the greater good and establishes no precedential value, as much as the next civil litigator.
That's obviously not this case in which, as you may recall, for 8 years
Right.
Kuvin earned his J.D. during the litigation and like most succesful lawyers today with busy practices, started a blog to further his pick up litigation.
Cursing the PCA opinion from the bunker? Or the denial of cert from Tally? This case had the en banc Third reverse a panel of that Court, and the F.S.C. weighed in. An issue of great pubic importance or statutory interpretation, indeed.
I guess the blog worked. After the expenditure of resources by both sides to press on with the epic 8 year legal battle, spent from battle, The Planning and Zoning Board is changing course. Sort of. The proposed law has many "details," to wit:
- The pickup can’t have more than two axles and four wheels. (We call those "duelies".)
- No Gunracks allowed.
- No women may be in or around the truck, while wearing "short-shorts".
- No chewing tobacco while driving the truck.
- Only the front of the pickup can face the street. (I have a real problem with this one, as sometimes its easier to have the rear out.)
Personally, since my practice is slow, I am considering a push to permit mailboxes held by grey, chubby, lifesize manatees and the like. I figure that as long as we don't allow The Rock and Roll into The Gables, we should be ok.
Corporate Run, Rabbit, Run!
Do you want to know what your boss looks like in compression shorts?
Are you dying to learn whether senior executive sweat pools in the upper or lower back?
If so join me and 22,000 other fitness-minded professionals as we create massive gridlock, kill all productivity across the city, run around downtown in a giant circle, and finish by entering something called "the chute."
(I assume that's a euphemism?)
Like all of you I have my standard pre-race rituals -- the Gin Gibson water bottle (to induce the burpees), the full bikini wax (to increase speed), the autographed photo iron-on tee shirt of the entire cast of Carter Country (for inspiration, 'natch!).
"Handle it, Roy, handle it!"
Have fun kids, and see you at the whole-wheat bolognese tent!
Thứ Tư, 25 tháng 4, 2012
Fourth District Court finds Latent Ambiguity in MSA
The Fourth District Court of Appeal ruled today in two consolidated appeals in Riera v. Riera, a case in which the Former Husband was held in contempt below and ordered incarcerated unless a purge was paid for non-payment of college tuition. The District Court found that, because the Former Husband claimed it was his understanding that the child would attend a Florida public university, there was a latent ambiguity in the parties’ Marital Settlement Agreement. In other words, while the words of the agreement were clear, they failed to address the obligations of the parties in certain situations. The Court also found error in the lower court’s issuing a contempt order for a contractual obligation to pay college expenses, and for failing to make a finding of an affirmative ability to pay the purge amount. Senior Judge Schwartz concurred in the Court’s determination that contempt is not an available sanction for non-payment of contractual college expenses, but not with the Court’s finding of a latent ambiguity. Senior Judge Schwartz found the contract unambiguous and felt it covered all circumstances.
3d DCA Watch -- Little Victories, Or a Tale of Two Judges.
You think it's hard for practitioners to make sense of Florida law sometimes, well it's not so easy for our appellate judges either.
Consider Judges Ramirez and Shepherd.
They both have Fidelity-Philadelphia Trust Co. v. Ball, 208 So. 2d 282 (Fla. 3d DCA 1968) as potential authority in a case where two Co-Trustees paid their own fees without court approval from the trust, leaving inadequate funds in the trust to pay an award of fees to the Beneficiary's counsel, after a full trial in which the Beneficiary prevailed.
The issue is whether the Beneficiary should have filed a separate suit against the Co-Trustees for breach of fiduciary duty and served them in their individual capacity.
Judge Ramirez in a concurrence finds that Fidelity is "totally different," while Judge Shepherd finds "the facts of Fidelity to be indistinguishable from the facts of the case before us."
Huh?
How can it be both?
I guess that's why we have appellate courts.
South Florida Coastal Elec. v. Treasures on the Bay:
Here Judges Ramirez and Lagoa disagree on whether the defendant injected "agency" as an issue in a breach of contract claim by asserting a"vague" affirmative defense.
Huh?
Gotta love state court.
Geico v. Virtual Imaging:
Judge Rothenberg continues her dissent from Geico I involving how PIP insurers should treat the fee schedule in paying reasonable expenses for medical claims, and they all certify the following super important very important muy importante question to the wise elders in Tally:
WITH RESPECT TO PIP POLICIES ISSUED AFTER JANUARY 1, 2008, MAY THE INSURER COMPUTE PROVIDER REIMBURSEMENTS BASED ON THE FEE SCHEDULES IDENTIFIED IN SECTION 627.736(5)(a), FLORIDA STATUTES, EVEN IF THE POLICY DOES NOT CONTAIN A PROVISION SPECIFICALLY ELECTING THOSE SCHEDULES RATHER THAN “REASONABLE MEDICAL EXPENSES” COVERAGE BASED ON SECTION 627.736(1)(a)?Why is it still the convention to "all cap" questions certified to the Supremes -- will they not see it otherwise?
Little victories.....
Thứ Ba, 24 tháng 4, 2012
Gaze Upon Your 3d DCA Applicants!
Not to get all Captain-ey, but here's a list of people who want to imbibe the bunker juice:
Honorable Antonio ArzolaHey, not a bad list!
Andrew Scott Berman, Esq.
Jonathan D. Colan, Esq.
Honorable Jorge E. Cueto
Esther E. Galicia, Esq.
Sergio Garcia-Pages, Esq.
Honorable Darrin P. Gayles
John A. Greco, Esq.
Honorable Milton Hirsch
Judith M. Korchin, Esq.
Susan Scrivani Lerner, Esq.
Thomas W. Logue, Esq.
Madelyn Simon Lozano, Esq.
Charles Mays, Esq.
Honorable Jose M. Rodriguez
Eduardo I. Sanchez, Esq.
Honorable George Alexander Sarduy
Edwin A. Scales, III, Esq.
Ann M. St. Peter-Griffith, Esq.
Steven E. Stark, Esq.
For some reason this song just popped into my head (where's Judge Goodman when you need him?):
Glenn Squared -- The Apocalypse is Officially Here.
What does it mean when the ideologically separated-at-birth brothers Glenn -- Garvin and Greenwald -- both agree that our government's inhuman drone war is, well, inhumane and spinning out of control?
Maybe that third-way consensus business Thomas Friedman is always prattling on about has some merit?
"I'm sorry Dave. I'm afraid I can't do that."
In other news, Rumpy and Random Pixels report that somebody tweeted something.
What am I missing -- if it wasn't about the trial, where's the harm?
BTW, I just had the pleasure of seeing Square Grouper, Rakantur's riotous look at Miami's drug culture in the late 70s-early 80s.
Brings back those burned-out-Porsche memories....
PS -- lots of good stuff in there (some of it negative) about Judge King's lengthy sentencing of Robert Platshorn of the Black Tuna Gang.
C'mon kids -- what else is happening?
Thứ Hai, 23 tháng 4, 2012
You Mean There Are Deadlines in that Mag's Scheduling Order?
When Magistrate Judge Simonton enters a Scheduling Order that has language that is both bolded and underlined, does that mean anyone should really pay any attention to it?
I certainly don't think so:
The Order Setting Trial and Pre-Trial Schedule (DE # 11, the “Scheduling Order”) entered in this case establishes expedited procedures with respect to discovery motions. This requirement is set forth in bold and underlined at page three of the Scheduling Order.Ok ok, but my office staff screwed it up:
First, defense counsel in the Verified Motion has attributed his failure to comply with the bold and underlined briefing requirements in the Court’s four-page Scheduling Order to his lack of knowledge of its contents, and otherwise points to clerical staff in his office as the responsible parties. The Verified Motion states that the Court’s briefing requirements were “never documented. This resulted in [defense counsel] being unaware that an expedited response to Plaintiff’s discovery motion was required” (DE # 25 at 4-5) (emphasis added). This statement is, at best, discouraging; counsel states that he had no knowledge of the Court’s deadlines because others in his office failed to properly review and summarize the Scheduling Order for him.Ok ok ok, so maybe I should have read the darned thing too.
But what about the fact that CM/ECF spit out a different deadline?
That's gotta mean something!
Moreover, the undersigned rejects out-of-hand Defendant’s secondary explanation that CM/ECF had generated a later due date for the response to Plaintiff’s Expedited Motion to Compel, which Defendant attaches as Exhibit 1 to its Verified Motion. In this respect, the undersigned observes, in the same bold and highlighted paragraph on page three of the Scheduling Order containing the briefing requirements, the immediately concluding sentence, which states, “Any contrary deadlines that may appear on the Court’s docket or the attorneys’ deadline report, generated by CM/ECF, cannot serve to modify this Order” (DE # 11 at 3).Oh boy.
Thứ Sáu, 20 tháng 4, 2012
Can You Sue Your Bank for Failure to Offer Loan Modifications?
A question of first impression before the 11th Circuit is whether a borrower can sue her bank for failure to offer a loan modification in violation of the much-publicized federal mortgage relief programs passed in the midst of the 2008 economic crisis, the Home Affordable Modification Program (HAMP) and the Emergency Economic Stabilization Act of 2008 (EESA).
Short answer: NO:
When we apply these factors to HAMP and EESA, it is clear that no implied right of action exists. First, EESA and HAMP were designed to “provide authority and facilities that the Secretary of the Treasury can use to restore liquidity and stability to the financial system of the United States.” 12 U.S.C. § 5201(1). EESA was not passed for the “especial benefit” of struggling homeowners, even though they may benefit from HAMP’s incentives to loan servicers.So that's pretty much the end of that.
Second, there is no discernible legislative intent to create a private right of action; in fact, the legislature gave the Secretary the right to initiate a cause of action, via the Administrative Procedure Act. Id. § 5229(a)(1). Third, providing a private right of action against mortgage servicers contravenes the purpose of HAMP—to encourage servicers to modify loans —because it would likely chill servicer participation based on fear of exposure to litigation. And fourth, “[c]ontract and real property law are traditionally the domain of state law.” Fid. Fed. Sav. & Loan Ass’n v. de la Cuesta, 458 U.S. 141, 174 (1982).
(Or maybe the banks will magically comply with the law?)
Friday blog bonus--read Roy Black's bond motion in the John Goodman DUI manslaughter case!
Thứ Năm, 19 tháng 4, 2012
Tampa United States Attorney - Office
Finished another Criminal Defense morning at the United States Attorney's Office Building in the Middle District of Florida - Tampa Division in Florida.
400 N Tampa St, Tampa, FL 33602, USA
400 N Tampa St, Tampa, FL 33602, USA
Help Need Here? Call Casey 813-222-2220 .
"Nobody Threatens Elizabeth Wellborn."
That's what her husband allegedly said to employees wearing orange who were all fired at WPB attorney Elizabeth Wellborn's foreclosure shop, according to John Pacenti's fine reporting here.
I don't know what the problem was -- it certainly seems like a humanistic, loving work environment according to Donna Ballman, counsel for some of the fired employees:
Ballman said some of the fired employees were upset with policies such as no talking over cubicle walls even for business purposes. Workers suddenly had to explain why they were using the breakroom or if they worked one minute overtime or left one minute early.And at least there is some sense of regret over how things could have been handled differently:
"It was a lot of picayune stuff," Ballman said. "All of sudden, the firm went from a very pleasant and enjoyable place to one of very strict working conditions."
"I wish former employees had not engaged in harassing, bullying and intimidating behavior. Then we would not have had to let them go."Good thing the work itself is so enriching and life-affirming!
(PS -- I don't know for sure, but they may be hiring.)
Fourth District Reverses Alimony Award
The Fourth District Court reversed yesterday in Galstyan v. Galstyan, in so doing finding error with the lower tribunal’s award of alimony without findings regarding the Husband’s income, as well as the adoption of a repayment plan without findings as to the Husband’s income, the award of life insurance and a bond both to secure the alimony awarded, and the failure of the Court to make specific findings as to the impact of providing life insurance on the Husband’s finances and the appropriate tailoring of the life insurance requirement.
Thứ Tư, 18 tháng 4, 2012
3d DCA Watch -- Welcome to BIB!
The short-sleeved robes are out at the bunker, heralding the cyclical change in bunker seasons typically running from mid April until late this year when the mechanical closet/gym is transformed into the swanky, ultra-chic BIB (aka Bunker Ice Bar).
For those who have never been, BIB is an invitation-only, must-see sensory experience -- the ice sculpture of Judge Schwartz is reason enough to find a way in past the
Hmm, I'm seeing double already.....
Onward:
E&H Cruises v. Baker:
Venetian Salami, peoples!
Valesquez v. South Florida Federal Credit Union:
Judge Salter holds his nose and but otherwise affirms how a credit union "aggressively" went after the repossession of a couple's boat.
Deutsche Bank v. Cagigas:
How many times have we gone over the Kozel factors, trial judges?
Sheesh -- make the express findings before you dismiss a case as a sanction.
It's the least you could do (plus it's the law).
So the 11th Circuit Does Reverse Summary Judgments Sometimes.
We always hear about the abysmal reversal rate before the 11th Circuit, but miracles do happen, even when they involve our highly esteemed Chief Judge:
In a supplemental summary judgment order the district court held as a matter of law that the purchase price of LanBox was $450,000. In its analysis, the district court rejected LanLogistics’s argument that, under the reasoning in Pantry Pride Enterprises., Inc. v. Stop & Shop Cos., Inc., 806 F.2d 1227, 1231 (4th Cir. 1986), the determination of the purchase price of a company in a package purchase requires that the fair market value of the company be considered. We find the reasoning in Pantry Pride persuasive and the district court’s holding in error.
. . . .
Because the issue of LanBox’s purchase price was disputed and the fair market value of LanBox and the other companies in the package deal should have been considered, summary judgment was improper. By deciding the issue on summary judgment before LanLogistics had an opportunity to present evidence on the fair market value of the companies or possible tax incentives for its purchase price allocation, the district court prematurely decided a disputed issue of material fact. See Holly v. Clairson Indus., L.L.C., 492 F.3d 1247, 1264 (11th Cir. 2007).In other news, I know a lot of you are fitness enthusiasts and are gearing up for the Corporate Run next week, so here's another interesting charity race for a good cause -- see you there!
Plus tonight begins Holocaust Remembrance Day.
(Wow, those three things do not go together.)
Thứ Ba, 17 tháng 4, 2012
When Is a "Shotgun Pleading" Not a "Shotgun Pleading"?
According to Judge Marra, it's when the defendants can understand the claims made against them:
“Shotgun” pleadings are pleadings in which it is “virtually impossible to know which allegations of fact are intended to support which claim(s) for relief.” Anderson v. Dist. Bd. of Tr. of Cent. Florida Cmty. Coll., 77 F.3d 364, 366 (11th Cir.1996). The Court finds that the Complaint is not a shotgun pleading necessitating dismissal. Although each count of the Complaint does incorporate by reference all of the preceding allegations, the Court finds the claims are sufficiently definite to enable Defendants to know with what they are charged and to enable Defendants to respond to the allegations. The motion to dismiss the shotgun pleading is denied.Practitioners, why not just avoid this issue by not incorporating every prior allegation into each count?
Really, how hard is that?
In other news, as David reports, the Bar royally screwed up in how they characterized their "monitoring" of the "underlying proceedings" in a well-publicized case involving Lewis Tein.
Fortunately, I have obtained inside footage of the Bar grievance committee sessions, which seem to be unfolding in the usual manner:
My one piece of advice to these very good attorneys (not that they need any) -- get a mouthpiece/lawyer to do your talking on these types of matters, it's more effective that way.
Thứ Hai, 16 tháng 4, 2012
They Still Write Editorials?
I'm pretty sure that's what the interwebs need more of -- opinions.
Even so, this is a rare burst of clear-eyed advocacy from a Miami Herald editorial page often devoid of opinions worth discussing:
The commission should make smooth functioning of the court system a priority when it examines in detail the budget approved by the Legislature and sees what funds are available after the governor’s budget vetoes.Ok, I guess it's still kinda milquetoast but remember, we are talking about the Herald editorial page.
This, though, would be just a temporary patch. The bigger job is to put funding for the court clerks on a rational basis, one that complies with public expectation of good customer service at each court clerk’s office, litigants’ need for efficient handling of cases, and the constitution’s requirement of adequate financing.
In other news, can you believe an undocumented immigrant actually wants to practice law in Florida?
The horrors:
Can an immigrant without a green card get a Florida Bar card?
Aspiring lawyer Jose Godinez-Samperio, 25, a Tampa-area resident, is hoping the answer is yes.Certified Legal Legend Sandy D'Alemberte says yes:
A native of Mexico who entered the United States legally with his parents 16 years ago on a tourist visa, Godinez-Samperio is a graduate of the Florida State University College of Law, the valedictorian of the Armwood High School class of 2004, an Eagle Scout — and an undocumented immigrant.
That last quality may keep him from achieving his dream.
The Florida Board of Bar Examiners, which grants membership to the Bar, has asked the state Supreme Court to determine whether it can accept someone who is not in the country legally. The Supreme Court flagged the case as "high profile" last week.
"It is unfair to deny him the credentials he's earned," said D'Alemberte, noting that there's nothing in the "Rules of the Supreme Court Relating to Admissions to the Florida Bar" that requires applicants to prove their immigration status.Sandy is joined by former ABA Presidents Martha Barnett and Steve Zack.
In fact, D'Alemberte said, Godinez-Samperio has been candid about his status at every opportunity, disclosing it on college and law school applications (his application to law school included an essay titled "The Consequences of my Criminal Childhood," although being in the country illegally is a civil infraction, not a crime).
Other the other hand, there are these guys:
"No one who has shown this guy's level of contempt for American law should be practicing law," said William Gheen, president of Americans for Legal Immigration, a political action committee that opposes amnesty for undocumented immigrants.
Tom Fitton, president of the conservative watchdog group Judicial Watch, agreed.
"He can't practice as a lawyer," Fitton said. "He is not legally able to work in the United States. … It seems to me that it would be an absurdity to give him a Bar card at this point."Hmm, if "contempt for American law" was the standard I could think of quite a few lawyers and maybe a Supreme Court Justice or two that might fall afoul of that one.
But maybe I'm wrong.
As the old saying goes -- which side are you on?
Thứ Sáu, 13 tháng 4, 2012
Practitioner Discovery Tip: Your Discovery Objection is Meaningless (Shh, Don't Tell the Client).
We all know how it works when you get discovery from an opposing party: have your secretary pull up some form responses, start loading it up with objection after objection; make sure to object to the definitions and instructions; pretend you have no possible understanding of what is being asked for; parse every word of every request and tease out every available meaning, no matter how absurd, so you can object on vagueness grounds, and basically jerk the other side around, buy some time, and get them to "narrow" the requests so you can go through the whole process all over again.
Oh yeah -- then bill the client 12.2 hours.
Well, apparently Judge Rosenbaum thinks this kind of approach may be problematic:
Objections that state that a discovery request is “vague, overly broad, or unduly burdensome” are, standing alone, meaningless and do not comply with both the Local Rules and Rule 34’s requirement that objections contain a statement of reasons. See Pitts v. Francis, 2008 WL 2229524, *2 (N.D. Fla. May 28, 2008). A party objecting on these grounds must explain the specific and particular way in which a request is vague, overly broad, or unduly burdensome. In addition, claims of undue burden should be supported by a statement (generally an affidavit) with specific information demonstrating how the request is overly burdensome. See Benfatto v. Wachovia Bank, N.A., 2008 WL 4938418, *4 (S.D. Fla. Nov. 19, 2008) (citing Convertino v. U.S. Dep’t of Justice, 565 F. Supp. 2d 10, 14 (D.D.C. 2008)). Since Morgan has not indicated how Request 4 is overly broad or unduly burdensome and because she has further not provided any evidentiary support for her bald assertion of burdensomeness, the Court overrules Morgan’s objection in this regard and grants the Receiver’s Motion to Compel a complete response to Request 4.Nice job Judge!
(The Force is strong with this one.)
Thứ Năm, 12 tháng 4, 2012
Firm Obtains $12,695.00 Judgment against Wells Fargo
After winning yet another foreclosure action against Wells Fargo and their counsel, Florida Default Law Group, foreclosure defense attorney Richard Shuster has obtained a judgment for attorney’s fees and costs in the amount of $12,695.00. Homeowners should understand that hiring foreclosure attorneys who actually win cases as opposed to merely trying to slow a bank’s case down makes good financial sense. In a foreclosure case, when the bank or loan servicer loses the case the bank has to pay the homeowner’s attorney’s fees. Money from the judgment against Wells Fargo will reimburse legal expenses previously paid by the firm’s client.
Fighting cases to win, rather than to lose slowly requires more time and effort on the attorney’s part. Hiring a firm that attempts to win cases might cost a little more in the beginning but in cases where the homeowner wins their case and recovers fees from the bank and in many cases settled under favorable terms the investment in a sophisticated foreclosure defense pays off for the homeowner.
To review a redacted copy of the final judgment for attorney’s fees please click the link below.
About Shuster & Saben: Shuster and Saben, LLC knows the difference between real foreclosure defense and knee jerk stalling. Savvy homeowners in foreclosure who want more than a cookie cutter foreclosure delay can consult with one of our attorney’s for free. Since we regularly go to court on our client’s cases, we don’t take cases in Tampa or the Panhandle that are beyond the reach of our firms offices. We do accept cases from Miami to Jacksonville on the east coast and in Orange, Seminole, Collier and Lee counties. We know who the top foreclosure lawyers are in parts of the state where we do not practice and gladly make referrals. Thanks for reading our blog. We would love to put your case in a future post.
3d DCA Watch -- Engle Progeny Edition!
When does a "bad cough" trigger the statute of limitations in a post-Engle Florida tobacco case?
Never, says the 3d:
In the direct appeal, Ms. Frazier relies upon a carefully-protected record on the statute of limitations evidence and on the jury instruction and verdict forms. Regarding the evidence, and in particular the speculative, clear-in-hindsight-only testimony of Dr. Schroeder, Ms. Frazier sought and obtained an appropriate order in limine, and she objected as well. Dr. Schroeder could not and did not render competent testimony about what Ms. Frazier knew or might reasonably have known regarding the “manifestations” of her Engle-eligible COPD/emphysema and the causal relationship of those manifestations to the cigarettes produced by the appellees. He violated the order in limine as his testimony ventured into what was not “manifest” in 1986 and 1987, whether to Ms. Frazier or her treating physician. The manifestations of her COPD/emphysema did not begin, on this record, until 1991, a date within the statutory limitations period.Great opinion by Judge Salter!
Clark v. Bluewater Key:
Judge Shepherd dissents "en haec verba" -- hmm, not familiar with that term -- does he mean In-A-Gadda-Da-Vidda?
(Warning on the video -- you will never get those 17 minutes back!).
AJH Property v. SunTrust:
Big win for Jared Beck in reversing a Judge Bagley summary judgment!
In other news, CABA withdraws its sponsorship of Lawyer Appreciation Night at Marlins stadium.
Good and I agree -- it's difficult to appreciate most lawyers for even a minute, let alone a whole night.
Thứ Tư, 11 tháng 4, 2012
Pinellas County Sheriff Evidence Unit
 |
| Pinellas County Evidence Unit in Florida |
Crime scene evidence goes here for prosecution of cases by the Pinellas State Attorney's Office. Located across the street from the Courthouse and the jail.
Evidence Used Against You? Call Casey at 813-222-2220 .
Tramps Like Us, Baby We Were Born to Cite!
The big day is almost here, see you all at lunchtime:
LUNCHEON MEETING FEATURINGI'm sure the good Judge will point out that none other than Bobby D is the most-cited songwriter in legal opinions.
THE HONORABLE JONATHAN GOODMAN
Guest Speaker:
The Honorable Jonathan Goodman, United States Magistrate Judge,
will address the must-hear-this topic:
"Rock & Roll Music in Judicial Opinions"
When: Wednesday, April 11, 2012
11:45 a.m. - 1:15 p.m.
Where: The Bankers Club
One Biscayne Tower
2 South Biscayne Blvd., 14th Floor
Miami, FL 33131
Here is the list from a recent study:
1. Bob Dylan -- 186 instances
2. The Beatles -- 74 instances
3. Bruce Springsteen -- 69 instances
4. Paul Simon -- 59 instances
5. Woody Guthrie -- 43 instances
6. Rolling Stones -- 39 instances
7. Grateful Dead -- 32 instances
8. Simon & Garfunkel -- 30 instances
9. Joni Mitchell -- 28 instances
10. R.E.M. -- 27 instances
Question -- is it possible to cite a song lyric in 300 characters or less?
Survey says:
3 Urban, Keith. “You Look Good In My Shirt.” Lyrics. Golden Road. Capitol, 2002, available at http://www.lyrics007.com/Keith%20Urban%20Lyrics/You%20Look%20Good%20In%20My%20Shirt%20Lyrics.html. Born in New Zealand, Urban is a country singer/songwriter who was voted Top New Male Vocalist at the 2001 Country Music Association Awards. He was named CMA’s Entertainer of the Year in 2005. In 2006, Urban won his first Grammy Award and married Australian-born actress Nicole Kidman later that year. Keith Urban Biography - Facts, Birthday, Life Story, http://www.biography.com/people/keith-urban-193217 (last visited Nov. 21, 2011). Based on preliminary research, it does not appear that Mr. Urban has released any songs expressly discussing the concept of Article III standing.And also:
The lyric is from the song “The Waiting,” the lead single from Tom Petty and the Heartbreakers’ album Hard Promises, released in 1981. Although now 30 years old, the song is still used in popular culture. It was featured in at least one promotional spot for the fifth season of the television situation comedy “The Office” and is used at Philadelphia Flyers home games (when officials are reviewing a play). http://en.wikipedia.org/wiki/The_ Waiting_(song) (last visited 5/16/2011). See also http://www.lyricstime.com/tom-petty-the-waiting-lyrics (last visited 5/16/2011).Oy veh -- next he'll take two paragraphs to explain what "it's better to be safe than sorry" means.
(Strike that).
Oh I kid the good judge -- the fact is this will be a fantastic presentation and I'm really looking forward to it.
See you all at lunch!
Thứ Ba, 10 tháng 4, 2012
"I am Honored and Humble that the President is Coming to my Home"!
Of course he is:
"This is a day that should not be tarnished by gossip and innuendo that have no basis in fact."Question -- shouldn't every day?
Are you getting ready for Magistrate Judge Goodman's big speech tomorrow?
Be there or be square, kiddies.
Thứ Hai, 9 tháng 4, 2012
First DCA Reverses Administrative Support Order
As was the case twice last week in D.O.R. ex rel Gray v. Hunt and D.O.R. ex rel Whittaker v. Veach, as well as the month before in D.O.R. ex rel Mash v. Ingram, and as seems to be becoming a regular occurrence, the First District Court again reversed an administrative support order today for permitting deviation for an informal timesharing agreement rather than an approved parenting plan. This time the reversal came in D.O.R. ex rel Mayweather v. Mayweather.
Magistrate Judge Goodman Practice Tip #214: Don't Email Me Your Views on Proposed Orders!
It was always my understanding that the email address provided for the submission of proposed orders in federal Court was to be used strictly to (1) delight the Judge with your cute kitten pictures; (2) share highly partisan derogatory quips about President Obama (they're so funny!); and (3) involve the Judge in ponderous email chains that require the recipient to forward long-discredited urban rumors to ten "friends" or else face doom and gloom and the death of the aforesaid cute kitten.
Oh yeah -- and also to let the Judge know you substantively object to a proposed order.
But Magistrate Judge Goodman apparently thinks otherwise:
Counsel of Record may submit proposed orders on motions, where required by a rule or procedure of the Court, to the Court's e-file inbox. However, counsel may not email the Court for any other reason. For example, counsel may not send an email response to the submission of a proposed order. If a party objects to a motion, then the only appropriate procedure is to file a formal , written objection with the Clerk of Court.Sheesh, come on folks -- you're not in state court anymore!
(BTW, is it just me or is the Judge being deliberately vague as to cute kitten pictures?)
I think so......
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