October 17, 2008

Santiago, 33 FLW 2363, 2nd DCA, Poss of hydrocodone-constructive possession-state failed to prove that the def had knowledge and dominion and control over drugs which were concealed in the residence where a number of people lived in and had access to the residence-mere fact that some contraband in plain view does not permit the inference that def knew of all the quantities of hidden contraband

S.L., 33 FLW 2365, 4th DCA, trial court erred when it relied on mother's prior inconsistent statement to deputy as sole evidence supporting its finding of guilt on simple assault charge-deputy's testimony as to mother's statements cannot be used to support finding of guilt because those statements were not given under oath at trial, hearing or other proceeding

Kessler, 33 FLW 2378, 4th DCA, Statements of the defendant-error to admit into evidence a tape recording of a phone call def made to his alleged drug source upon the request of police during custodial interrogation after def was given an incomplete Miranda warning that failed to advise the def that he had to right to have an attorney present during interrogation, taint from incomplete Miranda warnings, request that the def reveal drug source and place phone call required complete Miranda warnings-error in admitting recorded phone call was not harmless and def's tape recorded conversation with his alleged drug supplier was an incriminating testimonial communication which tended to show the def's knowledge of drug trade and method of operation

The Law Office of Roger P. Foley, P.A.