Law Updates for December 24, 2010

Myles, 35 FLW 2819, 3rd DCA - DNA match with in the State Index Data Bank for unresolved crimes resulted in "cold hits" for unsolved rapes.  Probable cause for the arrest of the def, and DNA swabs taken after the arrest were admissible.

Watana, 35 FLW 2824, 4th DCA, Consent, Voluntariness -  Record supports trial court determination that there was no voluntary consent to search def's person even though def was properly stopped for speeding. Trial court was free to reject ofc's testimony that when he asked the def to step out of the vehicle, and then for permission to search his person, def complied with all the ofc's request without withdrawing or resisting consent.  Court finding any consent given was submission to authority and not voluntary, supported by competent evidence.  Nothing in record to indicate that a search of his person was anything more than one step in the ticket writing process.

Neal, 35 FLW 2835, 4th DCA, Evidence - Trial court erred in allowing police ofc to testify it is common not to find a gun in armed robbery cases.  Testimony describes general behavior and, used to bolster the charge this was an armed robbery even though no gun was found or linked to the def, was prejudicial and not harmless.

Barrios, 35 FLW 2837, 4th DCA - Prosecutor's comments during closing argument asking the jury if they would allow the def to get away with it and arguing the only true and just verdict was guilty was improper and prejudicial-new trial.

Lewis, 35 FLW 2848, 4th DCA, Kidnapping - Court should have granted a JOA, Def's actions of ordering store manager to a different room of the store during the robbery, ordering manger to lie on the floor, and unlocking one of the handcuffs so that neither victim was bound or barricaded when the def fled insufficient to lead to the separate crime of kidnapping.

Higerd, 35 FLW 2874, 1st DCA - Possession of child pornography in Airline luggage.  First Impression, Administrative search of an accordion folder inside def's checked baggage by TSA officer.  Bag was randomly selected.  Physical administrative search of luggage was not unnecessarily extensive or inclusive and did not violate the 4th A. TSA officer stopped as soon as saw the pictures and contacted police who got a warrant.  Even if search violated 4th A., good faith exception to warrant applies because TSA officer would not have known search was illegal.

McCoy, 35 FLW 2876, 1st DCA, Trafficking in Hydrocodone - Jury Instructions.  Trial court's failure to instruct the jury on prescription defense that the wife was holding her husband's medication was fundamental error, an error compounded by the prosecutor's closing arguments that there was no defense to the def's possession of the pills, where presenting an "affirmative defense" has to prove fundamental error for lack of the jury instruction which was done here.

Davis, 35 FLW 2882, 1st DCA,  - Error to admit testimony of police investigator recounting statement of witness who had previously confessed to the investigator and implicated the def, but who testified at trial he was unable to remember anything about the incident except that he was one of the robbers.  Testimony did not fall into the exception about statements identifying a person which applies if the declarant was an eyewitness or a victim or after perceiving that person soon after the crime or coming in contact with her.  Officer's testimony could not be used as impeachment as the witness said he did not remember anything and no evidence that the witness appeared to be fabricating lack of memory.  Not harmless error

Gentles, 35 FLW 2900, 4th DCA, - Seizure occurred when ofc directed the def  to turn off his car engine, when ofc notified the def asleep in his parked car with motor running during early morning hours in a shopping mall. Seizure not based on reasonable suspicion of criminal activity or specific concern for officer safety or the health and safety of def or others.  Trial court erred in denying the motion to suppress.



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