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To search your phone for evidence of a crime, police officers generally need to get a warrant from a judge or show that they have probable cause to believe that there’s evidence of a crime on the device. Even in cases in which a judge grants a warrant, any evidence obtained from the search is likely to be excluded at trial if the warrant wasn’t issued based on probable cause. As a federal court in Pensacola recently pointed out, however, judges get a lot of leeway in deciding whether to issue a warrant.

cell phoneA defendant was charged in February with one count of knowingly possessing and accessing child pornography. The charge came after he went to a local MetroPCS store in Pensacola, looking for some assistance with his cell phone. The MetroPCS employee assisting him observed a large amount of pornographic material stored on the phone. The employee also said she saw a folder marked “underage,” which she didn’t open. The employee contacted a tip line at the National Center for Missing and Exploited Children.

The defendant, who was already a registered sex offender, was arrested by state police on a separate charge for failing to tell authorities that he had moved. State police took the cell phone and turned it over to the FBI, which obtained a warrant from a judge authorizing law enforcement officers to search the phone. They allegedly found some 40 images of child pornography. The defendant sought to have that evidence kept out of the trial against him. He argued that the affidavit the FBI filed in court to get the warrant wasn’t based on probable cause. The district court disagreed.

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The rule against hearsay generally bans one person from testifying in court about what another person, like a witness or victim, said outside of court, if it’s being used to prove a fact. In other words, a witness generally can’t testify in court that the victim told him who committed the crime. Florida’s Third District Court of Appeal recently pointed out one of many important limits on this rule: It can’t stop other evidence proving the same fact to be entered into the record.

old recorderMr. J. was charged with attempted armed sexual assault and armed false imprisonment, stemming from a Florida criminal law incident near the Aventura Mall in South Florida. An 18-year-old woman was walking home from her job at the mall when Mr. J. asked her repeatedly if she needed a ride and told her to get in. The woman obliged because it was raining heavily. She later said that Mr. J. drove in the wrong direction and then offered her money to have sex with him. Mr. J. grabbed her and pulled out a gun when she refused, she said. The woman managed to escape – without her cell phone and one shoe – when Mr. J. pulled in to a nearby park. A local homeowner called 911 when the woman began screaming when she was caught on a fence attempting to escape Mr. J., according to the court.

Mr. J. admitted at trial that he had picked up the woman and offered to pay her for sex. He also said she refused and ran away once the car was parked. Prosecutors introduced the 911 tape – which included the victim and the homeowner speaking with an emergency operator – among other evidence at trial. They also introduced testimony from a local police officer about what the homeowner told him the day after the incident. According to the officer, the homeowner said he heard woman screaming, went out to check, found the victim stuck on a fence, and saw a man walking to a black car nearby.

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A sex offense conviction in Florida can come with severe consequences, including the possibility of significant time behind bars. Sex offenders are also required to register as such in the Sunshine State, a designation that renders your conviction and your address publicly available. For anyone previously convicted of a sex crime, a new conviction can also bring a new registration requirement as a sexual predator. That means additional registration requirements and a much more difficult process for removing yourself from the registration. It also means more public scrutiny. A recent decision from Florida’s First District Court of Appeal shows just how difficult it can be to fight a sexual predator designation, and just how important it is to have an experienced attorney in your corner.

blank paperJ.F. was charged with 19 counts of possession of child pornography, in violation of Florida state law. He eventually pleaded guilty to all 19 counts, and was sentenced to 25 years in prison as well as 25 years of probation. J.F. was also designated as a sexual predator under state law based on his prior criminal history.

J.F. later appealed the decision, arguing that he should not have been tagged as a sexual predator. He said he had previously been found delinquent as a juvenile in a separate sex offense case, but wasn’t actually convicted. J.F. argued that delinquency alone wasn’t enough to justify classification as a sexual offender. His lawyer asked to be dropped from the case.

DNA evidence can play a critical role in Florida sex crime cases, but it also has some limits. In many cases, DNA evidence may confirm that the person charged with the crime and the victim had some sort of sexual contact, but it can’t determine whether that contact was consensual. Similarly, DNA from a third person may show that the victim recently had sex with more than one person, but it can’t determine the source of any injuries often associated with a sex crime. Florida’s First District Court of Appeals recently explained some of the restrictions on using third-party DNA evidence in sex crime cases.

DNA containersA defendant was charged with sexual battery following an incident with a student at the University of West Florida in Pensacola. The woman invited him to her dorm room one day after the two met off campus. They talked for a while and started kissing. That’s when, according to the court, the defendant became more aggressive. He closed the door and turned off the lights, the court said. The he allegedly held the woman down, grabbed her neck, pulled down her pants and “forced himself on her,” according to the court. He was arrested after the victim’s friends called the police when she told them what had allegedly happened.

The defendant argued at trial that the sex was consensual. The victim testified that he raped her. The trial court declined his request to enter into evidence DNA samples from a third person that were taken from the victim’s underwear shortly after the encounter. He was convicted and sentenced to 25 years in prison.

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Florida law allows state authorities to involuntarily detain a person who is otherwise free if he or she has been deemed a sexually violent predator. In order to be subject to potential civil commitment under state law, a person must have a criminal history of sexually violent activity. As the Fourth District Court of Appeal recently explained, however, that history has to be based on actual criminal convictions rather than mere allegations.

justice scalesA defendant was incarcerated and set to be released from jail when state prosecutors filed a lawsuit asking a judge to tag him as a sexually violent predator and commit him to a secure treatment facility. The prosecutors alleged that he was previously convicted for two counts of lewd and lascivious acts on a minor and said he suffered from multiple personality disorder. They claimed that he was likely to commit future offenses if he was not treated and kept in long-term custody.

At trial, the defendant asked the court to bar evidence of two other instances in which he allegedly molested teenagers. He was arrested in each instance but was never charged with a crime. He also asked that the judge exclude evidence of a 2010 case in which he was charged with attempted sexual battery but found guilty of simple battery, a lesser offense. The judge declined each of the requests. Prosecutors, meanwhile, presented one witness. A psychologist described the three instances of alleged Florida sex crimes for which the defendant was never charged or convicted and concluded that he was a sexually violent predator who required commitment and treatment. The jury eventually decided that he should be involuntarily detained and treated.

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The jury selection process is a crucial part of any Florida homicide or other criminal trial. Decisions about who winds up determining whether you committed the crime with which you are charged can make or break a case. A Florida appeals court recently reiterated an important protection against discrimination in the jury selection process. The Fourth District Court of Appeal said a judge can’t remove a potential juror from the pool based on his or her religion.

wood gavelThe defendant in this case was among a group of criminal defendants charged with first-degree murder and conspiracy to commit first-degree murder in Broward County. During the jury selection phase, state prosecutors sought to use one of their peremptory strikes to keep a woman off the jury because she is a Jehovah’s Witness. One prosecutor told the judge he was concerned that in his experience, Jehovah’s Witnesses decline to “sit in judgment” of others. Although the woman said she would have no problem finding the defendant and the others guilty if the evidence was sufficient, the prosecutor said he thought she would apply a higher burden of proof than required under the law.

The judge eventually agreed to strike the juror from the panel. The defendant filed a motion for a mistrial, which the judge denied. He and the other defendants were convicted and sentenced to life in prison. But the Fourth District reversed that conviction on appeal. The court said the woman’s religion was not a sufficient reason for removing her from the panel.

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When sex crime and other criminal cases involve more than one defendant, it can be tough to establish who committed what crime. That’s often made more complicated by co-defendants who turn on one another and blame each other for committing the crimes. A recent case out of Florida’s Fourth District Court of Appeal makes clear that courts look at “innocent bystander” defenses with quite a bit of skepticism.

wood gavelMr. Henry and another person where charged with robbing four teenagers at gunpoint and then forcing them to engage in multiple sex acts with each other. The teenagers – three boys and one girl – were smoking marijuana and playing cards in an abandoned house when Henry and his friend arrived and joined in. The other man pulled a gun, ordered the victims to put their stuff on a table, told the girl to take off her pants, and then used a pencil to penetrate her vagina, according to the court. Henry and the other man took turns holding the gun while directing the victims to perform various sex “scenes,” the court said. A third man eventually arrived at the house, confronted Henry and his friend and told the victims to leave.

Henry was convicted of four counts of false imprisonment, three counts of robbery and 17 counts of sexual battery with a firearm. He later appealed the sexual battery conviction, arguing that there wasn’t enough evidence to show that he performed a sex act, instructed any of the victims to perform a sex act or that he threatened or pointed a gun at any of the witnesses. He likened the situation to that in Lovette v. State, a 1994 cases in which the Florida Supreme Court scrapped sexual battery charges against a man involved in an armed robbery who was not in the room when his co-defendants committed sexual battery.

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Jury instructions are important in any criminal case. They’re particularly critical in cases in which a jury is tasked with deciding whether a person committed a felony or a related misdemeanor offense instead. A recent case out of Florida’s Supreme Court makes clear that judges don’t have the right to simply choose not to tell a jury that a person facing felony charges could instead be convicted of a misdemeanor.

judge's gavelF.W. was charged with various crimes related to his alleged molestation of three boys over an 11-year period from 2000 to 2011. At trial, all three boys testified that F.W. touched their genitals, and one victim testified that F.W. put the victim’s penis in his mouth. At the close of trial, the judge instructed the jury on the various crimes with which F.W. had been charged. The judge did not, however, tell the jury about the crime of offense of unnatural and lascivious act, a second degree misdemeanor.

F.W. was eventually convicted of two counts of lewd or lascivious molestation against a victim less than twelve years old, three counts of lewd or lascivious molestation against a victim between twelve and sixteen years old, and one count of lewd or lascivious battery against a victim less than sixteen years old. He was sentenced to life in prison. The Second District Court of Appeal later affirmed the conviction, rejecting F.W.’s claim that the judge should have allowed the jury to consider convicting him of the lesser offense of unnatural and lascivious act.

Electronic evidence like emails and text messages are often at the center of Florida sex crime cases. A recent federal case out of the Eleventh Circuit Court of Appeals is a good example of how that evidence often comes into play.

In 2015, an FBI agent responded to a Craigslist ad posted by the defendant. The ad allegedly used code words indicating that he was looking to have sex with young children. The agent posed as the father of a 10-year-old boy and 13-year-old girl. The defendant expressed an interest in having sex with the kids during a series of subsequent email exchanges, according to the court. He later confirmed that interest in a recorded phone call. He was arrested after driving to the place where he and the agent had agreed to meet.cell phone

He consented to having his email and cellphone searched, along with his car. He also agreed to allow officers to assume his online identity. He admitted to posting several ads soliciting sex with children. He also acknowledged that he had agreed with the agent to meet for the purpose of having sex with a minor. A search of his cellphone turned up all of the emails with the FBI agent. He additionally told the cops that he had communicated with another person about having sex with the man’s 12-year-old child four years earlier. Those communications eventually ended when the man stopped responding, he told the police.

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Anyone charged with a crime in Florida has the right to have a fair and impartial jury of his or her peers determine guilt. The state’s Fourth District Court of Appeals recently explained in a sex crime case that jurors who make clear during the jury selection process that they can’t give the person charged a fair shake should be left off the jury.

justiceThe defendant was charged with a variety of crimes, including sexual activity with a child, lewd or lascivious molestation of a child over the age of 12 but under the age of 16, lewd or lascivious molestation of a child under the age of 12, sexual performance by a child, and showing obscene material to a child. At trial, his lawyers planned to argue that the defendant gave a false confession to the crimes when he was interviewed by the police as a suspect. One lawyer asked prospective jurors during the jury selection process whether they believe people confess to crimes they didn’t commit. The trial judge allowed two jurors to serve, although they expressed skepticism about false confessions, and the defendant’s lawyer asked for them to be removed from the jury pool.

The first juror said he did not believe a person would make a false confession. Even someone who did falsely confess to a crime probably was involved in the crime somehow, the juror said. “I think your question was would they agree to admitting to a crime that they did not commit and my answer to that would be no,” he said. The second juror also said it was hard to believe that a person would confess to a crime that he or she did not commit. “Something of this nature would just be very unreasonable for someone to admit guilt to,” he said. The juror later said a person would have to be “crazy” to wrongly confess to the kind of sex crimes with which the defendant was charged. He was eventually convicted of the crimes following trial.

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