Legal Bulletins Flashcards
Charges for violating FSS 836.10 prohibiting written threats to harm or kill can be charged if
1. the def posts the threats on FB
AND
2. if the person being threatened, or a family member of the person being threatened is a FB “friend” of the defendant, who can view def’s FB posts
AND
3. the target of the threat or family member sees the threats.
Posting Threats to Harm or Kill on FB
LB 2013-03
The USSC held that in Riley v CA that cell phones CANNOT be searched without a search warrant based on the search incident to arrest exception to the 4th Amendment’s warrant requirement. This has been the law in FL since Smallwood v FL. Exigent circumstances in the event to prevent imminent destruction of evidence , to pursue a fleeing subject and to assist person who are seriously injured or are threatened with imminent injury will be considered on a case by case basis to search without a warrant.
LB 2014-05
If a subject who is lawfully temporarily detained refuses to answer questions including identifying themselves, this alone is insufficient to arrest and charge the subject with RAWOV. If, based on other information, you develop PC to arrest for another offense you can charge the subject with those charges. If you have not developed PC to charge the subject with a criminal offense, you must let them go.
Terry Stops: Suspect refusal to identify themselves alone is not resisting or obstructing an officer FSS 843.02
LB 2015-04
The 5th Amendment right against self-incrimination requires an accused person be made aware that he is entitled to counsel during a custodial interrogation. Once the right to counsel is invoked, police questioning is required to cease. There are no magic words an accused person must use in order to invoke their right to counsel. Whether an accused person has invoked his right to counsel hinges on whether the invocation is clear and unambiguous. At a minimum, some statement that can reasonably be construed to be an expression of a desire for the assistance of an attorney is a sufficient invocation of rights to require the cessation of further interrogation.
Interrogation: Invocation of Right to Counsel
Rhodes v State
LB 2017-02
FSS 322.15 stated that every driver shall have their DL, which must be fully legible with no portion of such DL faded, altered, mutilated or defaced, in their immediate possession at all times when operating a motor vehicle and shall present or submit upon demand of an officer. A digital copy of the DL can be presented in lieu of a physical DL.
If a driver cannot provide their DL the FSS 322.15(2) requires a fingerprint on the citation. Violation of this section is non-criminal, non-moving infractions.
Proof of DL and When Fingerprint Required on Citation
FSS 322.15
LB 2016-01
Officers may detain a passenger who attempts to leave/flee the scene of a lawful traffic stop without violating the passengers 4th Amendment rights, regardless of whether the officer has reasonable suspicion or PC that the passenger is involved in criminal activity. A passenger who refuses to remain at the scene of a lawful traffic stop may be charged with RAWOV for fleeing after lawful commands have been given to remain on scene.
Traffic Stop– Passenger Detention and Flight
Presley v State
LB 2016-13
When an officer unlawfully stops a driver solely to determine whether they are driving with a suspended DL, the officer’s post-stop observation of the driver/def behind the wheel MUST be suppressed.
Unlawful Stop- DL Status
State V Perkins
LB 2015-17
When writing a PC affidavit for either an arrest or search warrant it is imperative that any exculpatory information (inconsistent victim/witness statements) be included so that the court can weigh the inculpatory evidence and the exculpatory evidence to determine whether under the totality of circumstances, PC exists. Failure to do so can lead to suppression of any evidence gathered as a result of the SW or arrest, dismissal of charges and potential civil liability for the officer and dept.
Qualified Immunity: No immunity where officer omitted material discrepancies from PC affidavit.
LB 2017-01
The law continues to allow for a homeowner to request an officer to assist in the removal of a “transient occupant” without the necessity of going through the eviction process. A formal procedure for situations where a homeowner or other person in control of a residential premises, has allowed a person to stay with the for a “brief period of time” but then that person wont leave when asked. IF the statutory criteria are met, the person remaining on the property can be ordered to leave or face arrest for trespass.
Removal of Transient Occupant
Amendment to FSS 82.045
Effective 07/01/2018
LB 2018-05
Transient Occupant is a person whose residency in a dwelling is intended for a residential use has occurred for a brief length of time, is not pursuant to a lease, and whose occupancy was intended as transient in nature.
Amended factors include
* Person does not have ownership, financial or leasehold interest in the residential property.
*Person does not have any property utility accounts for the property
* Person cannot produce documentation, correspondence or ID cars sent or issues by a govt agency which show the property address.
* Person pay little to no rent
* Person does not have a space of their own (ie bedroom)
* Person has minimal belongings at location
* Person has an apparent permanent residence elsewhere.
Removal of Transient Occupant
Amendment to FSS 82.045
Effective 07/01/2018
LB 2018-05
Termination of Occupancy by the Subject
A transient occupancy terminates when a transient occupant begins to reside elsewhere, surrenders the key to the dwelling or leaves the dwelling when directed by officers
Removal of Transient Occupant
Amendment to FSS 82.045
Effective 07/01/2018
LB 2018-05
Procedure
A “Party Entitled to Possession” (PEP) of the residential premises (homeowner) must first direct the unwanted transient to leave before seeking the assistance of an officer. The PEP must then complete a sworn affidavit, stating facts and establishing that the transient is refusing to leave. If the officer deems the statement of evidence sufficient, then they can order the transient to leave.
Once the affidavit is completed, the officer may tell the transient they must surrender occupancy and vacate the premises. Failure to do so can result in an arrest for trespassing in FSS 82.045(3)(a).
Removal of Transient Occupant
Amendment to FSS 82.045
Effective 07/01/2018
LB 2018-05
Return of “Transient Occupant’s” Property
If the PEP violates this by not returning the property, they can be sued civilly. Failure to return property is not a criminal issue.
Removal of Transient Occupant
Amendment to FSS 82.045
Effective 07/01/2018
LB 2018-05
