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How the “Internet of Things” Could Become a Liability

James Bates of Bentonville, Arkansas claims he woke up on November 22, 2015 to find his friend, Victor Collins, dead in his hot tub.[1]  At about 9:30AM Bates called 911 to report that he found the body after a night of heavy drinking with Collins and another friend.[2]  Bates claims to have no memory of what occurred, but the state of Arkansas contends that there is evidence of a struggle, and a cover up of the ensuing murder.[3]  This seems like a standard case for a criminal defense attorney, collecting evidence to prove Bates’ side of the story.  This case has morphed into one that is far from ordinary, with the potential introduction of evidence from smart devices around Bates’ home.[4]  Investigators analyzed Bates’ water heater in order to conclude it used far too much water in the early hours of the morning when the cleanup would have occurred.[5]  Further, headlines exploded around the country when Amazon was served with a warrant for recordings from Bates’ Amazon Echo device.[6]  Digital voice-based assistants such as Amazon Echo and Google Home are designed to always be listening for a “wake word” an then proceed to record what is said afterwards.[7]  They by-design record what happens after the wake word, and then analyze the statements in order to learn how to more effectively control smart devices, navigate tasks, and query for information in the future.  These recordings are what state prosecutors hope to use in the case against Bates, and have sought to recover via a warrant served to Amazon.[8]  Meanwhile defense attorneys, working on behalf of Bates have discredited the potential use of this data, citing the Amazon user agreement, and Amazon’s assertion that it cannot guarantee the “functionality or content … is accurate, reliable, or complete.”[9]  The defense attorneys have claimed that the use in court would be “crazy” with this disclaimer in place, and have gone on to state that “There’s nothing on the Amazon Echo that will hurt us . . . We’re not fearful of anything being provided, if Amazon does indeed respond.”[10]  The potential use of these devices has understandably scary implications, their current structure only records audio after the wake-word has been said, but there are fears this could change with simple programming tweaks.  Devices such as these comprise of the “internet of things,” a term used to describe the networking of standard everyday devices so that they are able to send and receive data. [11]

Amazon Echo Pumphrey Law Criminal Defense Tallahassee

Amazon Echo

Privacy issues with devices such as these are not a new topic of concern.  The Chromium browser is the open-source basis for Google Chrome,[12] the most widely used browser in the world.[13]  Developers found that the browser was installing code that would listen for and share audio based on “an audio transmission triggered by . . . an unknown and unverifiable set of conditions” and potentially “without [the users’] consent or knowledge.”[14]  Concerns with “always on” recording, and the legal status of this data have extended to Samsung, Mattel, Microsoft and others.[15]  Data collected by these devices have, until now not been a concern for criminal defense attorney’s facing litigation though.  “Alexa,” Amazon’s always on software which is the heart of the Bates’ case is the first that has been addressed from a criminal evidentiary standpoint.[16]  The software is designed to collect recordings of audio upon hearing the wake word, and relay that data to Amazon’s cloud-based servers, and “Amazon has not disclosed the extent to which the company will have access to the data collected by these third party devices.”[17]  To further compound the privacy concerns, Amazon allows developers to create “skills” (third-party programs to create a specific functionality) and capabilities for the Alexa service.[18]  These skills could allow extra data to be recorded, data which Amazon has not explained any kind of standard for safeguarding.  The Electronic Privacy Information Center has argued during lobbying efforts that it is “unreasonable to expect consumers to monitor every word said in front of home electronics” and has gone as far as stating that the general practice of adding “always on” listening “is also genuinely creepy.”[19]

The practice of adding “always on” features being labelled “creepy” and invading the privacy of those users will not help criminal defense attorneys such as those in the Bates’ case however.  Any information Amazon discloses will likely be admissible in court, as long as it is relevant,[20] as statements made by a party opponent are generally not considered hearsay.[21]  The inclusion of this evidence is going to be up to Amazon, and any court rulings regarding the warrant served to them.[22]  At this time, Amazon has only stated that it “will not release customer information without a valid and binding legal demand properly served” and that “Amazon objects to overbroad or otherwise inappropriate demands as a matter of course.”[23]  What this means for the future of Bates’ case is unknown.  This case could have far reaching implications though, as these “always on” devices and the data they collect could theoretically be used in a myriad of cases, not just criminal.  Whether or not this will be technically or legally feasible just remains to be decided.

Brent Marshall Pumphrey Law Firm Law Clerk Criminal Defense

Author: JBrent Marshall

 

[1] Zuzanna Sitek & Dillon Thomas, Bentonville PD Says Man Strangled, Drowned Former Georgia Officer, 5 News-KSFM (Feb. 23, 2016 8:40AM), http://5newsonline.com/2016/02/23/bentonville-pd-says-man-strangled-drowned-former-georgia-officer/.

[2] Id.

[3] Elliot C. McLaughlin, Alexa, can you help with this murder case?, CNN News (Dec. 28, 2016 3:13PM), http://www.cnn.com/2016/12/28/tech/amazon-echo-alexa-bentonville-arkansas-murder-case-trnd/index.html.

[4] Id.

[5] Id.

[6] Id.

[7] Chris Smith, Here’s how to delete all the voice recordings Amazon Echo and Google Home secretly store, Boy Genius Report (Dec. 30, 2016 8:27AM) http://bgr.com/2016/12/30/how-to-delete-amazon-echo/.

[8] McLaughlin, supra note 3.

[9] Id.

[10] Id.

[11] Id.

[12] Samuel Gibbs, Google eavesdropping tool installed on computers without permission, The Guardian (June 23, 2015 8:27AM) https://www.theguardian.com/technology/2015/jun/23/google-eavesdropping-tool-installed-computers-without-permission.

[13] Stat Counter, Top 9 Browsers from Dec 2008 to Nov 2016, http://gs.statcounter.com/#all-browser-ww-monthly-200812-201611.

[14] Gibbs, supra note 12.

[15] Letter from Marc Rotenberg, Executive Director, Electronic Privacy Information Center, to Loretta Lynch, Attorney General, U.S. Department of Justice, July 10, 2015, https://epic.org/privacy/internet/ftc/EPIC-Letter-FTC-AG-Always-On.pdf (addressing concern over “always on” devices and the legal ramifications for holding onto this information).

[16] McLaughlin, supra note 3.

[17] Rotenberg, supra note 15.

[18] Bus. Wire, Amazon Introduces the Alexa Skills Kit—A Free SDK for Developers (June 25, 2015 9:03AM), http://www.businesswire.com/news/home/20150625005699/en/.

[19] Rotenberg, supra note 15.

[20] Fed. R. Evid. 401.

[21] Id, at 801(2).

[22] McLaughlin, supra note 3.

[23] Id.

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Florida Residents in Limbo Following the Approval of Medical Marijuana

During the November presidential elections, Florida voters voted overwhelmingly in favor of legalizing medical marijuana; however, potential medical marijuana users are unclear on where they go to a local distributor to fill their medical marijuana prescriptions. Furthermore, many patients suffering from serious illnesses have questions regarding when and where they can retrieve a medical card.

In addition to questions regarding where to obtain medical marijuana legally, the amount of medical marijuana available to qualifying patients per prescription has yet to be specified by Florida lawmakers.
Starting January 3, 2017, Florida has six months to create specific guidelines governing the distribution of medical marijuana, medical marijuana cards, and other relevant regulations. While qualifying patients await further instruction from Florida lawmakers, many patients are left to find more traditional methods of coping with their medical conditions.

Tallahassee Marijuana Defense Lawyer
While medical marijuana usage is now legal in the state of Florida, recreational use is still prohibited, and possession of marijuana is still considered a federal crime. If you were arrested and charged with a marijuana offense, contact the Pumphrey Law firm to speak with an experienced criminal defense attorney. This firm is dedicated to finding the best solution for your circumstances.

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Pumphrey Law Scholarship: Spring 2017 Winning Essay

Pumphrey Law Scholarship Essay

Lauren Sumners Pumphrey Law Scholarship Spring 2017 Essay Winner Tallahassee Florida Criminal Defense Florida State University

Lauren Sumners and Don Pumphrey, Jr.

One of my professors at Florida State University ends every class by pleading his students to do just one thing –“Please, do not drink and drive. Be safe.” This professor has taught thousands of students and boasts an impressive and long career. Every time I hear him say these words, I can’t help but imagine the things he must have seen throughout his many years of teaching. Has he had to deal with the loss of students due to drunk driving? Has he had to deal with grieving parents? Has he had to deal with a loss in his own family? I do not know the story behind his plea (or if there is one at all), but I do know his efforts stem from a sincere concern for his students’ safety and well-being. As a professor, he desires success for his students above all else. As his students, we have learned how to think critically in the classroom and are well aware of how our academic choices can alter our futures. I imagine this is his small way of encouraging his students to think critically outside of the classroom as well and understand that those choices are just as important. Through his simple words, he challenges his students to be proactive and choose responsibility in order to ensure a life after college.

Choosing to drive while drunk is a selfish act. It is entirely devoid of all responsibility and consideration. Not only does drunk driving endanger oneself, it endangers the lives of so many others including friends, loved ones, and complete strangers. While the majority of students are well aware of the consequences of drunk driving, many choose to ignore them. Due to the nature of the party scene, especially in college, it is easy for students to be tempted into making bad choices, such as thinking they can drive when they should not. It does not take much convincing by one’s friends or even oneself to think, “I’m probably fine” and get behind the wheel after drinking. In those moments, intoxicated and without the familiarity of their own home, many students do not choose responsibility; they choose selfishness. As a young woman living on a college campus, I am very aware of this temptation to act irresponsibly; I see students make the choice to act dangerously all of the time. It is not uncommon to see a drunken student stumbling along the street or getting rowdy at a bar only to then get in their car and swerve out of sight. Because of this, I am always on alert when driving, especially at night. Not only is the life of the drunk driver at risk when on the road, but so is mine and those around me. While I wish all students would act responsibly and understand how truly selfish it is so drive when drunk, I understand that this is not reality. These students who carelessly drink and drive are ignoring the negative impact it has on their lives and on the lives of others. They are ignoring the hard work of their families to provide and secure for them an education. They are ignoring the hopes of other students who are pursuing their futures and academic careers at Florida State. They are even ignoring the sanctity and dignity of their own lives.

Simply put, drunk driving destroys. Aside from destroying lives, it destroys families, friendships, academic careers, and futures. For those who have been impacted by the dangers of drunk driving, they have felt the acute pain of loss and know all too well just how far its sobering effect spreads. As a student who has valued the opportunity to receive a good education throughout my life and understands what a sacrifice it is financially for my family to send their children off to college to receive higher education, I made a pledge to myself at a young age to never take that for granted. Though I have failed at times, I have always tried to pursue my education with passion and dedication in an effort to respect what a gift it truly is. If I were to choose not to act responsibly when drinking, I would be turning my back on the sacrifices my loved ones have made for me. Unfortunately, I do not have a surefire solution to prevent drunk driving. I cannot control the actions of those around me nor can I make them understand the selfish nature of their choice to drink irresponsibly. However, I can set an example. I do not believe any one person is too insignificant or too powerless to make a difference. The positive, responsible actions and choices of each individual contribute to the well-being of their community in ways far greater than they may ever understand. By choosing not to drink and drive, I honor my family, friends, and community who love and value me. By choosing not to drink and drive, I uphold my university and acknowledge what has been given up in order to give me an education. By choosing not to drink and drive, I protect the shared opportunity to learn and work toward achieving academic goals with my peers, signifying that I believe my own selfishness is never enough to threaten or take that opportunity away from anyone.

 

Author: Lauren Sumners

Florida State University

Lesumners152@gmail.com

 

www.pumphreylawfirm.com

http://www.pumphreylawfirm.com/resources/pumphrey-law-scholarship/ 

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The Florida Medical Marijuana Legalization Initiative: Is it Final Step for Medical Marijuana, or One More Hurdle on The Long Track to Legalization?

 

Brent Marshall Pumphrey Law Firm Law Clerk Criminal Defense

Brent Marshall

Author: Brent Marshall: Law Clerk for Pumphrey Law Firm

On November 8th 2016, over six and a half million Floridians voted in favor of Amendment II, “Use of Marijuana for Debilitating Medical Conditions.”[1]  The electorate supported the measure 71% to 29%,[2] easily satisfying the 60% needed to pass.[3]  Here in Leon County, the electorate voted in favor of the amendment at an incredible 50% margin.[4]  The Florida Constitution mandates that a passed amendment such as this one is to go into effect “as an amendment to . . . the constitution of the state on the first Tuesday after the first Monday in January following the election.”[5]  While it is certainly appropriate for millions of Floridians to rejoice in the fact their voice has been heard, it leaves an obvious question, what next?  The amendment will go into effect January 10th, but there are multiple hoops and boundaries to be jumped through and crossed over before the November vote can translate into Marijuana based treatments of illness.  Patients like five-year-old Abby Muszynski may finally be able to obtain the help they need, when nothing else has worked, some semblance of a normal life.[6]  Abby was unable to find any drugs that would stop her seizures, until legal medical marijuana was given to her, the first solace she has found.[7]  Even with this medicine though she continued to have two grand mal seizures a week, preventing any meaningful growth and development, she simply needed more, such as that authorized by Amendment 2,[8] but the timeframe of this help will be at the whim of the Florida Department of Health, the legislature, and the courts.

No one believes that the necessary infrastructure will magically be installed a mere two months after the amendment vote, the actual timeframe however is now being evaluated by experts.  Some aspects of the upcoming implementation are thankfully codified in the amendment itself.[9]  The Department of Health has six months after installment of the amendment to promulgate rules for medical marijuana use going forward.[10]  Further beyond this deadline is a nine-month cutoff before the Department is constitutionally obligated to begin offering: patient and caregiver identification cards; and registering medical marijuana treatment centers.[11]  If either of these deadlines are not met the amendment creates judicial standing for any Florida citizen to seek judicial relief in the form of compelled compliance.  Non-compliance could technically go overlooked, but with over two and a half million dollars in contributions stemming from the Morgan Law Firm alone, there will undoubtedly be a citizen with the means and the desire to fight any kind of regulatory stalling by the Department of Health.[12]  Finally, there is a provision within the statute which allows the legislature to weigh in on both the substantive law of medical marijuana use, and the implementation.[13]  This clarifies that the amendment does not prevent the legislature enacting laws, but reemphasizes that they must not conflict with the article.[14]  The legal framework of the amendment is easy to follow, the Department of Health must do something in the next six months, and must be close to ready for practical application after nine months, while the Legislature can do very little to derail it.  The practical application of these now-theoretical regulations and implementation is anything but straightforward though.  Now Floridians are wondering what this legal framework is going to look like and how it will affect everyone from a dying marijuana patient already taking advantage of the limited law in place, all the way to those individuals looking to invest in the new system.

Prior to November, twenty-eight other states and the District of Columbia had begun implementing medical marijuana laws.[15]  These states have seen a wide variation of successes and stalled plans.[16]  For example, the most recent law to be passed in Washington state went into effect on July 1, 2016, aiming to integrate the medical and recreational markets.  The Washington Department of Health has already established the rules for these specialty clinics and regulations to create one large industry.[17]  Washington is not a direct analogy to Florida though, Washington passed an adult use recreational law in 2012.  These stores started opening in 2014 and the new law was passed to create a medical marijuana endorsement that the businesses could apply for.[18]  Alternatively, in Florida there has been a medical marijuana bill, the “Compassionate Medical Cannabis Act of 2014” outlines the system currently in place for medical marijuana use.[19]  The “Compassionate Medical Cannabis Act” shows the different approach to legalization of marijuana use that Florida has adopted compared to states such as Washington.  Florida, prior to the new amendment’s future adoption only authorizes use for patients who suffer from cancer, or a condition that creates seizures or severe muscle spasms, and only approves the use of low-THC cannabis.[20]  The doctor’s prescribing this low-potency marijuana are also forced to jump through a series of hoops; completing courses and examinations,[21] submitting a quarterly report to the University of Florida College of Pharmacy,[22] and must treat the patient for a full three months before considering the treatment.[23]  These roadblocks in place show the vastly different systems in place, and emphasize the fear that the current political leaders will not implement this in way consistent with States such as Washington.

The Florida Department of Health’s primary “track record” that can be used to predict the new law’s course will be the implementation of the “Compassionate Medical Cannabis Act.”[24]  The implementation of the Compassionate Medical Cannabis Act was initiated with the creation of the “Office of Compassionate Use” in July of 2014, but cultivation authority was not authorized until February of 2016, a full 18 months later.[25]  Dispensing of medical marijuana did not formally commence until July 22nd, a full two years after the process began.[26] Amendment two clearly will not take this long to follow through on; the groundwork for implementation is already in place, and there are the built-in timelines present.  The current regulations should shed some light on what kind of medical marijuana regime the Department of Health will create, with commenters confidently asserting it will follow the form of strict states such as New York, Illinois and Nevada, rather than notoriously liberal states such as California.[27]  In New York, potential producers must, in addition to a litany of small requirements: pay $210,000 ($10,000 of which is non-negotiable), be able to produce enough product, prove knowledge to produce, show a plan to implement security, pass a background check and show that all equipment is paid for or accounted for.[28]  In Illinois, similar monetary and safety requirements are in place, but the state only issued 60 dispensary licenses to 211 applicants and 21 cultivation licenses to a pool of 158 applicants.[29]  Meanwhile Nevada, described as even more strict than the current “low-THC” system in Florida, has a rigorous and complicated point system and only allowed applications for a total of 13 days back in 2014.[30]

The Department of Health will have near-full control over how strictly this law is implemented.  The Department of Health will need to authorize growers and dispensaries, they could choose to expand this authorization over what is currently allowed, but if the Department of Health limits it to the six nurseries currently in business,[31] they will not have to promulgate new rules for this expansion.  Even if the Department of Health chooses to engage in negotiated rule making akin to the 2014 law’s implementation these nurseries will likely hold onto to a substantial amount of negotiating power in that forum.[32]  It is also incredibly likely that the Department of Health will even choose to enter negotiated rule making for the authorization and licensing process for Medical Marijuana Treatment Centers under the new law, and it is likely that these nurseries will have a substantial say over their future business partners in the vertical hierarchy.[33]  The medical marijuana certifications will ultimately be decided by the Department of Health whether they give up some or all of this control to the nurseries or not.  During implementation of the 2014 law they originally came up with a lottery system which was abolished after judicial review, and then moved on to a scorecard system akin to Nevada, which survived judicial challenge.[34]  It is likely that some kind of scorecard system will be used again, but that is of course just a guess, as the Department of Health’s decision is still at least 6 months from release.  Regardless of the decision though, it will be on a much quicker timeline because of the mandatory provisions, meaning that it is likely deference will go to a system which has already been challenged in court.  There is also a matter of fees, unlike the other strict states, Florida required a $60,063 non-refundable fee in order to apply to grow the Marijuana under the current system, this could be more or less depending on the whims of the Department of Health.[35]  Some argue that this fee will likely be lower because the requirements to operate a Medical Marijuana Treatment Center will invariably be lower than a nursery, leading to more applicants, this is just a guess though, as the Department of Health will have the ability to make this process as easy or as difficult as they see fit.[36]

Unfortunately, there is no easy answer, no crystal ball to figure out how the state agencies are going to regulate patients’ futures.  Some have already had to flee the state, such as five-year-old Abby.[37]  Abby finally has a normal, seizure-free life thanks to full THC medical marijuana she receives in her new home of Colorado.[38]  Someday help such as this should not require uprooting life, moving across the country in a medical transport and leaving behind teenage siblings.[39]  This is the promise of Amendment 2, it is now up to the government to uphold this law and make sure that Abby’s of the future don’t have to go through this ordeal.  The rulemaking procedures will likely be a public affair, and any legislation will come from representatives from across the state, six and a half million Floridians voted for medical marijuana to be legal.  Those who truly believe in the cause need to keep an eye out for these rulemakings, and hold congressman accountable, for some, such as Abby, this law is a matter of life-and-death, and it should be treated as such.

www.pumphreylawfirm.com

[1] Florida Election Watch – Florida Division of Elections, Amendments, http://enight.elections.myflorida.com/Constitutional/Amendment.aspx (last visited Nov. 29, 2016) (6,518,919 voted for the measure).

[2] Id.

[3] Fla. Const. art. XI, section 5(e).

[4] Supervisor of Elections, Leon County, 2016 General Election – Official Results http://enr.electionsfl.org/LEO/Summary/1601/ (last accessed Dec. 8, 2016) (113,919 Leon County voters were in favor of the amendment, with 26,854 against).

[5] Id.

[6] Elizabeth Cohen, Health care refugees: Medical marijuana and new hope, CNN – Health (Nov. 30, 2016 3:23PM), http://www.cnn.com/2016/11/28/health/health-care-refugees-part-2/.

[7] Id.

[8] Id.

[9] Fla. Const. art. X, section 29(d)(1) (2017).

[10] Id.

[11] Id. art. X, section 29(d)(2) (2017).

[12] Florida Division of Elections, Committee Campaign Finance, (accessed Nov. 29, 2016).

[13] Fla. Const. art. X, section 29(e) (2017).

[14] Id.

[15] Marijuana Policy Project, Medical Marijuana Program Implementation Timelines, https://www.mpp.org/issues/medical-marijuana/state-by-state-medical-marijuana-laws/medical-marijuana-program-implementation-timeline/ (last visited Nov. 29, 2016) (including: Alaska, Arizona, California, Colorado, Connecticut, Delaware, D.C., Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Ohio, Oregon, Pennsylvania, Rhode Island, Vermont, and Washington; all of which can be used as a comparative snapshot of what this regulatory struggle can look like, either at an earlier or later stage of development).

[16] Id.

[17] Washington State Department of Health, Medical Marijuana, http://www.doh.wa.gov/YouandYourFamily/Marijuana/MedicalMarijuana/RulesinProgress (last visited on Nov. 29, 2016).

[18] Medical Marijuana Program Implementation Timelines, Supra note 15.

[19] Fla. Stat. § 381.986.

[20] Id. § 381.986(2).

[21] Id. § 381.986(2)(c).

[22] Id. § 381.986(2)(g).

[23] Id. § 381.986(2)(b).

[24] Hilary Bricken, Hazy Days Ahead? What We Don’t Know About Florida’s New Medical Marijuana Law, Above The Law (Nov. 28, 2016, 4:20 PM), http://abovethelaw.com/2016/11/hazy-days-ahead-what-we-dont-know-about-floridas-new-medical-marijuana-law/.

[25] Florida Department of Health, Office of Compassionate Use: Low-THC Cannabis & Medical Cannabis – Implementation Timeline, http://www.floridahealth.gov/programs-and-services/office-of-compassionate-use/_documents/ocu-timeline.pdf (Oct. 2016).

[26] Id.

[27] Hilary Bricken, Florida Legalizes Medical Marijuana, So Now What? Here’s the 4-1-1, Canna Law Blog (Nov. 9, 2016), http://www.cannalawblog.com/florida-legalizes-medical-marijuana-so-now-what-heres-the-4-1-1/.

[28] Ryan Malkin, New York Cannabis Licensing: The Basics, Canna Law Blog (Apr. 30, 2015), http://www.cannalawblog.com/new-york-cannabis-licensing-the-basics/.

[29] Illinois Cannabis Applications: From The Front Lines, Canna Law Blog (Sept. 25, 2014), http://www.cannalawblog.com/from-the-front-lines-il-dispensary-applications/.

[30] Hilary Bricken, How To Get A Nevada Marijuana License. It Ain’t Easy, Canna Law Blog (June 2, 2014), http://www.cannalawblog.com/better-put-up-the-points-for-a-nevada-marijuana-license/.

[31] Bricken supra, note 24.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Cohen, supra note 6.

[38] Id.

[39] Id.

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Undercover Child Sex Sting Results in 22 Arrests

The Pensacola News Journal reported on September 17 that an undercover sting operation involving multiple local law enforcement agencies throughout the Florida Panhandle resulted in the arrest of 22 people. During a press conference at the Pensacola Police Department (PPD) on September 14, authorities announced that the sting targeting adults using the internet to solicit sex with children—dubbed “Operation Undertow”—was conducted between September 7 and September 11.

The sting resulted in the arrests of men from Alabama and Mississippi as well as a pastor from Pace, and State Attorney Bill Eddins said that the alleged offenders could face between five years and life in prison, depending on their specific charges. The PPD said that undercover agents posing as teenagers on various websites were contacted by alleged offender who agreed to meet them for sex, and the alleged offenders were arrested when they arrived at the arranged meeting locations.

According to the Journal, the PPD worked the investigation in coordination with the North Florida Internet Crimes Against Children Task Force and the help of the following agencies:

  • Brevard County Sheriff’s Office;
  • Cocoa Police Department;
  • Escambia County Jail;
  • Escambia County Sheriff’s Office;
  • Florida Department of Law Enforcement;
  • Gainesville Police Department;
  • Gulf Breeze Police Department;
  • Homeland Security;
  • Okaloosa County Sheriff’s Office;
  • Panama City Police Department;
  • State Attorney’s Office;
  • Tallahassee Police Department;
  • The Naval Criminal Investigative Service;
  • S. Marshal’s Service; and
  • Walton County Sheriff’s Office.

The Journal reported that Pensacola Chief of Police David Alexander said law enforcement agencies are still following leads and more arrests could still be forthcoming. “This effort of arresting and prosecuting these individuals helps to stop future abuse,” Alexander said at the press conference.

Sex Crimes Involving Children in Florida

Reality television programs such as NBC’s “To Catch a Predator” popularized the concept of police officers posing as children in order to catch alleged offenders committing online offenses. People who have been charged with online solicitation of a minor or traveling to meet a minor need to understand that these undercover tactics are not illegal and the fact that an adult was posing as a minor cannot be used as an affirmative defense against criminal charges.

Under Florida Statute § 847.0135(3), it is a third-degree felony punishable by up to five years in prison and/or a fine of up to $5,000 for an alleged offender to knowingly use a computer online service, internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to:

  • Seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child or another person believed by the person to be a child, to commit any illegal act described in chapter 794 (Sexual Battery), chapter 800 (Lewdness; Indecent Exposure), or chapter 827 (Abuse of Children) of the Florida Statutes, or to otherwise engage in any unlawful sexual conduct with a child or with another person believed by the person to be a child; or
  • Solicit, lure, or entice, or attempt to solicit, lure, or entice a parent, legal guardian, or custodian of a child or a person believed to be a parent, legal guardian, or custodian of a child to consent to the participation of such child in any act described in chapter 794 (Sexual Battery), chapter 800 (Lewdness; Indecent Exposure), or chapter 827 (Abuse of Children) of the Florida Statutes, or to otherwise engage in any sexual conduct.

An alleged offender who misrepresents his or her age in the commission of any alleged offense can be charged with a second-degree felony punishable by up to 15 years in prison and/or a fine of up to $10,000. Furthermore, each separate use of a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to commit an alleged offense listed above is treated as a separate offense, meaning that person who uses a computer 10 times to solicit minors for sex can face 10 counts of soliciting a child for unlawful sexual conduct.

Florida Statute § 847.0135(4) also makes it a second-degree felony for an alleged offender to travel any distance either within this state, to this state, or from this state by any means, and attempt to do so or cause another to do so or to attempt to do so for the purpose of engaging in any illegal act described in chapter 794 (Sexual Battery), chapter 800 (Lewdness; Indecent Exposure), or chapter 827 (Abuse of Children) of the Florida Statutes, or to otherwise engage in other unlawful sexual conduct with a child or with another person believed by the person to be a child after using a computer online service, internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to:

  • Seduce, solicit, lure, or entice or attempt to seduce, solicit, lure, or entice a child or another person believed by the person to be a child, to engage in any illegal act described in chapter 794 (Sexual Battery), chapter 800 (Lewdness; Indecent Exposure), or chapter 827 (Abuse of Children) of the Florida Statutes, or to otherwise engage in other unlawful sexual conduct with a child; or
  • Solicit, lure, or entice or attempt to solicit, lure, or entice a parent, legal guardian, or custodian of a child or a person believed to be a parent, legal guardian, or custodian of a child to consent to the participation of such child in any act described in chapter 794 (Sexual Battery), chapter 800 (Lewdness; Indecent Exposure), or chapter 827 (Abuse of Children) of the Florida Statutes, or to otherwise engage in any sexual conduct.

Prosecutors aggressively pursue maximum sentences for alleged offenders accused of either one of these crimes. It is always in the best interest of anybody accused of online solicitation of a minor or traveling to meet a minor to immediately contact a Tallahassee criminal defense attorney in order to review all of the possible legal defenses.

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Domestic Violence is NOT an Exception to the Warrant Requirement in Florida

Limitations on the Community Caretaking Exception to the Warrant Requirement in Florida

The Fourth Amendment provides:

“[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Although the Fourth Amendment prohibits “unreasonable” searches and seizures, certain warrantless takings are considered “reasonable” under certain exceptions to the warrant requirement. One specific exception applies when an officer engaging in “community caretaking.”

When the community caretaking exception applies, it must be performed to help those in danger. The Supreme Court has defined “community caretaking functions” as actions that are, “totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute.”

As a community caretaker, under limited circumstances, a law enforcement officer might even be justified in entering a home without a warrant. Prosecutors often argue that a “reasonable belief” is not the same thing as “probable cause” because a reasonable belief is often defined as a less exacting standard than probable cause.

If a law enforcement officer’s governmental interest of a certain function outweighs an individual’s interest in freedom from governmental intrusion, then a prosecutor will often allege that the law enforcement officer is justified in conducting a reasonable search in a residence without a warrant as a community caretaker.

Searches of a Residence after a 911 Call for Domestic Violence

Many community caretaking situations will arise after a 911 call about domestic violence or concerned citizens about a suspicious activity either in or around a residence. Prosecutors also raise the community caretaking exception when a law enforcement officer approaches a person “passed out” in a vehicle.

The Supreme Court wrote about community caretaking and domestic violence by stating, “No question has been raised, or reasonably could be, about the authority of the police to enter a dwelling to protect a resident from domestic violence; so long as they have good reason to believe such a threat exists, it would be silly to suggest that the police would  commit a tort [a civil wrong] by entering, say, to give a complaining tenant the opportunity to collect belongings and get out safely, or to determine whether violence (or threat of violence) has just occurred or is about to (or soon will) occur….”

Georgia v. Randolph, 547 U.S. 103, 118 (2006).

No “Domestic Violence” Exception to the Fourth Amendment

The criminal defense attorney in these cases will often file and litigate a motion to suppress evidence gained during an illegal entry into the home. It is important to recognize that there is no “domestic violence” exception to the Fourth Amendment. See United States v. Black, 482 F.3d 1035, 1040 (9th Cir.2007) (“we have stopped short of holding that ‘domestic abuse cases create a per se exigent need for warrantless entry’ ”) (quoting Brooks, 367 F.3d at 1136); United States v. Davis, 290 F.3d 1239, 1244 (10th Cir.2002) (declining to “grant[ ] unfettered permission to officers to enter homes, based only upon a general assumption domestic calls are always dangerous”) (emphasis in original).

Conclusion

When a warrantless search leads to criminal charges, it is important to retain a criminal defense attorney that understands how to file and litigate motions to suppress the evidence obtained from an illegal search and seizure. Understanding the limitations on the community caretaking exception is important in these cases.

The attorneys at Pumphrey Law, in Tallahassee, FL. Call today to discuss your case. We can begin your defense today.

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Does Leon County Need More Gun Control?

Teen Nightclub Shooting Reignites Debate Over Gun Control in Florida

In the wake of two children being killed and 19 others being wounded by gunshots early Monday morning at Club Blue nightclub in Ft. Myers, Florida, gun-control activists are seeking stricter gun laws to be put in place to prevent tragedies like this from reoccurring.

Advocates of stricter gun control laws believe that cities are not safe because there are too many guns being produced and sold. Gun control advocates also assume that legislation making it harder to purchase a firearm would instantly stop gun violence, thus, making America safer.

However, over restricting a United States citizen’s 2nd Amendment right to bear arms would be unconstitutional and factual data does not establish fewer guns equates to less violence. In fact, according to a CDC study, suicides account for roughly 64% of all gun-related deaths.

Open Carry Law in Tallahassee, Florida

In the Sunshine State, it is not illegal to possess a firearm. However, Florida Statute § 790.01 makes it illegal for a person to carry a firearm in public without a valid Concealed Weapons Permit.

Unlawfully carrying a concealed weapon in public without a valid Concealed Weapons Permit is considered a criminal offense and can result in the person’s arrest.

If you have been charged with an unlicensed carrying of a concealed firearm, discharging a firearm, felon in possession of a firearm, using a firearm while under the influence, or any other weapons offense, contact an experienced Leon County gun attorney at the Law Offices of Don Pumphrey, Jr. today at (850) 681-7777 for a free case evaluation regarding. The Law Offices of Don Pumphrey, Jr. represents clients throughout Tallahassee and the surrounding areas, including Leon, Bay, Jefferson, Wakulla, Gulf, Jackson, and other cities near and within Leon County, Florida.

Types of Firearm Offenses in Leon County:

Florida Statute § 790 contains several criminal offenses relating to the possession and use of firearms in public. Some of the criminal offenses that make the possession or use of a firearm illegal in Florida, include:

  • Unlicensed Carry of a Concealed Firearm;
  • Furnishing Weapons to Minors Under 18 Years Old ;
  • Improper Exhibition of a Firearm;
  • Discharging a Firearm in Public or on Residential Property;
  • Discharging Machine Guns;
  • Felons in Possession of a Firearm;
  • Domestic Violence Offenders in Possession of Firearm;
  • Using Firearm While Under the Influence; and
  • Prohibited Use of a Firearm Against a Law Enforcement Officer

Potential Defenses to Carrying a Concealed Firearm in Florida

Under Florida law, there are several defenses available to contest an allegation that a person was carrying a concealed firearm. Some of which are:

  • Defendant had a permit;
  • Defendant was not in possession of firearm ( firearm was not being carried on his/her person);
  • Weapon was not readily accessible; and
  • Weapon not found in the defendant’s exclusive control

Penalty for Unlawfully Carrying a Concealed Firearm in Florida

A person who is charged with the criminal act of carrying a Concealed Firearm without a valid Concealed Weapons Permit could potentially be convicted of a third-degree felony which carries a maximum penalty of 5 years in jail and a $5,000 fine.

If you have been charged with an unlicensed carrying of a concealed firearm, discharging a firearm, felon in possession of a firearm, using a firearm while under the influence, or any other weapons offense, contact an experienced Leon County gun attorney at the Law Offices of Don Pumphrey, Jr. today at (850) 681-7777 for a free case evaluation regarding. Law Offices of Don Pumphrey, Jr. represents clients throughout Tallahassee and the surrounding areas, including Gadsden County, Wakulla County, Liberty County and Jefferson County.

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Tallahassee One of the Top 10 Most Dangerous Cities in the U.S.?

Forbes recently unveiled its list of this year’s top dangerous American cities. Many Tallahassee residents were shocked to find their city on the list, much less in the number eight position. Other cities flagged as dangerous by the closely-read Forbes lists include Memphis, Tennessee; Las Vegas, Nevada; and Flint, Michigan. When asked to explain its rationale for Tallahassee’s appearance on the list, Forbes cited the city’s high rate of poverty and close proximity to the I-10, a much desired location for the drug industry.

According to the Uniform Statistical Data compiled by the FBI and used by Forbes in this study, the likelihood of a person becoming victim of a violent crime or property crime is high. Violent crimes in this study include forcible rape, murder, non-negligent manslaughter, aggravated assault, and robbery. One in 87 people are victims of violent crime in Tallahassee. As for property crime, the FBI defines this as theft over $50, burglary, auto theft, and arson. The chances of being victim of this type of crime are much higher with a rate of one in 17.

The Leon County Sheriff, Larry Campbell, takes offense to the Forbes list. The Sheriff recently told the Tallahassee Democrat newspaper that the Forbes rankings were skewed. He further commented that the FBI figures included, not just the city of Tallahassee, but the metropolitan statistical area as well. Additionally, the FBI’s Uniform Statistical Data used to determine these rankings by Forbes was never meant to categorize or rank cities in such a way. Tallahassee Police Chief Dennis Jones also commented that Tallahassee crime rates have gone done by 17 percent over the past 10 years.

While many Tallahassee locals and tourists remain doubtful about this dubious distinction, it may not be quite as far of a stretch as it seems. At the very least, it may be a sign that Tallahassee does have issues that need to be addressed and maybe the local government and law enforcement will pay them proper attention.

The Law Offices of Don Pumphrey, Jr. has certainly seen the impact of the current crime rates. The local law firm, founded by a former law enforcement officer and prosecutor, has represented clients who are in desperate need of a Tallahassee criminal defense attorney to avoid the serious consequences of conviction. Given the diversity of Tallahassee’s residents, this includes clients from every walk of life and throughout the city’s metropolitan area.

If you have been arrested for a violent or property crime in Tallahassee, it’s critical to consider your legal options. A defense attorney can help defend your constitutional rights and fight for favorable outcomes such as case dismissal, minimized charges, not-guilty verdicts, lowered sentencing, and other favorable options. With what you stand to potentially lose, it’s important to get the help you need today to avoid unfortunate outcomes and becoming another number in the FBI’s list of crime statistics.

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Attorney Don Pumphrey, Jr.

Attorney Don Pumphrey Jr. is a former prosecutor, former law enforcement officer, and a successful and experienced criminal defense attorney.

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553 E. Tennessee St.
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The information provided on this site is for general information purposes only. The information you obtain at this website is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your own individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Use of this website or submission of an online form, does not create an attorney-client relationship.

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Principal office located at: 553 E. Tennessee St., Tallahassee, FL 32308