SUBURBAN LEGAL MYTHS II

 

SUBURBAN LEGAL MYTHS II

 

There are numerous Urban Legends. The criminal defense lawyer deals with many Suburban Legal Myths.  Below is a list of some more Suburban Legal Myths, and a possible explanation of why they are believed to be true, and if there is in fact any truth to them.

 

 

1. The police cannot arrest me if I make it passed the borderline.

 

2. If I commit a crime, leave the country and return after the statute of limitations has run, then I cannot be convicted.

 

3. I can use my International Driver’s License to drive in Florida.

 

4. If I said, “no,” when the police asked to search my car, they would have searched it anyway, so I said, “yes.”

 

5. Since I own the car, or I was driving the car, I’m responsible for whatever contraband is found inside of it, so I may as well admit it is mine.

 

6. I had to tell the police the drugs were mine, even though they weren’t, or my girlfriend would have been found guilty of possessing them.

 

7. The police cannot search my locked glove compartment without a search warrant.

 

8. The police cannot search the trunk of my car without a search warrant.

 

9. I’m in trouble if the police find my prescription pills in an unlabeled container.

 

10. I stopped before the Stop sign, so what if I went past the stop bar.

 

11. I can’t drive barefoot.

 

12. I can’t drive at night with the dome light on.

 

13. Possession is nine-tenths of the law, and Finders Keepers, Losers Weepers.

 

14. I can shoot all trespassers.

 

15. I cannot be trespassed from a place for more than a year.

 

16. I cannot get a withhold of adjudication for a misdemeanor without getting probation.

 

17. I cannot get a withhold of adjudication for a felony if a jury finds me guilty.

 

18. Ignorance of the Law is never an excuse.

 

 

 “I MADE IT PASSED THE COUNTY LINE, SO YOU CAN’T ARREST ME NOW!”

 

Some clients like to mythically think that if they can just make it over the borderline to the next town, city, county, state, or country, then they’ll be home free.  They do not understand the concept of, “hot pursuit,”1 or “fresh pursuit,”2 or “Mutual Aide Agreements.”3 They like to think that it is just like in the movies and once they make it to the other side of the border, they can just stick out their tongue at law enforcement and laugh out loud, “Nanny-Nanny, boo-boo, you can’t touch me.”  But they won’t be laughing too long once they are handcuffed, and most likely charged with Fleeing and Eluding a police officer.4 And the Fleeing and Eluding charge can stick even if the police officer had no reason prior to the chase to stop the person.5

If a police officer observes a traffic infraction in his jurisdiction, and the person flees into another jurisdiction and or is pulled over in another jurisdiction, the police officer can in fresh or hot pursuit follow the traffic violator into the next jurisdiction to ticket the person.6  If while ticketing the person the police officer develops probable cause to arrest the person for a crime committed outside of the officer’s jurisdiction, the officer can also make the out-of-jurisdictional arrest.7  Though, a police officer can leave his or jurisdiction to effectuate an arrest for a crime committed in his or her jurisdiction this limited out-of-jurisdictional arrest power only exists for continuing offenses.8 Once the continuing effect of the offense has ended without the person being caught, then the freshness of the pursuit has grown stale, and the hot pursuit is now cold.9  The perpetrator is now safe from arrest by the police officers in the jurisdiction where the crime was committed. So the myth of making it past the county line has some reality to it.

But just making it to the next city, town, or municipality won’t have the same effect as making it to the next county, if the police officers in the jurisdiction where the crime was committed have entered into a mutual aide agreement with the police departments of the neighboring cities, towns or municipalities.  Such agreements may allow the police officers in the town where the crime was committed arrest powers in the neighboring cities, towns or municipalities.10

The myth of making it to the next state and watching the officers of Florida having to hit their brakes before going over the state line and thus ending their pursuit depends upon the laws of the bordering states as to whether they grant out of state police officers arrest powers. Florida grants officers of other states who are in fresh pursuit of a person suspected of committing a felony in those other states, arrest powers in the state of Florida.11

Now those who are successful in making it to the next county, state, or country sometimes mythically believe that if they are later caught they cannot be or perhaps will not be, extradited. Or if they haven’t made it to another state or country only to a different county, that if caught they won’t be transported back to the county from where they fled. They also believe that there is some mythical magic number that if while waiting in jail to be extradited or transported they are not picked up within (usually ten (10) days), then their case is dropped.

The ten-day limit to transport though not statutory in nature is sometimes applied by Judges to persons picked up on out-of-county fugitive warrants.  If the other county does not send anyone to pick up the person within ten-days then the Judge in the county where the person was arrested may release the person, set a bond, or set another date for transport. Obviously, there will come a point where if the person is not picked up, he or she has to be released.12

If a person is hiding out in another state and is arrested by that state on a Florida Governor’s warrant, then Florida can demand that the person be extradited back to Florida.13  Generally, officers from Florida must pick up the fugitive within thirty (30) days of the person’s arrest in the other state.14  If the Florida officers do not appear within this time, then the person may be released from custody,15 but this release from out-of-state custody does not mean that the person’s Florida case will be dismissed. Of course, Florida can decide because of cost issues or any other reason to never extradite. The myth of there being a magic number to be picked up by or released from jail has some merit to it, but not necessarily the myth of not being picked up resulting in the case being dropped.

Obviously, the safest place to be is in a country that does not have an Extradition Treaty16 or a Mutual Legal Assistance Treaty17 with the United States, because without one of those Treaties there is no legal basis to extradite a person back to the United States. But if the person is hiding out in a country that does have an Extradition Treaty or a Mutual Legal Assistance Treaty with the United States, Florida Law Enforcement officers besides being able to extradite the person through the traditionally legal methods, are also allowed to orchestrate a kidnapping of the person hiding out,18 or what should otherwise be referred to as self-help extradition.

 

“I JUST GOT BACK FROM CAPE VERDE,19AND THE STATUTE OF LIMITATIONS HAS RUN, SO YOU CAN’T TOUCH ME!”

 

Now, having made it to the next town, city, county, state, or even country without being caught, transported, or extradited, some people like to think that as long as they can stay out of the jurisdiction they committed the crime in until the statute of limitations has run, then they are home free or free to return home. Usually, the myth has the person hiding out in some exotic island with a new identity or in some obscure town in some state far from Florida until the limitations period has expired. Once expired, the person believes that they can then return to the scene of the crime immune to prosecution, and once again stick out their tongue at law enforcement and laugh out loud, “Nanny-Nanny, boo-boo, you can’t touch me.”

However, not all crimes have a statute of limitations.  For instance since October 1, 1996 there is no longer a statute of limitations for murder or any felony resulting in a death.20  Now as for the crimes that do have a statute of limitations, prior to July 1st, 1997 the myth of leaving the state and hiding out until the statute of limitations was over had some reality behind it. In the good old pre-July, 1st 1997 days, if the state filed an information within the statute of limitations period and the person was continuously absent from the state of Florida, the person still had to be arrested without unreasonable delay.21 In fact, the pre-July, 1st 1997 days were so good that in certain situations even if a person had been arrested within the statute of limitations period, and then failed to appear at their next court date, the person still had to be served with an information within the limitations period or without unreasonable delay, or the case would be dismissed.22

As for the non-arrested in those good old days, if the state was able to show that the person was continuously absent from Florida or had no reasonably ascertainable place of abode or work in Florida, then the statute of limitations period was tolled.23  But the total period tolled could not extend more than three years beyond the applicable limitations period.24  If however, the state could show proof of diligently searching for the person,25 then the delay in arrest could be considered reasonable in some instances even if such delay went well beyond the aforementioned three-year extension.26  Thus, prior to October 1st, 1996 if a person remained outside of Florida until the expiration of the statute of limitations plus the three-year tolling period, and the state was unable to prove a diligent search and reasonable delay, then it was quite possible to get away with murder. For instance, if the state through a diligent search knew the whereabouts of the person out of state, but took no steps to extradite the person or arrest the person before the statute of limitations and the tolling period had run, then the delay would most likely be deemed unreasonable, and the person would get away with whatever crime had been committed.27

Since July 1st 1997, not only can’t a person get away with murder by staying far away, but if the person commits any other crime with a limitations period, and is absent from the state of Florida then the state’s failure to arrest or extradite the person on the information, indictment or other charging document will no longer constitute an unreasonable delay.28  Furthermore, the maximum three-year extension of the applicable statute of limitations period no longer applies to a person who has not been arrested or extradited due to the person’s continuous absence from Florida if the person has been timely charged by information, indictment or other charging document.29  In other words, there is no longer a ceiling on how long the statute of limitations can be extended or tolled for a person who is continuously absent from the state of Florida in the above-mentioned scenario.30  But the state still has the burden of proving that the person was continuously absent from the state during the limitations period applicable to the crime committed.31 As for anyone who has been arrested, failing to appear at a court date and staying away beyond the statute of limitations no longer has the same effect as it used to because the filing of an information, indictment or other charging document within the statute of limitation period commences the prosecution.32

So though the myth of getting away with murder by hiding out in Figi is no longer viable, if after stealing a couple of million dollars worth of diamonds a person hides out in Cape Verde until the limitations period has run, and the state can’t prove the person was gone, or that they diligently searched for the person, then the myth of getting away with the perfect theft may become a reality.33

 

 

 

 

“I CAN DRIVE ON MY NEW MEXICO OR MY MEXICAN DRIVER’S LICENSE.”

 

Now, the people who aren’t extradited to Florida, but who voluntarily move here from other countries and or other states believe that they can use their out-of-state or out-of-country driver’s license to drive in Florida.  They mythically believe this to be true even when their privilege to drive in Florida has been suspended.

The basis in truth for the out-of country driver’s license is that a foreigner visiting the United States can drive in Florida if the person has a valid driver’s license issued from the country the person resides in.34 The basis in truth to the myth of the out-of-state driver’s license is that a person visiting Florida from out-of-state can drive in Florida with their valid out-of-state driver’s license while visiting Florida.35 But where the myth remains a myth is when the visiting foreigner or the visiting out-of-stater, believe they can drive in Florida on their valid driver’s license when their privilege to drive in Florida has been suspended. They do not understand how they can be charged with driving with a suspended Florida driver’s license when they were never issued or had a Florida driver’s license to begin with.36

The myth continues to remain a myth when people think they can use their foreign driver’s license and or out-of-state driver’s license after they have worked in the state of Florida for more than thirty days. Generally, anyone who works in Florida must obtain a Florida Driver’s License within thirty days of starting work here.37 Naturally, there are some exceptions to this rule,38 but usually the people driving around in Florida with their valid New Mexico and or valid Mexican driver’s license do not fit under any of these exceptions.  Usually, they work here and even reside here (usually illegally, but not always), and either they cannot obtain a Florida driver’s license because of their illegal status, and or their privilege to drive in Florida has been suspended and or revoked.

The myth of the International driver’s license is truly a myth, since a license by such a name does not even exist. Proving that a license by any other name unlike a rose is not so sweet.39 The basis in truth to the International driver’s license myth is that there does exist something called an International Driver’s Permit (IDP).40 But an International Driver’s Permit is not a driver’s license, either. As previously stated the only driver’s license a foreign visitor needs to drive in Florida is a valid driver’s license from the country where the person resides.41  The purpose of the IDP is to help verify the otherwise validity of the foreign visitor’s foreign driver’s license (which may not be in English, while the IDP is), but it is not necessary to have.

The ultimate reality behind the myth of the out-of-state and foreign driver license being allowed to be used in Florida as a valid driver’s license is the mythical belief that everyone who moves to Florida must obtain a Florida driver’s license within thirty (30) days of becoming a Florida resident. This myth is so prevalent that it is cited as law in the Florida Driver’s Handbook.42 But there is no statute or Administrative code that can be found that requires everyone who moves to Florida to obtain a Florida driver’s License within thirty (30) days of becoming a Florida resident.

A Florida resident is defined in Florida Statute 322.01(35), as one who has his or her principal place of domicile in Florida for a period of more than six (6) consecutive months, has registered to vote, has made a statement of domicile pursuant to s. 222.17, or has filed for homestead tax exemption on property. Florida statute, 322.031(1) requires certain nonresidents to obtain a Florida driver’s license within thirty (30) days of accepting employment, engaging in any trade, profession, or occupation, or enrolling children in public school. But a childless person who doesn’t work could move to Florida. And there is no statute or rule that requires this type of person to obtain a Florida driver’s license within thirty (30) days of moving to Florida or of becoming a Florida resident.

Florida statute, 322.03(1) states that except as otherwise authorized in this chapter a person may not drive any motor vehicle upon a highway in Florida unless the person has a valid driver’s license issued under this chapter. The only driver’s license issued under this chapter is a Florida driver’s license. So this statute along with the other previously mentioned statutes in Chapter 322 requiring certain nonresidents to obtain a Florida driver’s license and authorizing other nonresidents to use their out-of-state or foreign driver’s license in Florida, suggests and infers that all Florida residents must have a valid Florida driver’s license to drive in Florida. But there is no statute or rule that actually comes out and says a person must obtain a valid Florida driver’s license within thirty (30) days of becoming a Florida resident.43

 

“THEY WERE GOING TO SEARCH MY CAR ANYWAY.”

 

Then there are the Florida residents who have valid Florida driver’s licenses, but who speed around town in a car with broken taillights, headlights, brake lights or tag lights (sometimes all at the same time), and a trafficking amount of drugs inside of their vehicle, who when asked, readily agree to let the police search their car. These people are at least slightly more sophisticated than the people who drive the same way with trafficking amounts of drugs in their car, but who are also driving on a suspended Florida driver’s license, or a mythical International driver’s license, or an out-of-state driver’s license when their Florida privilege to drive has been suspended or revoked. All of the above are of course people who would have benefited from attending CILE I (Continuing Illegal Education) for Drug Dealers and Users,44 or at least a really good Civics course.

When asked by their lawyer why they allowed the police to search their car, knowing there were not only drugs in it, but a trafficking amount of drugs, they give the Family Feud’s number one answer on the board: “Because they were going to search it anyway.” Well, that may have been true, but now we’ll never know. And if it was true, and the police did not have probable cause to search, and they didn’t lie about the person saying, “no” when asked to search, then there would be a good motion to suppress.  Granted these are a lot of “ifs” making the myth of, “they were going to search it anyway,” seem quite real.  Other popular answers on the board are,  “I didn’t think there was anything in my car,” “I thought I got rid of that,” “I forgot about that,” and “I didn’t think they’d find it.”

Another all-time favorite which is similar to, “they were going to search it anyway,” is, “If I had said, ‘no’ to the search, then they would have thought I was trying to hide something, and that would have given them a reason to search.”  This is of course circular logic of the, “damned if I say ‘yes,’ and damned if I say, ‘no,’” variety. Those who have taken CILE I for Drug Dealers and Users would know that since they are in fact hiding something they should always say, “no,” knowing that their, “no,” cannot be used to provide probable cause to search.

Better defense answers as to why a person consented to the search are of course, “They told me if I didn’t consent they were going to release the hounds or K-9s,”45 and or “get a search warrant.46” Of course for a motion to suppress to be granted in these situations the police have to agree to having made those statements or the statements have to have been caught on video. Or else a Judge has to find the accused drug dealer and or addict more credible than the police officer(s).

Without something more, the police aren’t supposed to detain drivers or passengers who are stopped for traffic infractions any longer than is reasonably necessary for the officer to write a citation.47 Which also includes the time it reasonably takes to check for any warrants, the status of the person’s driver’s license, insurance, and registration. (And of course unofficially the time it takes to get a K-9 to the scene.) Usually, the police will wait until after they have checked warrants, verified the license, returned the license to the driver, and handed the driver the citation, or given the driver a written or verbal warning, and sometimes even telling the driver he or she is now free to leave, before asking for consent to search. Usually, any consent received under this scenario is deemed voluntary.48 But if the consent comes during an unlawful detention (i.e. after the purpose of the stop is complete) and a reasonable person would still not feel free to leave, then usually any consent to search the contraband-laden vehicle will be found involuntary.49

The lessen to be learned here is, even though the police might search anyway, whenever they ask for consent to search for drugs or anything else, just think of Nancy Reagan, and, “Just Say NO!!!”

 

“I WAS DRIVING SO I’M RESPONSIBLE FOR EVERYTHING IN THE CAR.”

 

It’s bad enough when a person allows the police to search his or her car, but then upon the officer finding the contraband some people compound their situation by admitting the contraband belongs to them. And the worst part is they make this admission even when there is more than one person in the car and the contraband is found in an area where it could belong to any of the vehicle’s occupants.  In other words, had the person kept quiet, there would be no way to prove the person committed the crime without their admission.

So why make the admission?  Well, the number one answer on the board (or “the survey says…”) during this situation is usually the person’s mythical belief that as the driver or the owner of the car, the person is guilty anyway so why lie or deny or remain silent. Why let someone else take the ride, when the rap belongs to the owner or driver.  While it is true, that if the owner-driver is the only person in the car when the contraband is found, it may be virtually impossible to get a Judgment of Acquittal,50 this does not mean that a jury won’t find the person not guilty. And if the sole occupant driver is not the owner of the car, then a Judge may even grant a Judgment of Acquittal,51 or as the Trier of Fact find the person not guilty.52 Of course if the owner-driver or non-owner-driver is not the sole occupant of the vehicle, and the contraband is not found in plain view,53 there are no plain smells,54 and no admissions55 are made, then it may be virtually impossible for the state to avoid a Judgment of Acquittal.56 Obviously, the state will have the same problem when the only two people in the car are the non-owner driver, and the owner-passenger.57

Naturally, the myth that the driver and or owner are responsible for what is found in the car has its basis in truth from the fact that the owner owns the vehicle and the driver is in charge of the vehicle.  The driver and or owner also have the authority to consent to a search of the car, and have standing to contest an unlawful search of the car.58 But as previously stated above, the only time it can truly be said that the driver-owner is responsible for what is found in the car is when the driver-owner is the only person in the car.59 And even then, a jury could still find this person not guilty, if it can be shown the contraband belonged to, or could have belonged to, someone else.60 So what all this means is no matter who is in the car all occupants should always act surprised when contraband is found, remain silent and or deny knowledge of the mysteriously found contraband.

Again, it should be pointed out that all of these people who find themselves in these situations could besides benefitting from CILE I for Drug Dealers and Users could also benefit from CILE II for Drug Dealers and Users, where an acting coach coaches the dealers and users on how to act surprised.61  Ultimately though, it is a myth to believe that a vehicle’s occupant status as an owner-driver or owner-non-driver in and of itself makes that person responsible for everything found inside the vehicle.

 

“I HAD TO LIE, AND SAY IT WAS MINE, OR MY GIRLFRIEND WOULD HAVE TAKEN THE RAP.”

 

Perhaps, the second most popular reason a person lays claim to the contraband found in a car is, “I said it was mine, so my girlfriend/boyfriend/friend/relative (and whoever else was in the car) wouldn’t be arrested.”  Now, this certainly seems noble especially if it really is the person’s and no one else in the car had any idea about it.  But, if everyone remains silent as to whom the contraband belongs to then the old saying, “You can beat the rap, but you can’t beat the ride,” will most likely hold true for all of the occupants in the vehicle.62

Now, before Maryland v. Pringle, 540 U.S. 366 (December 15th, 2003) if everyone remained silent, the police might still arrest everyone in the car, but in some situations it would be illegal to do so.63 Post-Pringle if everyone remains silent the police have probable cause to arrest everyone in the car. But even post-Pringle if the police do not ask everyone in the car if the contraband is theirs before arresting everyone, then in some situations it will once again be illegal to arrest everyone in the car.64

Of course, just because one person admits it’s theirs doesn’t guarantee that the police still won’t arrest everyone in the car.  But it certainly makes it quite difficult, if not in most instances, impossible to convict the other occupants. So there is certainly a basis in truth to the myth, “I had to say it was mine, so my girlfriend wouldn’t be arrested.” But there is not as much of a basis in truth to the myth of, “I had to say it was mine, so my girlfriend wouldn’t be found guilty of the charge,” because admitting guilt isn’t the only way to achieve this result, and it certainly isn’t the best way.

 

“YOU CANNOT SEARCH MY LOCKED GLOVE COMPARTMENT WITHOUT A SEARCH WARRANT.”

 

Then there are those who think they are too smart for CILE I and II for Drug Dealers and Users, and that it is okay to consent to a search of their vehicle for drugs because the contraband is tucked away safely in a locked glove compartment that they mythically believe the police are not allowed to enter without a search warrant. There are also those who really are too smart for CILE I and CILE II for Drug Dealers and Users, but not as smart as they think who mythically believe that even if the police have probable cause to search a locked glove compartment, they would still need a search warrant.  Unfortunately, if the police have probable cause to search a locked automobile for contraband than they do not need a search warrant to search any part of that locked automobile.65 Generally speaking, there are fifty ways to leave your lover,66 and four ways for the police to legally get into a locked glove compartment without a search warrant. 1. Consent to search. 2. Probable Cause to search. 3. Search Incident to Arrest, and 4. An Inventory Search.

As long as an officer does not exceed the scope of the given consent then the search will be upheld. The scope of the given consent is determined by what it is objectively reasonable to search under the circumstances.67 Those circumstances depend on what the officer is asking permission to search for, and where and how the officer is asking to search the car.  For instance, is the word, “search” used as opposed to just asking to, “look inside,”68 “look in,”69 “look around,”70 or “look into the vehicle.”71 Is the officer asking to search for a gun, drugs, paperwork, or just anything illegal?

The easiest way for an officer to get inside a locked glove compartment is to simply ask a person for permission to search inside the locked glove compartment. If the person says, ‘yes,’ the officer can use a key or even break into the glove compartment. If an officer is granted permission to search for anything illegal inside a vehicle this permission would arguably not allow an officer to break into or use a key to open a locked glove compartment, or for that matter a locked center console.72 But some courts might uphold this kind of search if it took place in the person’s presence and the person did not verbally or non-verbally object to the search of the locked glove compartment or locked center console or locked secret compartment.73

If an officer has probable cause to believe that there is contraband in a locked glove box, then the officer can break it open without a search warrant, despite the objections and protestations of the owner.74  But the locked glove compartment can only be searched incident to lawful arrest if the person arrested is a recent occupant of the vehicle, and is unsecured and within reaching distance of the vehicle at the time of the search,75 or if it is reasonable for an officer to believe that a search of the locked glove compartment will produce evidence relevant to the crime for which the person has been arrested.76 Finally, an inventory search can only result in a search of an impounded vehicle’s locked glove compartment if the arresting agency has a standardized criteria allowing for the search of a locked glove compartment during an inventory search, and that criteria is followed.77 The officer must also conduct the inventory search in good faith, meaning that the search is not performed as a subterfuge for an investigatory search.78

So though a search warrant is unnecessary to search the locked glove compartment of a car, this does not mean that the police have carte blanche to break into the locked glove compartment.  On the other hand, if they have the requisite probable cause then they can pretty much have free rein to go French Connection79 on the car.

 

“YOU NEED A SEARCH WARRANT TO OPEN MY LOCKED TRUNK.”

 

There are also those who mythically believe that a search warrant is needed to search the locked trunk of a vehicle. Certainly, this makes even more sense than believing one is needed for a locked glove compartment which is part of the inside of the car.  Unless of course instead of a trunk, the person has a hatchback,80 which is also considered a part of the inside of the car, and would certainly be treated the same as a locked glove compartment. As would the cab of a truck,81 but not necessarily the bed of a truck.82

For the most part, the same ways the police can enter a locked glove compartment without a search warrant, are the same ways they can open a locked trunk. A person who gives general consent for an officer to search for anything illegal in a vehicle doesn’t necessarily also give consent to search a locked trunk.83 But once again, if the search of the locked trunk is done in the presence of the person giving consent, and that person does not verbally or non-verbally object to the officer opening the locked trunk, then the search will be upheld.84 Interestingly, however, consent given to search a locked trunk does not extend to a locked briefcase or any other locked or sealed items found inside the trunk.85

Obviously, if there is probable cause to believe contraband is in the trunk, then all bets are off, and the police can search the trunk without a search warrant.86  The search incident to arrest scenario is very different with a locked trunk than with a locked glove compartment. There is an added element of the police having to find some sort of contraband in the interior of the vehicle before they are allowed to search the locked trunk incident to arrest.87 Which basically means that a search incident to arrest does not extend to the locked trunk of the car.

The inventory search of the locked trunk must be conducted in the same way as the inventory search of the locked glove compartment. As in all inventory searches, there must be an established standardized criteria or routine that is followed and employed during all such searches.88  A person’s vehicle cannot usually be impounded if the person is arrested for a petty offense and the vehicle is not causing any traffic problems.89 Furthermore, if the person has not committed a felony, and the person’s vehicle is parked in a hotel or motel where the person is a guest or is parked on private property where it is allowed to be, then it usually cannot be legally seized or impounded, thus negating the need for any inventory search.90

The myth of the need for a search warrant in Florida to search a locked glove compartment and or locked trunk of a motor vehicle has been a myth since at least 200691 for Floridians guided by the decisions of the Second District Court of Appeal. 199992 for those adhering to the decisions rendered by the Fifth District Court of Appeal. 199093 for Court watchers living in the jurisdiction of the First District Court of Appeal, and even earlier for those who follow the decisions of that most Supreme Court in the land as Florida courts are bound to do when interpreting the Fourth Amendment.94 Accordingly, the automobile exception to the search warrant requirement allows any vehicle (locked or unlocked) to be searched at any time, at any place, even after the vehicle has been immobilized, as long as there is probable cause to believe that the vehicle contains contraband or any evidence of any crime.95

 

“YOU CANNOT KEEP YOUR PRESCRIPTION PILLS IN AN UNLABELED PILL CONTAINER!”

 

The police having broken into the locked trunk and or the locked glove compartment without a search warrant find prescription pills not in the bottle(s) the pills were originally packaged in. Some people mythically believe that it is a crime to keep their legally acquired prescription pills in an unlabeled pillbox or in a pillbox labeled with the first letter of every day of the week. The reason some people believe this is at one time it was in fact against the law.  Back in 1981 a statute was passed that made it a second degree misdemeanor to possess a controlled substance lawfully dispensed by a pharmacist or practitioner, in a container other than that in which the controlled substance was originally delivered.96 Luckily, cooler heads prevailed in the Judiciary branch and in 1984 the statute was held unconstitutional.97 But during those three intervening years it is quite possible that crimes committed by little old ladies were at an all time high.

Another myth that is closely related to the unlabeled pill box myth is the belief that it is illegal to possess legally prescribed pills in a prescription  pill bottle labeled for different legally prescribed pills. For instance, is it illegal to have the legally prescribed Levitra pills in the legally prescribed Viagra pill bottle? The answer is although it probably isn’t, there is an argument that it could be more than just a myth. The statutes and case law dealing with crimes for misbranded pill bottles seem to be targeted at the manufactures and sellers of prescription pills, not the users.98 But some of the language in these statutes could possibly be used to target users. For instance, Florida statute, 499.00799 states that, “a drug…is misbranded if it’s labeling is in any way false or misleading.” Florida Statute, 499.005100 makes it unlawful to misbrand a drug or hold a misbranded drug or possess a misbranded drug. Florida Statute, 499.0051101 makes it unlawful to knowingly possess or hold a misbranded drug. So holding or possessing the Levitra pills in a pill bottle labeled Viagra is false, but false to whom? To oneself? And if the pill bottle is really just being used to hold one’s pills it’s hard to believe that the aforementioned statutes were meant to punish this type of activity.

Obviously, the safest thing to do is to always carry around your pills in their respective prescription pill bottles (as ridiculous and impossible as this may be) or at least have copies of your prescriptions with you.

 

 

“I STOPPED BEFORE THE STOP SIGN!”

 

One way to avoid any kind of a search of a car that will result in the police finding any kind of prescription or non-prescription pills or anything else is to obey all traffic laws. Something the takers of CILE I for Drug Dealers and Users know all about.  Of course to obey these laws, a person has to first know what they all are. Some people mythically believe that as long as they come to a complete stop before the stop sign then they’ve complied with the law. There actually is some truth to this if there is no stop line or bar or cross walk located before the stop sign. But if there is a stop bar or line, then the person must come to a complete stop before the stop bar or line.102 If there is no stop bar or line, but there is a crosswalk, then the person must come to a complete stop before entering the crosswalk.103 If there is no crosswalk then a person must come to a complete stop at the point nearest the intersecting roadway where the driver has a view of approaching traffic on the intersecting roadway, before entering the intersection.104 Which one would hope is located somewhere before the stop sign.

The myth that it is the stop sign and not the stop bar or line that you must stop before may also have come about because when it comes to a red light, the stop bar or line is irrelevant. For a red light a person must stop before entering the crosswalk.105  The stop bar or line can be ignored. But the real reason the myth of the stop before the sign, and not the line came about is it makes no sense to have to stop before a stop bar or line that is located five to fifteen feet before an intersection where the view of oncoming traffic is more often than not obstructed by trees, hedges, signs, poles and anything else that can be put in the way.106

 

“I CAN’T DRIVE BAREFOOT?”

Before failing to stop at the stop bar, the officer observed the driver get into the drivers’ side of the car barefoot. Some people mythically believe that it is a violation of Florida’s traffic laws to drive barefoot. Obviously, these people did not grow up in Barefoot Bay, Florida, or anywhere else in Florida near the beach.

It is not illegal to drive a car barefoot in Florida or anywhere else in the United States. Perhaps the basis in truth to this myth comes from the fact that it is illegal to drive a motorcycle without shoes in Alabama, and on certain Indian Reservations.107  And of course, because it is probably not the safest thing to do, and an accident could a cause a Florida driver to be branded an, “Unsafe Driver” on their Florida Driver’s License.

 

“I CAN’T DRIVE AT NIGHT WITH THE DOME LIGHT ON.”

 

Not only can you drive barefoot in Florida, but despite popular myth it is also okay to drive at night with the dome light and or any other interior lights on.  The only caveat is that those lights should not be blue or red, since Florida Statute, 316.2397 makes it illegal for most people to have red or blue lights visible from the front of their vehicle.108

The basis in truth to this myth probably comes from parents yelling at their children on long trips to turn the dome light off.  Or from parents turning the lights on to yell at their children, and then telling the children that they were acting so badly they were making the parents commit illegal acts, and if the children didn’t cut it out, everyone would be in trouble.

 

BUT I FOUND IT ON THE BEACH, SO IT’S MINE TO PAWN!”

 

The expression, “Possession is Nine-Tenths of the Law,” is certainly not a saying a person wants to hear when after driving around barefoot with the dome light on, the driver is pulled over and contraband is found in the person’s car. Better to hear an officer say, “Finders keepers, losers weepers,” and then discard the contraband, and leave the person alone with no more than a warning.  The adages “Possession is Nine-Tenths of the Law,” and “Finders keepers, losers weepers,” have been around since forever.   But is there any truth to them, or are they just merely myths.

If possession is in fact nine-tenths of the law, then the criminal defendant has to worry a lot about that remaining one-tenth if the property is recently stolen. A person who pawns recently stolen property can be charged with dealing in stolen property, if it can be shown beyond a reasonable doubt that the person knew or should have known that the pawned property was stolen.109 And unless a person can satisfactorily explain how he came into possession of the recently stolen property that he pawned the possession alone will give rise to an inference that the person knew or should have known that it was stolen.110 Without a satisfactory explanation, a jury instruction regarding this inference will be read to the jury.111 This same person can also be charged with knowingly giving false verification of ownership to a pawnbroker. 112

So will the old sayings, “Finders keepers, losers weepers,” and “Possession is nine-tenths of the law,” save the day if the person says he found the recently stolen property that he pawned on the beach?  Will that be a reasonable explanation that prevents a Judge from giving the jury instruction regarding recently stolen property?113 And what about the False Verification charge? The answer can be found in Florida Statutes 705.101(2), 705.102, 705.103, and 705.104, which define lost property, and what to do with it when it is found. Lost Property is, “any tangible property in substantially operable condition or has an apparent intrinsic value, which has been mislaid on public property without anything identifying who owns the property.”114 A person finding such property, who wants to keep it for his or her self, must first give it to the police to hold.115 Title to lost property passes to the finder after ninety (90) days have passed without anyone laying claim to it.116 Anyone who finds lost property and keeps or appropriates it for his or her own use without first giving it to the police has committed a theft.117

Someone could certainly stumble across property on the beach that had been recently stolen, but even if that is a reasonable explanation that prevents the recently stolen property instruction from being read, the act of pawning the found property instead of giving it to the police is a theft.  So even though the person had no idea the property found was stolen, by keeping it the person has now stolen it, and is arguably dealing in stolen property when he pawns it, as well as having given false verification of ownership to the pawnbroker. Thus the only person weeping now is the finder, who wishes he never found it in the first place.

Certainly possession may be nine-tenths of the law, and finders keepers, losers weepers may be the end result, but only in situations where there is no one around who can prove proper claim to the lost and found property. If there is someone around, then these old sayings are merely mythical maxims.

Anyone who has ever taken the Introductory course for Continuing Illegal Education (Intro to CILE) would know that one of the rules for avoiding ever being charged with a crime is to never, under any circumstances whatsoever, pawn anything. As Shakespeare once said, “Neither a Pawnor nor Pawnee be.”118

 

“ALL TRESPASSERS WILL BE SHOT.”

 

If someone other than a police officer tries to unlawfully and forcefully enter a person’s vehicle to “search” it before certain property is pawned while the person is still inside of that vehicle, then pursuant to Florida Statute, 776.013 (The Stand Your Ground Law) the person can use deadly force to prevent this “search,” and pursuant to Florida Statute, 776.032 this same person can receive immunity from prosecution for using that deadly force.

The Stand Your Ground Law has been around for six years now, but there is still some confusion as to its application to real life situations. For instance, the Stand Your Ground Law does not mean that signs that read: All Trespassers Will Be Shot, is now lawful to carry out. Just because someone happens to walk or cut across the yard or land where your dwelling is located, does not now mean that you can stand on your porch and start picking them off like metal ducks in a carnival game. And it’s also not true that you have to at least wait until they knock on your door before you can start picking them off. But it’s probably not as effective to have a sign that reads: Some Trespassers May Be Shot, Depending Upon The Circumstances Of The Trespass, And My Aim. So who can be shot, and when can you shoot them? And is there ever any truth at all to the signs that read, All Trespassers Will Be Shot.

Basically, you are allowed to open fire on anyone who is unlawfully and forcibly trying to enter your dwelling. The definition of dwelling found in Florida Statute, 776.013(5)a includes any attached porch, but does not include the curtilage thereof. Florida Statute, 776.032 grants immunity to anyone who adheres to Florida Statute, 776.013. Which means immunity is granted to anyone who shoots a person who is unlawfully and forcibly trying to enter a dwelling, which includes the attached porch of the dwelling, but not the curtilage thereof. And this would seem to mean that even if the yard and or land around the dwelling is fenced in or has some form of an enclosure that unless a person is unlawfully and forcibly entering the dwelling or the attached porch, a person will not be granted immunity if they start shooting. But Florida Statute, 776.013(3) also allows a person to shoot anyone who is committing a forcible felony, and Florida statute, 776.08 defines burglary as a forcible felony. And Florida statute 810.011(2) defines dwelling for the purposes of a burglary as including any “attached porch…together with the curtilage thereof.” And finally, curtilage has been defined to include any land surrounding the dwelling that has some form of an enclosure around it.119

So what all this seems to mean is that if a person is lawfully at a dwelling which is surrounded by land that is fenced in or has some form of an enclosure, and people start walking or cutting across the enclosed land with the intent to commit an offense therein other than trespass, then any person lawfully at the dwelling can in fact stand on the porch and start picking these people off like metal ducks in a carnival game. Thus, in certain instances a sign that reads: All Trespassers Will Be Shot,” is arguably legally acceptable, and not so mythical.  Not that this open range shooting should be in any way advocated, especially if the person walking on and or cutting through the enclosed land has no intent to commit an offense therein besides trespass.  In which case you’ve just shot a mere trespasser, and that is not allowed.

 

THEY CAN’T KEEP ME AWAY FOR MORE THAN A YEAR!

 

Then there are the trespassers who even after being shot or otherwise issued a warning to stay away, mythically believe that a trespass warning can last no longer than a year.  They think that after a year all trespass warnings grow stale or expire.

The truth behind this myth is of course that some trespass warnings are only limited to six months or a year, but they don’t have to be.120 There is no statutorily set time limit.121 These warnings can theoretically last forever.122

But the reality is, if there is no record of the written warning or no one around who remembers giving the oral warning then for all intents and purposes the warning has grown stale.

 

“ I CANNOT GET A WITHHOLD OF ADJUDICATION FOR A MISDEMEANOR WITHOUT GETTING PROBATION.”

        

A person charged with trespass after a non-stale warning who wants a withhold of adjudication, but who would rather serve jail time than a period of probation may be confused as to whether this is even possible. The confusion relating to the myth of the misdemeanor withhold runs rampant throughout the criminal system with everyone from Judges to lawyers to Court clerks to Bailiffs to even a few Court watchers having a difference of opinion on the subject.

The popular myths relating to the mythical misdemeanor withhold are as follows: 1.) A person found guilty of a misdemeanor offense after a jury trial must be adjudicated guilty. 2.) A person cannot receive a withhold of adjudication for a misdemeanor offense without also being sentenced to a term of probation. 3.) If the misdemeanor sentence includes any jail time without the person being placed on probation or the jail time as a condition of probation, then the person must be adjudicated guilty.

The reasons for the aforementioned myths or the reality behind them have to do with changes in the law and the fact that some of the above is true for a felony, but not a misdemeanor.123 A person found guilty of a misdemeanor offense after a jury or non-jury trial can receive a withhold of adjudication. However, Florida Rule of Criminal Procedure, 3.670 states that this can only happen if the person is also sentenced to a term of probation, whereas Florida Statute, 948.01(2) allows for a withhold of adjudication without probation. 124  When there is a conflict between a statute and a rule of procedure regarding substantive law the statute controls.125  Whether or not a person can have adjudication of guilt withheld or not is a sentencing issue, which is arguably a substantive question of law.126 This means the statute controls and that a person who is found guilty after a non-jury or jury trial can have adjudication of guilt withheld without also being placed on probation.  Both the statute and the rule are in harmony regarding the outcome when a person pleas guilty or no contest to a misdemeanor offense. In this situation a person can receive a withhold of adjudication without the necessity of having to be placed on probation.127

Finally, there does not seem to be any rule or statute prohibiting a person who pleas guilty or no contest to a misdemeanor offense from receiving a withhold of adjudication and a sentence of jail time without probation.128 The statutes, the rules, and the case law interpreting those statutes and rules to only allow a withhold of adjudication when incarceration is given as a condition of probation have to do with felonies only.129

 

“I CANNOT GET A WITHHOLD OF ADJUDICATION FOR A FELONY IF A JURY FINDS ME GUILTY.”

 

The number of people who cannot solve the mystery of the mythical misdemeanor withhold, pales in comparison to the number of people who believe that a Judge does not have the discretion to withhold adjudication of guilt after a Jury has rendered a guilty verdict in a felony trial.

A guilty verdict after a jury trial for a felony or a misdemeanor does not in and of itself mean that a Judge cannot withhold adjudication.   Both Florida Rule of Criminal Procedure, 3.670 and Florida Statute, 948.01 allow the Judge discretion to withhold adjudication. Only Florida Statute, 775.08435130 limits this discretion in certain felony cases.

Another myth closely related to the aforementioned myths regarding withholds is the false belief that a Judge cannot withhold adjudication of guilt when a person is sentenced to community control. Florida Statute, 948.01 does not actually say that a person sentenced to community control can receive a withhold of adjudication as it does specifically state for a person sentenced to probation.  But it does not say a person sentenced to community control cannot have adjudication withheld, either. The case law allows for a withhold of adjudication when a person is sentenced to community control. 131

“IGNORANCE OF THE LAW IS NEVER AN EXCUSE.”

 

Perhaps the most often used, overused, and annoying statement in the law is, “Ignorance of the law is no excuse.”132 But this doesn’t mean like some people mythically believe, that Ignorance of the law is never an excuse.  Ignorance of the law won’t excuse the trespasser who continues to trespass after a year, or the person who wrongfully shoots the trespasser. Nor will ignorance of the Lost and Found Law help the person who pawns the property he found on the beach. Ignorance of the law is usually not considered an excuse because the publication of state laws and statutes imputes constructive notice of those laws and the consequences of not following them to everyone.133

However, there are some laws where more notice than just hiding them somewhere in the endless pages of statutes we are all miraculously presumed to have memorized must be given.  For instance, registration laws punish a failure to act, i.e. a failure to register. And Due Process demands that before punishing people for failing to act they must first know what actions are required of them.  So if a person claims to have no knowledge that the law requires a duty to register in certain situations, then the person can claim ignorance of the law as a defense.134 However, the defense will most likely not be successful if the state can offer probable proof that the person who failed to register did have actual knowledge of the duty to register.135

The myth that ignorance of the law is never an excuse has been debunked. But for the most part ignorance of the law is still no excuse. The good news is that it is also no excuse for the police.136 The police cannot unlawfully search a locked glove compartment or trunk, or unlawfully stop a person for running a stop sign or red light, and then claim that ignorance of the law made the officers think those searches and stops were lawful.  Only good faith,137 can sometimes unfortunately save the police from their ignorance of the law. The Appellate court can sometimes save the trial judge from his or her ignorance of the law in thinking he or she has no discretion to withhold adjudication of guilt in certain cases.138 A 3.850 sometimes saves the defendant whose attorney’s ignorance of the law contributed to the Defendant’s conviction.139 But for the Defendant, when ignorance of the law is no excuse, only Mistake of Fact,140 Good Faith,141 and Claim of Right142 may sometimes save the defendant from his or her ignorance of the facts as they are applied to the law, but not the law itself.

 

CONCLUSION

All of the above listed myths in this article are based on some truth, and from now on ignorance of these myths and their basis in truth, is no longer an excuse.

 


1 Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948) (First time phrase, “Hot Pursuit” is referred to by the Supreme Court.)

2 Term used synonymously with “Hot Pursuit.” Interestingly, the case of Warden v. Hayden, 387 U.S. 294 (1967) that is most famous (at least in legal circles) for the terms “Hot Pursuit,” and “Fresh pursuit,” never mentions either term.

3 Florida Statue, 23.1225. Mutual aid agreements

4 Florida Statute, 316.1935  Fleeing or attempting to elude a law enforcement officer; aggravated fleeing or eluding

5 State v. McCune, 772 So.2d 596(Fla. 5th DCA 2000); Jackson v. State, 463 So.2d 372(Fla. 5th DCA 1985)

6 Florida Statute, 901.25, Fresh Pursuit; Arrest outside jurisdiction;

7 State v. Markiewicz, 5 FLW Supp. 43(Fla. 9th Jud. Cir. Ct. 1996); State v. Joy, 637 So. 2d 946 (Fla. 3rd DCA 1994); Elder v. DHSMV, 1 FLW Supp. 322(Fla. 9th Jud. Cir. Ct. 1993)

8 Porter v. State, 765 So.2d 76(Fla. 4th DCA 2000)

9  State v. Greer, 761 So.2d 343(Fla. 4th DCA 1999)

10 Daniel v. State, 20 So.3d 1008(Fla. 4th DCA 2009)

11 Florida Statute, 941.31 Fresh Pursuit; authority of officers of other states; etc.

12 Habeas Corpus relief would be available. Paley v. Bieluch, 785 So.2d 692(Fla. 4th DCA 2001)(Habeas Corpus relief denied for person held on Georgia charge in Florida, because he had pending Florida charges.); State v. Catalo, 7 FLW Supp 558(Fla. Brevard County Court, 2000)(Case explains time limits regarding how long a person can be held in custody in Florida on an out-of-state fugitive warrant.)

13 United States Code, Title 18, Part II, Chapter 209, Sec. 3182, Fugitives from State or Territory to State, District, or Territory

14 United States Code, Title 18, Part II, Chapter 209, Sec. 3182, Fugitives from State or Territory to State, District, or Territory.; Florida Statute, 941.15 Commitment to await requisition; bail. (30-day time limit for person arrested on Fugitive Warrant in Florida.) Florida Statute, 941.17 Extension of time of commitment, adjournment. (Additional 60- day time limit for person arrested on Fugitive Warrant in Florida.)

15 United States Code, Title 18, Part II, Chapter 209, Sec. 3182, Fugitives from State or Territory to State, District, or Territory

16 United States Code, Title 18, Part II, Chapter 209, Sec. 3181: Extradition (This annotation lists the countries the United States has an Extradition Treaty with.)

17 A list of countries with Mutual Legal Assistance Treaties with the United States as of 2007 can be found at this site: www.complianceweek.com/s/documents/MLAT.doc

18 Serrano v. State, 36 FLW S108(Fla. 2011)( Okay to kidnap Defendant from Ecuador to stand trial in Florida.)

19 The United States does not have an Extradition Treaty or a Mutual Legal Assistance Treaty with Cape Verde. Cape Verde looks to be the nicest country without the aforementioned treaties to visit.

20 Florida Statute, 775.15(1) Time limitations; general time limitations; exceptions.; State v. Calderon, 951 So.2d 1031(Fla. 3rd DCA 2007)

21 Ehlick v. State, 898 So.2d 237(Fla. 4th DCA 2005)

22 McLaughlin v. State, 15 So. 3d 872(Fla. 2nd DCA 2009); State v. Watkins, 685 So.2d 1322(Fla. 2nd DCA 1996)

23 King v. State, 687 So.2d 917 (Fla. 5th DCA 1997); State v. Picklesimer, 606 So.2d 473 (Fla. 4th DCA 1992)

24 King v. State, 687 So.2d 917 (Fla. 5th DCA 1997); State v. Picklesimer, 606 So.2d 473 (Fla. 4th DCA 1992)

25 State v. Mack, 637 So.2d 18(Fla. 4th DCA 1994)(Great case on what it takes to do a diligent search.); Cunnell v. State,  920 So.2d 810(Fla. 2nd DCA 2006)

26 King v. State, 687 So.2d 917 (Fla. 5th DCA 1997)(Diligent search is irrelevant if person is served during tolled period.); State v. Picklesimer, 606 So.2d 473 (Fla. 4th DCA 1992)(Explaining differences between sections 775.15(5)(Diligent search)  and 775.15(6) (three year tolling period.)

27 Lett v. State, 837 So.2d 614(Fla. 4th DCA 2003); State v. Shamy, 759 So.2d 728 (Fla. 4th DCA 2000); State v. Perez, 952 So.2d 611(Fla. 2nd DCA 2007)

28 Florida Statute, 775.15(4)(b)

29 Florida Statute, 775.15(5)

30 State v. Perez, 952 So.2d 611(Fla. 2nd DCA 2007)

31 State v. Perez, 952 So.2d 611(Fla. 2nd DCA 2007); Cunnell v. State,  920 So.2d 810(Fla. 2nd DCA 2006);

32 Florida Statute, 775.15(4)(a)

33 State v. Perez, 952 So.2d 611(Fla. 2nd DCA 2007)(Diligent search is still applicable to amended statute, and is found in this case, because the police knew where Perez was located out of state. But a question still arises from this case as well as King v. State, 687 So.2d 917 (Fla. 5th DCA 1997), and State v. Shamy, 759 So.2d 728 (Fla. 4th DCA 2000), as to whether a diligent search must be shown if the state can get the defendant to admit to being continuously out of the state during the statute of limitations period. For instance, if the person is out of the country during and beyond the statute of limitations period, and then upon his return to the states he is arrested for the first time on a capias, and is called by the state and admits to being continuously absent, then does it matter that the state never diligently searched for him, since presumably the time out of the country tolled the statute of limitations period, and the person was served within the tolled period? It does not seem that a defendant would have the right to take the Fifh in this situation unless the state was going to use the person’s admission of continuous absence as consciousness of guilt in the state’s case in chief. )

34 Florida Statute, 322.04(1)(c)-(d), persons exempt from obtaining driver’s license.; Florida Administrative Code, 15A-1.004 Reciprocity.; Florida Statute, 322.03(1) Drivers must be licensed; penalties.; Florida Statute, 322.01 Definitions, (17) Driver’s License.

35 Florida Statute, 322.04(1)(c)-(d), persons exempt from obtaining driver’s license.; Florida Administrative Code, 15A-1.004 Reciprocity.; Florida Statute, 322.03(1) Drivers must be licensed; penalties.; Florida Statute, 322.01 Definitions, (17) Driver’s License.

36 Carroll v. State, 761 So.2d 417 (Fla. 2nd DCA 2000)(Defendant can be convicted of driving while license suspended as an habitual traffic offender even though he was never issued a Florida drivers license, because his driving privilege was revoked.)

37 Florida statute, 322.031(1), Nonresident; when license required.; Florida Driver’s Handbook, Chapter 1-Your License,  Florida Classified Driver, Who Needs One?

38 Florida statute, 322.031(1)-(4), Nonresident; when license required.; Florida Driver’s Handbook, Chapter 1-Your License,  Florida Classified Driver, Who Does Not Need One?

39 William Shakespeare, Romeo and Juliet (II, ii, 1-2) Juliet:
”What’s in a name? That which we call a rose. By any other name would smell as sweet.”

40 Go to http://www.flhsmv.gov/ddl/idp.html, to learn everything you need to know, but were afraid to ask about IDP. ALSO SEE: United Nations Convention in International Road Traffic (1949 Geneva).

41Florida Statute, 322.04(1)(c)-(d), persons exempt from obtaining driver’s license.; Florida Administrative Code, 15A-1.004 Reciprocity.; Florida Statute, 322.03(1) Drivers must be licensed; penalties.; Florida Statute, 322.01 Definitions, (17) Driver’s License.

42 Florida Driver’s Handbook, Chapter 1-Your License, Florida Classified Driver, Who Needs One? This section also incorrectly includes in the definition of resident as anyone who enrolls their children in public school or accepts employment in the state of Florida.

43 At lease none that I could find.

44 Some of the topics touched upon in this course are: 1. Do not have a trafficking amount of drugs in the car you are driving or are a passenger in.  (Know the Trafficking laws.) 2. Make sure that whoever is driving the motor vehicle has a valid driver’s License. 3. Make sure that whoever the car is registered to has a valid driver’s license. 4. Make sure the License plate and Registration are valid, and that the tag is registered to the car it is attached to. 5. Make sure that all the exterior lights work, and that there are no other mechanical problems with the car. 6. OBEY ALL TRAFFIC LAWS!! 7. If you are stopped, and the police ask to search your car, SAY NO! (Especially if you have forgotten to follow rule #1) 8. If more than one person is in the car everyone must agree if stopped, to answer if asked, “who does this belong to?” “NOT ME!!” Repeat after me, “NOT ME!!!” 9. If one person is in the car, still follow Rule Numbers, 7 and 8-10. 10. ALWAYS REMEMER TO: OBEY ALL TRAFFIC LAWS AND KNOW ALL THE TRAFFICKING LAWS!!

45 Cooper v. State, 654 So.2d 229(Fla. 1st DCA 1995); Rouse v. State, 643 So.2d 696(Fla. 1st DCA 1994); Dunbar v. State, 592 So.2d 1230(Fla. 5th DCA 1992); Monroe v. State, 578 So.2d 847(Fla. 2nd DCA 1991)

46 Seuss v. State, 370 So.2d 1203(Fla. 1st DCA 1979); Powell v. State, 332 So.2d 105(Fla. 1st DCA 1976)

47 Summerall v. State, 777 So.2d 1060(Fla. 2nd DCA 2001)

48 State v. Kindle, 782 So.2d 971(Fla. 5th DCA 2001)

49 McNichols v. State, 899 So.2d 1197(Fla. 5th DCA 2005); Alvar v. State, 745 So.2d 891(Fla. 2nd DCA 2000)

50 Parker v. State, 641 So.2d 483(Fla. 5th DCA 1994)

51 Rita v. State, 470 So.2d 80(Fla. 1st DCA 1985); A.S. v. State, 460 So.2d 564 (Fla. 3rd DCA 1984)

52 State v. Bertram, 14 FLW Supp. 677(Fla. Palm Beach County Court, 2007)

53 Fedor v. State, 483 So.2d 42(Fla. 2nd DCA 1986); BUT SEE: Martoral v. State, 946 So.2d 1240, 1242 (Fla. 4th DCA 2007); Cruz v. State, 744 So.2d 568(Fla. 2nd DCA1999); D.J. v. State, 330 So.2d 35(Fla. 4th DCA 1976)

54 Taylor v. State, 13 So.2d 77(Fla. 1st DCA 2009); BUT SEE: Rita v. State, 470 So.2d 80(Fla. 1st DCA 1985); Metzger v. State, 395 So.2d 1259(Fla. 3rd DCA 1981), Hively v. State, 336 So. 2d 127 (Fla. 4th DCA 1976)

55 Lewis v. State, 570 So.2d 346 (Fla. 2nd DCA 1990)(Superseded by statute as to knowledge of illicit nature of drug.)

56 State v. Cole, 15 FLW Supp. 930(Fla. Hillsborough County Court, 2008)(Writing about impossibility of getting passed JOA when there is more than one person in the car.); Owner-driver cases where JOA was granted: Gizaw v. State, 36 FLW D1266(Fla. 2nd DCA 2011); K.A.K. v. State, 885 So.2d 405(Fla. 2nd DCA 2004); Downard v. State, 793 So.2d 83(Fla. 2nd DCA 2001)(Superseded by statute as to knowledge of illicit nature of drug.); Daniels v. State, 777 So.2d 1113(Fla. 4th DCA 2001); In Interest of E.H., 579 So.2d 364 (Fla. 4th DCA 1991); Manning v. State, 355 So.2d 166(Fla. 4th DCA 1978); Non-owner-driver cases where JOA was granted: Brown v. State, 8 So.3d 1187(Fla. 4th DCA 2009); Culver v. State, 990 So.2d 1206(Fla. 2nd DCA 2008); Cruz v. State, 744 So.2d 568(Fla. 2nd DCA 1999); Hargrove v. State, 928 So.2d 1254(Fla. 2nd DCA 2006); Hill v.State, 736 So.2d 133(Fla. 1st DCA 1999); Green v. State, 586 So.2d 86(Fla. 2nd DCA 1991); Pressley v. State, 712 So.2d 1240(Fla. 4th DCA 1998); Faggionato v. State, 329 So.2d 31 (Fla. 2nd DCA 1976); Thomas v. State, 297 So.2d 850(Fla. 4th DCA 1974)

57Owner-passenger case: Lewis v. State, 570 So.2d 346 (Fla. 2nd DCA 1990)(Superseded by statute as to knowledge of illicit nature of drug.); Non-owner-passenger cases where JOA was granted: J.A.C. v. State, 816 So.2d 1228 (Fla. 5th DCA 2002); C.M. v. State,  818 So.2d 554(Fla. 2nd DCA 2002); Earle v. State, 745 So.2d 1087(Fla. 4th DCA 1999); E.A.M. v. State, 684 So.2d 283(Fla. 2nd DCA 1996); T.W. v. State, 666 So.2d 1001(Fla. 5th DCA 1995); Skelton v. State, 609 So.2d 716(Fla. 2nd DCA 1992); Cordero v. State, 589 So.2d 407(Fla. 5th DCA 1991); Mishmash v. State, 423 So.2d 446 (Fla. 1st DCA 1982); Harris v. State, 307 So.2d 218 (Fla. 3rd DCA 1974)

58 Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 58 L.Ed2d 387(1978)

59 Parker v. State, 641 So.2d 483(Fla. 5th DCA 1994)

60 State v. Bertram, 14 FLW Supp. 677(Fla. Palm Beach County Court, 2007); And after Shelton v. Secretary, Department of Corrections, et.al., Case No.:6:07-cv-839-Orl-35-KRS(United States District Court, Middle District of Florida, Orlando Division, 2011), the question is left open as to whether the state will once again have to prove that the Defendant had knowledge of the illicit nature of the controlled substance, or if since Chapter 893 has been deemed unconstitutional whether or not these types of cases will be dismissed.  BUT SEE: Williams v. State, 45 So.3d 14(Fla. 1st DCA 2010)

61 Parker v. State, 641 So.2d 483(Fla. 5th DCA 1994)(Defendant did not act surprised enough.)

62 J.A.C. v. State, 816 So.2d 1228 (Fla. 5th DCA 2002); C.M. v. State,  818 So.2d 554(Fla. 2nd DCA 2002); Earle v. State, 745 So.2d 1087(Fla. 4th DCA 1999); E.A.M. v. State, 684 So.2d 283(Fla. 2nd DCA 1996); T.W. v. State, 666 So.2d 1001(Fla. 5th DCA 1995); Skelton v. State, 609 So.2d 716(Fla. 2nd DCA 1992); Cordero v. State, 589 So.2d 407(Fla. 5th DCA 1991); Mishmash v. State, 423 So.2d 446 (Fla. 1st DCA 1982); Harris v. State, 307 So.2d 218 (Fla. 3rd DCA 1974)

63 No probable cause to arrest passenger: Zandate v. State, 779 So.2d 476(Fla. 2nd DCA 2000); State v. Walker, 741 So.2d 1144(Fla. 4th DCA 1999); Rennard v. State, 675 So.2d 1006(Fla. 2nd DCA 1996); Cady v. State,  817 So.2d 948(Fla. 2nd DCA 2002); Rogers v. State, 586 So.2d 1148(Fla. 2nd DCA 1991)

64 Perry v. State, 916 So.2d 835(Fla. 2nd DCA 2005)

65 State v. Green, 943 So.2d 1004(Fla. 2nd DCA 2006)

66 Fifty Ways To Leave Your Lover, by Paul Simon

67 Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991); State v. Smith, 632 So.2d 1086(Fla. 5th DCA 1994)

68 Moreland v. State, 552 So.2d 937 (Fla. 2nd DCA 1989); State v. Bennett, 481 So.2d 971(Fla. 5th DCA 1986)

69 State v. Abrams, 548 So.2d 820(Fla. 2nd DCA 1989)

70 Wallace v. State, 557 So.2d 212(Fla. 2nd DCA 1990); Jacobs v. State, 733 So.2d 552(Fla. 2nd DCA 1999)

71 Rodriguez v. State, 539 So.2d 513 (Fla. 2d DCA 1989); Oliver v. State, 642 So.2d 840(Fla. 4th DCA 1994)

72 J.J. V. v. State, 17 So. 3d 881(Fla. 4th DCA 2009); Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990)

73 State v. Petion, 992 So.2d 889(Fla. 2nd DCA 2008)

74 State v. Williams, 739 So.2d 717(Fla. 5th DCA 1999); Ramirez v. State, 625 So.2d 119(Fla. 5th DCA 1993); Jones v. State, 592 So.2d 363(Fla. 5th DCA 1992)

75 State v. K.S., 28 So. 3d 985(Fla. 2nd DCA 2010); State v. Gonzalez, 507 So.2d 772(Fla. 3rd DCA 1987)

76 State v. K.S., 28 So. 3d 985(Fla. 2nd DCA 2010)

77 Kilburn v. State, 54 So.3d 625 (Fla. 1st DCA 2011); Leary v. State, 880 So.2d 776(Fla. 5th DCA 2004)

78 Kilburn v. State, 54 So.3d 625 (Fla. 1st DCA 2011); Leary v. State, 880 So.2d 776(Fla. 5th DCA 2004

79 The French Connection (1971), Starring Gene Hackman. (After the entire car is ransacked, and no drugs are found, another search reveals drugs located underneath car’s rocker panels.)http://www.movieweb.com/movie/the-french-connection/HUIRdQJOJghTMQ); State v. Williams, 739 So.2d 717(Fla. 5th DCA 1999); Ramirez v. State, 625 So.2d 119(Fla. 5th DCA 1993); Jones v. State, 592 So.2d 363(Fla. 5th DCA 1992)

80 Dexter v. State, 596 So.2d 88(Fla. 2nd DCA 1982)

81 Bond v. State, 431 So.2d 343(Fla. 2nd DCA 1983)

82 State v. Townsend, 40 So. 3d 103(Fla. 2nd DCA 2010)

83 State v. Bennett, 481 So.2d 971(Fla. 5th DCA 1986); Rodriguez v. State, 539 So.2d 513 (Fla. 2d DCA 1989)

84 Oliver v. State, 642 So.2d 840(Fla. 4th DCA 1994)

85 Florida v. Wells, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990)

86 State v. Betz, 815 So.2d 627 (Fla. 2002); State v. Scott, 576 So.2d 411(Fla. 3rd DCA 1991); State v. Jarrett, 530 So. 2d 1089 (Fla. 5th DCA 1988)

87 Hawley v. State, 913 So.2d 98(Fla. 5th DCA 2005); Leary v. State, 880 So.2d 776(Fla. 5th DCA 2004)

88 State v. Townsend, 40 So. 3d 103(Fla. 2nd DCA 2010)

89 Leary v. State, 880 So.2d 776(Fla. 5th DCA 2004)

90 Leary v. State, 880 So.2d 776(Fla. 5th DCA 2004)

91 State v. Green, 943 So.2d 1004(Fla. 2nd DCA 2006)

92 State v. Williams, 739 So.2d 717(Fla. 5th DCA 1999)

93 State v. Starkey, 559 So. 2d 335(Fla. 1st DCA 1990)

94 Article I Section 12 of the Florida Constitution

95 State v. Green, 943 So.2d 1004(Fla. 2nd DCA 2006)

96 Florida Statute, 893.13(2)(a)(7)

97 State v. Walker, 461 So.2d 108(Fla. 1984)

98 Rodriguez v. State, 36 FLW D1462(Fla. 3rd DCA 2011)

99 Florida Statute, 499.007 Misbranded drug or device

100 Florida Statute, 499.005 Prohibited acts

101 Florida Statute, 499.0051 Criminal acts

102 Florida Statute, 316.123(2)(a), Vehicle entering stop or yield intersection; State v. Robinson, 756 So.2d 249 (Fla. 5th DCA 2000); BUT SEE: State v. Lebron, 16 FLW Supp. 94(Fla. Volusia County Court, 2008)

103 Florida Statute, 316.123(2)(a), Vehicle entering stop or yield intersection; State v. Robinson, 756 So.2d 249 (Fla. 5th DCA 2000); BUT SEE: State v. Lebron, 16 FLW Supp. 94(Fla. Volusia County Court, 2008)

104 Florida Statute, 316.123(2)(a), Vehicle entering stop or yield intersection; State v. Robinson, 756 So.2d 249 (Fla. 5th DCA 2000); BUT SEE: State v. Lebron, 16 FLW Supp. 94(Fla. Volusia County Court, 2008)

105 Florida Statute, 316.075 Traffic control signal devices.; Catlett v. State, 17 FLW Supp. 1168(Fla. Circ. Ct. 7th Jud. Cir. 2010)

106 State v. Lebron, 16 FLW Supp. 94(Fla. Volusia County Court, 2008)

107 Alabama, Statute, Section 32-5A-245 Headgear and shoes required for motorcycle riders; approval of headgear; responsibility for juvenile riders; sale of helmets; Poach Band of Creek Indians Tribal Code, §13a-1-35 Headgear and shoes required for motorcycle riders and responsibility for juvenile riders

108 Florida Statute, 316.2397, Certain lights prohibited; exceptions; Guanciale v. State, 14 FLW Sup. 333(Fla. Cir. Ct. 6th Judicial Circuit, 2007)(Red light seen from front of vehicle)

109 Florida Statute, 812.019 Dealing in stolen property

110 Florida Statute, 812.022 Evidence of theft or dealing in stolen property; Wilkins v. State, 18 So.3d 8(Fla. 4th DCA 2009); Walker v. State, 896 So.2d 712(Fla. 2005); Wilson v. State, 884 So.2d 74(Fla. 2nd DCA 2004); Haugabrook v. State, 827 So.2d 1065(Fla. 2nd DCA 2002); Youngs v. State, 736 So.2d 85(Fla. 4th DCA 1999)

111 Wilkins v. State, 18 So.3d 8(Fla. 4th DCA 2009); Walker v. State, 896 So.2d 712(Fla. 2005); Wilson v. State, 884 So.2d 74(Fla. 2nd DCA 2004); Haugabrook v. State, 827 So.2d 1065(Fla. 2nd DCA 2002); Youngs v. State, 736 So.2d 85(Fla. 4th DCA 1999)

112 Florida Statute, 538.04 Recordkeeping requirements; penalties.

113 Bertone v. State, 870 So.2d 923(Fla. 4th DCA 2004)(A reasonable explanation case)

114 Florida Statute, 705.101(2) Definitions

115 Florida Statute, 705.102(1) Reporting lost or abandoned property; State v. Tarbox, 541 So.2d 1350(Fla. 3rd DCA 1989)

116 Florida Statute, 705.104(1) Title to lost or abandoned property

117 Florida Statute, 705.102(4) Reporting lost or abandoned property; State v. Dawson, 681 So.2d 1206(Fla. 3rd DCA 1996)(Refers to the old saying, “Finders Keepers, Losers Weepers.”

118 “Neither a borrower nor a lender be.”-Polonius in Act I, Scene 3 of William Shakespeare’s Hamlet

119 Dukes v. State, 796 So.2d 1265 (Fla.4TH DCA  2001); Small v. State, 710 So.2d 591(Fla. 4th DCA 1998); Chambers v. State, 700 So.2d 441 (Fla. 4th DCA 1997); State v. Hamilton, 660 So.2d 1038 (Fla.1995)

120 In Interest of B.P., 610 So.2d 625 (Fla. 1st DCA 1992)

121 In Interest of B.P., 610 So.2d 625 (Fla. 1st DCA 1992)

122 In Interest of B.P., 610 So.2d 625 (Fla. 1st DCA 1992)

123 State v. Moralssantos, 17 Fla. L. Weekly Supp. 999(Fla. 17th Jud. Cir. Cr. 2010)(Post-July 1st, 2009, Florida statute, 948.01(2) was amended to make probation discretionary as opposed to mandatory when withholding adjudication in non-felony cases.)

124 Florida rules of criminal procedure, 3.670. Rendition of Judgment. (The rule states that after a jury or a non-jury trial a non-felony offender who is found guilty can only receive a withhold of adjudication if the offender is placed on probation.) BUT SEE: Florida Statute, 948.01(2) which states that after a jury or non-jury trial a non-felony offender who is found guilty can receive a withhold of adjudication without being sentenced to probation.

125 Benyard v. Wainwright, 322 So. 2d 473 (Fla. 1975)

126 Benyard v. Wainwright, 322 So. 2d 473 (Fla. 1975)

127 Florida Statute, 948.01(2)

128 Florida Statute, 948.01

129 Stephens v. State, 14 So.3d 254(Fla. 4th DCA 2009); Vicaria v. State, 743 So.3d 644(Fla. 1st DCA 1999); Switzer v. State, 940 So.2d 1248(Fla. 1st DCA 2006); State v. Scarantino, 543 So.2d 399(Fla. 4th DCA 1989); State v. Butler, 719 So.2d 344(Fla. 4th DCA 1998); State v. Green, 581 So.2d 1008(Fla. 4th DCA 1991); Lewis v. State, 298 So.2d 540(Fla. 4th DCA 1974)

130 775.08435 Prohibition on withholding adjudication in felony cases.—

131 State v. Scriber, 991 So.2d 969(Fla. 4th DCA 2008); State v. Robertson, 614 So.2d 1155(Fla. 4th DCA 1993)

132 Shelvin-Carpenter Co. v. Minnesota, 218 U.S. 57(US. Sct. 1910) (This cases says: …ignorance of law will not excuse.

133 State v. Floyd, 707 So.2d 833(Fla. 1st DCA 1998)

134 State v. Giorgetti, 868 So. 2d 512(Fla. 2004); U.S. v. Mancuso, 420 F.2d 556 (United States Court of Appeals, Second Circuit, 1970); Lambert v. People of the State of California, 355 U.S. 937, 78 S.Ct. 240, 2 L.Ed.2d 228 (U.S. S.Ct. 1958)

135 U.S. v. Mancuso, 420 F.2d 556 (United States Court of Appeals, Second Circuit, 1970)

136 Hilton v. State, 961 So.2d 284(Fla. 2007)

137 State v. Harris, 50 So.3d 408(Fla. 1st DCA 2011); Zaccardo vs. State, 723 So.2d 362 (5th DCA 1998); State v. Smith, 584 So.2d 145(Fla. 2nd DCA 1991)

138 Vicaria v. State, 743 So.2d 644(Fla. 1st DCA 1999)

139 Owens v. State, 866 So.2d 129(Fla. 5th DCA 2004)

140 Bedoya v. State, 634 So.2d 203(Fla. 3rd DCA 1994); In Interest of B.P., 610 So.2d 625 (Fla. 1st DCA 1992)

141 Chalmers v. State, 789 So.2d 1057(Fla. 4th DCA 2001)

142 T.D.W. v. State, 42 So.3d 959(Fla. 4th DCA 2010); Owens v. State, 866 So.2d 129 (Fla. 5th DCA 2004); Chalmers v. State, 789 So.2d 1057(Fla. 4th DCA 2001); Bartlett v. State, 765 So.2d 799(Fla. 1st DCA 2000)

 

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