Florida Federal Criminal Defense Attorney focusing on the defense of white collar crimes.

Juvenile Court Proceedings

Whether in juvenile, family or probate court, the juvenile is entitled to:

- The right to be represented by counsel.
- The right to present witnesses on the juvenile's behalf.
- The right to subpoena, confront, and cross-examine witnesses.
- The right to a public hearing.
- The right to present evidence.
- The right to appeal.

If the juvenile could face prison time if adjudicated delinquent of the offense charged, he may be entitled to the appointment of counsel if he is indigent. Juvenile court proceedings are usually sealed. The records are confidential and are not accessible to the general public. Some states do not automatically seal juvenile records. In that instance, the juvenile may have to request for his records to be sealed.

The juvenile does not have a right to a jury trial. However, if the juvenile is adjudicated delinquent, jeopardy has attached and the juvenile may be tried again for the same offense.

Status Offenses

A status offense is an offense that is only illegal for a juvenile and not for an adult. Examples of status offenses include:

- Truancy (failure to attend school).
- Running away.
- Incorrigible behavior.
- Underage drinking.
- Curfew violations.

Juvenile proceedings differ from regular court proceedings in that when the court finds that the evidence supported the contention that the juvenile committed an offense, he is typically adjudicated or found delinquent. They are not found "guilty" as in the adult criminal system. The prosecutor must prove that the juvenile committed the offense as charged beyond a reasonable doubt. The same standard applies in adult court.

The juvenile may be tried as an adult if he commits one or more white collar crimes and is closer to the age of 18. Whether the juvenile will be charged as an adult differs greatly from state to state. Juveniles commit all of the offenses that adults commit, including but not limited to, murder, rape, theft offenses, assault, weapons offenses, and drug use and sales. In the past years, more male juveniles are arrested for crimes than females.

Typical Sentences

Depending upon the offense, the juvenile may be assigned to community service, may be placed on probation or in a detention facility. Probation is a common sentence, especially for a non-serious offense or a first-time offender of a non-serious or non-violent offense. The juvenile, as is an adult, will be required to meet with his probation officer as required. Further, probation for a juvenile may be revoked if violated, just as with an adult. The judge or magistrate has a lot of discretion in determining the juvenile's sentence. Under the Juvenile Justice and Delinquency Prevention Act, status offenders or offenders of non-serious or non-violent offenses may not be placed in secure facilities.

Copyright 2005 LexisNexis, a division of Reed Elsevier Inc.

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The Fourth Amendment of the United States Constitution guarantees the right to be secure against unreasonable searches and seizures. It provides that warrants for an arrest or for a search shall be based on probable cause, shall be supported by an oath or an affirmation, and shall describe with particularity the place to be searched or the person or thing to be seized.

An arrest occurs when a person is placed under restraint or is taken into custody by a police officer. A person is placed under restraint when his or her freedom of movement is restricted by physical force or by a show of authority. Physical force occurs with the slightest touching or application of physical force. A show of authority occurs when a police officer's words and actions operate as a command. If a person is free to leave or believes that he or she is free to leave, an arrest has not occurred. Mere questioning by a police officer does not constitute an arrest.

An arrest warrant is a written order from a magistrate or other judicial officer to a police officer commanding the seizure of a person. The magistrate or the other judicial officer must be neutral and detached, that is, not involved in the arrest. Prior to issuing the arrest warrant, the magistrate or the other judicial officer must determine whether there is probable cause for an arrest. Probable cause for an arrest warrant requires a showing that a person has committed a crime or is in the process of committing a crime. The arrest warrant may be based upon a sworn affidavit or upon a complaint. The affidavit or the complaint must provide a sufficient basis for an independent determination of probable cause by the magistrate or the other judicial officer.

The arrest warrant must contain the following:

- The specific name of the person or a reasonable description of the person to be arrested.
- The name of the offense of which the person is accused.
- The signature of the magistrate or the judicial officer issuing the warrant.
- The name of the magistrate's office or the judicial officer's office.

When a police officer is authorized under an arrest warrant to enter a private dwelling, the officer must comply with the "knock and announce" rule. The officer must announce his or her authority and purpose before entering the private dwelling. The officer may force his or her way into the private dwelling only if he or she is denied entry. However, there are exceptions to the "knock and announce" rule.

An arrest warrant may be issued along with a search warrant. The police may not exceed the scope of the arrest warrant or the search warrant. If the police exceed the scope of the search warrant, the seized evidence may be suppressed and may not be able to be used at trial.

An accused may attack his or her arrest under an arrest warrant by claiming that the arrest warrant was invalid. If the arrest warrant is valid on its face, that is, if it contains the requirements set forth above, the accused must show that the affidavit or the complaint on which the arrest warrant was based lacked a showing of probable cause and that the arrest warrant was not based on probable cause.

Copyright 2005 LexisNexis, a division of Reed Elsevier Inc.

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If you are offered any inducement to sign a document or if you are threatened, coerced, or forced to sign anything, advise your attorney immediately and the senior police official in charge. If you do not have an attorney, you may ask to see one immediately.

If you are unable to afford an attorney, you have a right to be put in touch with the Public Defender immediately. The Public Defender is a lawyer and is available to give you important legal advice following your arrest. If you are in doubt about whether you should talk with the arresting officer or other law enforcement officers, you should wait until you have spoken with an attorney before giving up your right to remain silent.

WHEN ARE YOU UNDER ARREST?

You are arrested when law enforcement officers take you into custody or otherwise deprive you of your freedom of movement in any significant way, in order to hold you to answer for a criminal offense.

Police officers, under Florida law, are obligated to identify themselves and to advise you that you are under arrest and why, unless circumstances make it impossible for them to do so at that time.

You may, in fact, be under arrest even though no one has actually used the word "arrest" or any other comparable word. The fact that you have been deprived of your freedom of movement in some significant manner may amount legally to an arrest.

Ordinarily, private citizens do not have power of arrest in Florida; but under limited circumstances a private party may make an arrest where an actual commission of a felony is involved.

CAN A LAW ENFORCEMENT OFFICER DETAIN YOU WITHOUT ARRESTING YOU?

Based upon reasonable suspicion that you may be involved in criminal activity, a police officer may require you to identify yourself and explain your presence at a particular time, without arresting you. Under Florida law the officer may not remove you from the immediate vicinity without making an arrest, unless you voluntarily accompany the officer to some other location.

If the officer has reasonable grounds to believe that you are armed, he or she may conduct a limited pat-down of your outer garments for the purpose of detecting weapons. If this "frisk" results in reasonable belief on the part of the officer that you are carrying a weapon, the officer may remove the suspicious object for protection. The officers must return to you any unlawful object found unless they places you under arrest. Unless the officer places you under arrest, the frisk or search must be limited to suspected weapons.

The officer may ask you some questions in order to complete the field interrogation card. You have a constitutional right to not answer them, or give your name, unless the officer has an articulable suspicion that you are involved in a crime.

At the conclusion of this temporary detention the officer must either arrest you or let you go.

If you should enter a retail establishment where goods are placed on display and for sale, the merchant or the employees may detain you on the premises for a reasonable time for questioning if they have probable cause to believe that you have stolen or have attempted to steal goods for sale. Under such circumstances a police officer called to the scene may make an arrest for shoplifting even though the alleged offense was not committed in the officer's presence.

WHEN ARE YOU ARRESTED WITH A WARRANT?

A police officer may arrest you at any time if he or she has a warrant for your arrest, or if the officer knows that a warrant for your arrest has been issued.

A warrant is an order issued by a court charging that you committed a particular crime and directing the sheriff and all police officers of the state to arrest you and bring you before the court. You may require the officer to read the warrant after you have been arrested.

An arrest warrant should not be confused with a search warrant.

WHEN ARE YOU ARRESTED WITHOUT A WARRANT?

In Florida, a police officer may make an arrest without a warrant under a variety of circumstances. Among those circumstances are:

1) when the officer knows that a warrant for your arrest has been issued and is still in effect even though the warrant may be held by another police officer;
2) when the arresting officer has good reason to believe that a felony has been or is being committed and that you are the person who has committed or is committing the felony.
A felony is a crime which is punishable by death or by imprisonment in the state penitentiary for a term of years. Examples of felonies include the more serious crimes such as murder, sexual battery, robbery, burglary, sale of narcotics, as well as grand larceny, keeping a gambling house and many others;
3) when a misdemeanor is committed in the presence of the officer.

Under Florida law, there are a few specified misdemeanors for which an arrest may be made without a warrant, even when not committed in the presence of the arresting officer. These exceptions to the general rule are shoplifting, carrying a concealed weapon other than a firearm, possession of not more than twenty grams of marijuana and a few others.

CAN AN OFFICER USE FORCE WHEN MAKING AN ARREST?

The officer may employ all reasonable and necessary force to overcome resistance in making a lawful arrest. The legality of the arrest has nothing to do with whether or not you are ultimately convicted. As long as the officer has reasonable grounds for making the arrest at the time for the arrest, you cannot claim later that the arrest was unlawful merely because you were found not guilty.

Resisting arrest with violence is a felony under Florida law. Resisting arrest without violence or offering to do violence is a misdemeanor. You could be convicted of either of these crimes, even if you were found not guilty of the crime for which you were arrested.

Obstructing an officer with violence is also a felony under Florida law. Obstructing or interfering with an officer on duty without violence is a misdemeanor.

If you believe that your rights are being violated, make it a point to remember exactly what the police officer did and then advise your attorney concerning this at the earliest possible time.

WHEN ARE YOU SEARCHED?

While the law of search and seizure is very complex, and often will depend on the facts and circumstances in a particular case, you should not resist a search with force; however, neither should you consent to an improper search. If you do object to a particular search, advise the officer who is conducting it that you do not consent, that you do object to the search and ask the officer to identify himself or herself.

In most cases involving search and seizure issues, "reasonableness" of the search is the legal test without a search warrant. If police officers arrive at your premises armed with a search warrant, they may search only that area or portion authorized in the warrant itself. You are entitled to have a copy of the search warrant left with you and served on you if you are present.

If you are arrested in your home, the officers may conduct a limited search of the immediate area where you are arrested without a search warrant. They also may check the rest of the house for any hidden accomplices. They may seize any contraband, stolen property, instrumentalities or evidence of a crime that they discover in plain view in any portion of the house where the officers have a right to be.

Your automobile may also be impounded and inventoried if there is no qualified licensed driver or towing agent to take charge of it. If an officer is about to impound your car, tell the officer if you have a relative or friend who will come and get it, or that you have a preference of your own station, to tow your car.

WHAT PROCEDURES ARE USUALLY FOLLOWED WHEN YOU ARE ARRESTED?

1) The officer will take you to a police station.
2) You will be advised generally as to the charges against you. However, these charges may be changed later and stated in more detail by the office of the prosecuting attorney or in some instances by the grand jury.
3) You may be required to participate in a lineup, to prepare a sample of your penmanship, or to speak phrases associated with the crime with which you are charged, to put on certain wearing apparel or to give a sample of your hair. You should ask to have your attorney present during any of these procedures. You have an absolute right to counsel, if you are asked to participate in a lineup after you have been formally charged by the prosecuting attorney or indicted by a grand jury.
4) You also may be required to be fingerprinted and photographed.
5) You will be arraigned at a court session or your attorney will file a written plea on your behalf. An arraignment is no more than a plea of guilty, not guilty or no contest to the charge. If you plead not guilty, a trial date will be set. If you plead guilty or no contest, a sentencing date will be set, generally after the court has received a pre-sentence investigation report from probation and parole.

WHAT HAPPENS TO PERSONAL PROPERTY WHEN ARRESTED?

If you should be booked into a jail, the police may take money and property from you for safekeeping. They will carefully inventory your money and property and give you a copy of the inventory.

At the time of your release or at the conclusion of your case, such money or property that was not seized as evidence in the case will be returned to you. You will be given an opportunity to sign the property list. You should make certain that the list includes all the items taken from you.

WHAT ARE YOUR RIGHTS AFTER YOUR ARREST?

You have a right to know the crime or crimes with which you have been charged.

You have a right to know the identity of the police officers who are dealing with you. This is your right to statute and by custom.

You have the right to communicate by telephone with your attorney, family, friends, or bondsperson as soon after you are brought into the police station as practicable. The police have a right to complete their booking procedures before you are allowed to use the telephone.

You have the right to be represented by counsel at all critical stages of your case. If you cannot afford an attorney, the court will appoint an attorney to represent you free of charge, if you qualify under existing criteria as an insolvent person. This right pertains to any offense, however, trivial, for which any imprisonment whatsoever might result.

Constitutional rights may be waived or given up voluntarily. Before you say or sign anything that might result in waiver of a constitutional right, weigh your decision carefully.

WHAT RIGHTS DO YOU HAVE WHEN QUESTIONED BY THE POLICE?

1) You have the right to remain silent.
2) If you choose to speak, anything you say can be used against you in court.
3) If you decide to answer any questions, you may stop at any time and all questioning will cease.
4) You have a right to consult with your attorney before answering any questions. You have the right to have your attorney present if you decide to answer any questions, and if you cannot afford an attorney, one will be provided for you or appointed for you by the court without cost to you before any further questions may be asked.

HOW DO YOU ARRANGE FOR A LAWYER?

If you don't know a lawyer in the area where you are arrested and have no lawyer in your home town whom you would call, you may contact The Florida Bar statewide Lawyer Referral Service at (800) 342-8011 or your county or city bar association for the name of an attorney on the local referral list. Any attorney you contact will be happy to discuss fees with you and give you some idea of the cost involved.

If you cannot afford a private lawyer, you should advise the judge of this fact at your first appearance or as soon after that as possible. The judge will ask you some questions to see if you are eligible for the services of an attorney at public expense. You will probably be asked to take an oath of indigence, which is a sworn statement as to your inability to afford a private attorney.

HOW ARE YOU RELEASED?

You may be released upon personal recognizance (your promise to appear in court when directed), or you may be released on bail, which involves the posting of either cash money or a surety bond as security for your court appearance. Bail bonds from licensed sureties are usually available at a cost of 10 percent of the amount of the bail.

If you are taken into custody and booked into the jail and remain there, you must be brought before a magistrate within 24 hours of your arrest. At that appearance, you may request that the magistrate lower your bail in consideration of your ties in the community, financial resources, employment record or any other factors, including your past criminal record and your past history of failure to appear in court when scheduled.

Upon arrival at the jail or shortly thereafter, you will be given an opportunity to contact your attorney. The attorney, in turn, may arrange for the posting of a bond and may appear with you in court and ask the court to lower the bail if it is believed to be excessive under the circumstances.

Revised 9/97

Delivery of a controlled substance requires both an intent to deliver the controlled substance and a knowledge that the substance was a controlled substance.

A person also commits a criminal offense when he or she delivers a simulated controlled substance and represents that the simulated controlled substance is a controlled substance. A simulated controlled substance has different chemical properties from a controlled substance. Other chemicals may be added to the controlled substance.

An indictment or an information charging a defendant with delivery of a controlled substance must allege the elements of the offense, which elements include intent and a knowing delivery of the controlled substance. The amount of the controlled substance does not need to be alleged unless the prosecution wants to charge the defendant with more than the minimum punishment for delivery of a controlled substance. The indictment or the information must state the type of delivery that is alleged, that is, whether the delivery is actual, constructive, or an offer to sell. The indictment or the information does not need to allege the manner in which the delivery was carried out.

Where an indictment or an information charges a defendant with delivery of marihuana, the indictment or the information must specify the amount of marihuana that was delivered and whether there was payment. The reason for this allegation is that whether the offense is a misdemeanor or a felony depends upon the amount that was delivered or transferred.

In order to convict a defendant of delivery of a controlled substance, the prosecution must prove that the defendant had contact with the controlled substance. This element is normally proved by an undercover law enforcement officer. In the event that the delivery was not made to the undercover law enforcement officer, the prosecution must prove that the defendant was not merely present when the controlled substance was discovered. Although the amount of the controlled substance is a factor for showing intent to deliver, the amount is not conclusive of the intent to deliver. The prosecution must also prove that the defendant knew that he or she was delivering the controlled substance. This element is normally proved by the defendant's representation that the substance was a controlled substance and by the fact that the representation was accurate.

In order to convict a defendant of delivery of a controlled substance, the prosecution must also prove that the defendant completed a transfer of the controlled substance to another person. A completed transfer may occur even if the other person does not take possession of the controlled substance until after the defendant's arrest. The prosecution must also prove whether the delivery was actual, constructive, or an offer to sell. When the defendant is charged with actual delivery, the prosecution must prove that the defendant transferred possession and control of the substance to another person. When the defendant is charged with constructive delivery, the prosecution must prove that the defendant transferred the controlled substance to another person by some other person or by some means other than actual delivery. The defendant's mere presence at a location where the transfer is made does not constitute constructive delivery. The prosecution must prove that the defendant had control over the substance that was transferred and knew that the substance would be transferred to the other person. When the defendant is charged with an offer to sell, the prosecution must produce corroborative evidence of the offer by someone other than the person to whom the offer was made.

The punishment for the delivery, distribution, or sale of a controlled substance depends upon the amount of the controlled substance and the statutory group in which the controlled substance is found. The amount of the controlled substance includes any adulterants or dilutants that are contained in the controlled substance. Adulterants and dilutants are materials that increase the bulk or the quantity of the controlled substance. The punishment also depends upon whether the controlled substance was delivered to a minor or whether it was delivered in a drug free zone such as a school or a playground.

Copyright 2005 LexisNexis, a division of Reed Elsevier Inc.

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A person entering the United States at a border may be stopped and searched. Border police and customs agents have a right to determine whether the person is entitled to legally enter the United States, whether the person is responsible for customs duties, or whether the person's property may be brought into the country and is not contraband or other prohibited materials. Border searches and seizures may be conducted without probable cause, suspicion of wrongdoing, or a search warrant.

There is no expectation of privacy at a border and the government's interest in protecting its borders outweighs an individual's privacy rights. However, the government is required to establish beyond a reasonable certainty that a person actually crossed the border in order for the border search exception to apply. The government cannot merely show that a person or his or her vehicle had an opportunity to cross the border. The person or vehicle must cross the border or the functional equivalent of a border.

A checkpoint may be a border or may function as the equivalent of a border. Whether a checkpoint is a border depends upon the permanent nature of the checkpoint and upon the amount of domestic traffic that passes through the checkpoint. A checkpoint is the functional equivalent of a border when a person enters the checkpoint from outside the border of the United States. A checkpoint that regulates persons who are traveling within the United States is not the functional equivalent of a border.

A border search may include a search of a person's passport and visa and a search of his or her luggage and personal effects. A border or customs official does not need to suspect criminal activity in order to search luggage or personal effects. The border or customs official may conduct a pat-down search if criminal activity is suspected. In order to conduct a strip search, the official must have a reasonable suspicion that the person is concealing contraband. However, reasonable suspicion may be based only upon evasive answers and fitting a smuggler's profile.

At a checkpoint that is permanent but that is not the functional equivalent of a border, all vehicles may be stopped and all occupants of the vehicles may be questioned with regard to citizenship and immigration status. The vehicles and their occupants may also referred to a secondary inspection station for further questioning. However, border officials may not conduct a search of the vehicles or their occupants without probable cause.

Airport Searches

When an airport is the functional equivalent of a border, the same procedures apply with regard to warrantless searches. Even when an airport is not the functional equivalent of a border, warrantless searches are permissible. Warrantless searches at airports are considered justifiable because of the need to protect passengers and airline personnel. By appearing at a boarding gate, it is implied that a passenger consents to a search. However, consent to a search must be based upon the passenger's belief that he or she can refuse to submit to the search. The search may extend to the passenger's clothing, shoes, carry-on luggage, and checked luggage.

In addition to the boarding gate, airport and government officials may stop a person in other parts of an airport based upon reasonable suspicion. These investigative stops may be even more intrusive than a "pat-down" search of a person if the officials suspect that the person is carrying weapons or other contraband. The officials have the right to briefly detain the person and to search the person and his or her luggage. A dog may be used to sniff the person's luggage. A dog's sniffing of the person's luggage does not constitute a search of the luggage.

Copyright 2005 LexisNexis, a division of Reed Elsevier Inc.

In an action involving a corporate director, officer, or employee's violation of the Act, the prosecution is required to show by way of prima facie evidence that there was sufficient evidence to warrant a finding by the trier of fact that the defendant had by reason of his position in the corporation, the responsibility and authority to prevent a violation of the Act or to promptly correct the issue and did not.

Defenses

Under the Act, a dealer cannot be prosecuted for shipping adulterated or misbranded goods in interstate commerce when the dealer holds a guaranty from the vendor that the goods were in proper form. Moreover, the dealer would not be subject to prosecution under the Act for receiving adulterated or misbranded goods if the delivery of the goods was made in good faith. However, if the dealer fails to provide the name and address of the seller of the goods, the dealer may be prosecuted.

A corporate director, official, or employee may raise the defense that he or she did not have the authority or power to prevent the corporate violation of the Act. The prosecution is required to show that the corporate director, official, or employee had, by reason of his or her position in the corporation, the responsibility or authority either to prevent in the first violation or to promptly correct the violation complained of.

A corporate director, official, or employee may also raise the defense of helplessness. It may be argued that the defendant was powerless to prevent or to correct the corporate violation of the Act. If the defendant makes the "powerless" claim, he or she is required to produce evidence to support the contention. However, the prosecution has the ultimate burden of proving beyond a reasonable doubt the defendant's guilt, including his or her power, in light of the duty imposed by the Act, to prevent or correct violating the Act.

Copyright 2005 LexisNexis, a division of Reed Elsevier Inc.