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Criminal Law Archives

Charity begins at...someplace other than Fort Lauderdale, Florida

     In the New Testament Jesus says to sell your possessions and give to charity.  In Proverbs it says, "He who has pity on the poor gives to the Lord."  In Buddhism charity is the first of the ten "perfections."  In the Koran it says, "Whatever wealth you give away, goes to your own benefit."  I think it's safe to say most if not all atheists believe in charity too.  Snake-handlers?  I don't know much about them, but the smart money is they believe in the virtues of charity as well. 


The Fourth Amendment to the United States Constitution says, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."  The reference to "persons" protects citizens against unlawful arrests (seizures).  Seems simple enough, unless you've lived in Ohio the last seventeen years.  The Ohio Supreme Court, in Ohio v. Hoffman, discussed a deputy clerk of court (not a judge) who had been signing arrest warrants for the last seventeen years.  This clerk did not review the request for an arrest warrant for probable cause as is required by the Constitution.  In fact, she testified she didn't know what probable cause was!  She said she did not make probable cause determinations because it was not her job to do so.  In a sense, she was correct.  It is a judge's job to make that determination.  The only problem was judges weren't doing their job.  These judges had passed the burden of protecting the constitutional rights of citizens to a deputy court clerk, a person with no legal training and with no authority to issue warrants.  Fortunately, a diligent attorney found out what was happening and got the Ohio Supreme Court to put a stop to it.  The State is fond of telling everyone how it represents "the people."  We defense attorneys actually do the same thing.  We just do it one person at a time.  

The Umpire Steps into the Batter's Box

Chief Justice of the United States John Roberts, in his Senate confirmation hearing, famously said, "It's my job to call balls and strikes and not to pitch or bat." We'd like to think all judges strive to do that. This past month though, the Florida Third District Court of Appeal went beyond just calling balls and strikes in a criminal case. In Saint-Hilaire v. State, WL2014-3844039 (Fla. 3rd DCA, August 6, 2014), the court had a simple issue in front of it: Law enforcement officers had seized the defendant's cell phone without a warrant and searched its contents. The United States Supreme Court held earlier this year in Riley v. California that such a practice was generally unconstitutional because it violated the Fourth Amendment prohibition against unreasonable search and seizure, even when the cell phone is in the possession of a person at the time they are arrested. The Third District followed Riley and threw out the evidence obtained from the cell phone. If the judges on that court had stopped there, it would have been fine, because they answered the only question they were asked.