Search Warrant Required for Vehicle Event Data Recorder

Do Florida Police need a search warrant to download the data from a motor vehicle’s black box?

 

Search Warrant Vehicle Event Data Recorder

Search Warrant Vehicle Event Data Recorder

A court in Palm Beach Florida has just ruled that the police need a search warrant in a DUI case when they seek to recover the data from a car’s Black Box. This device is known as a vehicle event data recorder. In this case the police downloaded the data from a car’s Black Box 12 days after a crash without obtaining a warrant. The court in a first-ever ruling in Florida found that the cops should have gotten a search warrant. The court ruled. “the constant, unrelenting black box surveillance of driving conditions could contribute to a reasonable expectation of privacy in the recorded data. Considering that the data is difficult to access and not all of the recorded information is exposed to the public, [the driver] Worsham had a reasonable expectation of privacy, and we agree with the trial court that a warrant was required before police could search the black box.”


History of Vehicle Event Data Recorders in Florida Court

In 2009 we wrote and provided a copy of another court opinion on the issues surrounding cops breaking in to a vehicle event recorder.  “Prosecutors alleged recently, data from a Corvette that was downloaded from the black box revealed that a defendant’s speed was 103 m.p.h. five seconds before impact and 98 m.p.h. one second before impact. The Speed limit was 40 m.p.h. A recent court ruling noted, ”A search warrant for property may be issued ‘[w]hen any property constitutes evidence relevant to proving that a felony has been committed.’ Section 933.02(3), Fla. Stat. (2006).” Black Box Search Warrant Article from Florida. You can read the complete decision we posted here: 2009 Black Box Florida Court Ruling  http://duifla.com/BlackBoxSearchWarrant.pdf


I have included some key quotes from the recent  Court’s opinion and the complete Court’s opinion follows below.


Florida DUI Vehicle Event Data Recorder Key Quotes


“An event data recorder is a device installed in a vehicle to record “crash data” or technical vehicle and occupant information for a period of time before, during, and after a crash.”

“It is an issue of first impression in Florida whether a warrant is required to search an impounded vehicle’s electronic data recorder or black box.”

“17 states have laws addressing event data recorders, which provide under what circumstances the data may be downloaded.”

“[T]he constant, unrelenting black box surveillance of driving conditions could contribute to a reasonable expectation of privacy in the recorded data.”


“A car’s black box is analogous to other electronic storage devices for which courts have recognized a reasonable expectation of privacy.”


Complete Florida DUI Vehicle Event Data Recorder Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STATE OF FLORIDA,
Appellant,

v.

CHARLES WILEY WORSHAM, JR.,
Appellee.
No. 4D15-2733
[March 29, 2017]

Appeal of a non-final order from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Jack Schramm Cox, Judge; L.T. Case No. 2013CF012609AMB.
Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellant.
Jack A. Fleischman of Fleischman & Fleischman, P.A., West Palm Beach, for appellee.
GROSS, J.

The state challenges an order granting appellee Charles Worsham’s motion to suppress. Without a warrant, the police downloaded data from the “event data recorder” or “black box” located in Worsham’s impounded vehicle. We affirm, concluding there is a reasonable expectation of privacy in the information retained by an event data recorder and downloading that information without a warrant from an impounded car in the absence of exigent circumstances violated the Fourth Amendment.

Worsham was the driver of a vehicle involved in a high speed accident that killed his passenger. The vehicle was impounded. Twelve days after the crash, on October 18, 2013, law enforcement downloaded the information retained on the vehicle’s event data recorder. The police did not apply for a warrant until October 22, 2013. The warrant application was denied because the desired search had already occurred.

Worsham was later arrested and charged with DUI manslaughter and vehicular homicide. He moved to suppress the downloaded information,
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arguing the police could not access this data without first obtaining his consent or a search warrant. The state defended the search on the sole ground that Worsham had no privacy interest in the downloaded information, so that no Fourth Amendment search occurred.

1 The trial court granted Worsham’s motion.

“A motion to suppress evidence generally involves a mixed question of fact and law. The trial court’s factual determinations will not be disturbed if they are supported by competent substantial evidence, while the constitutional issues are reviewed de novo.” State v. K.C., 207 So. 3d 951, 953 (Fla. 4th DCA 2016) (internal citation omitted). An appellate court is bound by the trial court’s findings of fact unless they are clearly erroneous. Id. The burden is on the defendant to show the search was invalid, “[h]owever, a warrantless search constitutes a prima facie showing which shifts to the State the burden of showing the search’s legality.” Id. (internal citation omitted).

In Florida, citizens are guaranteed the right to be free from unreasonable searches and seizures by the Fourth Amendment to the Unites States Constitution and section 12 of Florida’s Declaration of Rights. Smallwood v. State, 113 So. 3d 724, 730 (Fla. 2013). “The most basic constitutional rule” in the area of Fourth Amendment searches is that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” The exceptions are “jealously and carefully drawn,” and there must be “a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.” “[T]he burden is on those seeking the exemption to show the need for it.”

Id. at 729 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 454–55 (1971)).

“A Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” State v. Lampley, 817 So. 2d 989, 990 (Fla. 4th DCA 2002) (quoting Kyllo v. United States, 533 U.S. 27, 33 (2001)). This principle has been applied

1 The state raises inevitable discovery and good faith in its brief. We do not reach these issues because they were not preserved in the circuit court. Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005).

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“to hold that a Fourth Amendment search does not occur . . . unless ‘the individual manifested a subjective expectation of privacy in the object of the challenged search,’ and ‘society [is] willing to recognize that expectation as reasonable.’” Lampley, 817 So. 2d at 990-91 (quoting Kyllo, 533 U.S. at 33)).

Katz v. United States explained “the Fourth Amendment protects people, not places,” so “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” 389 U.S. 347, 351 (1967). One example is a car’s exterior, which “is thrust into the public eye, and thus to examine it does not constitute a ‘search.’” New York v. Class, 475 U.S. 106, 114 (1986); see also Cardwell v. Lewis, 417 U.S. 583, 592 (1974) (permitting warrantless search of an automobile’s exterior).

Nevertheless, information someone seeks to “preserve as private,” even where that information is accessible to the public, “may be constitutionally protected.” Katz, 389 U.S. at 351. This is why “a car’s interior as a whole is . . . subject to Fourth Amendment protection from unreasonable intrusions by the police.” Class, 475 U.S. at 114–15; see also United States v. Ortiz, 422 U.S. 891, 896 (1975) (“A search, even of an automobile, is a substantial invasion of privacy.”).

A car’s black box is analogous to other electronic storage devices for which courts have recognized a reasonable expectation of privacy. Modern technology facilitates the storage of large quantities of information on small, portable devices. The emerging trend is to require a warrant to search these devices. See Riley v. California, 134 S. Ct. 2473 (2014) (requiring warrant to search cell phone seized incident to arrest); Smallwood, 113 So. 3d 724 (requiring warrant to search cell phone in search incident to arrest); State v. K.C., 207 So. 3d 951 (requiring warrant to search an “abandoned” but locked cell phone).

Noting that cell phones can access or contain “[t]he most private and secret personal information, Smallwood, 113 So. 3d at 732, the Florida Supreme Court has distinguished these computer-like electronic storage devices from other inanimate objects:

[A]nalogizing computers to other physical objects when applying Fourth Amendment law is not an exact fit because computers hold so much personal and sensitive information touching on many private aspects of life. . . . [T]here is a far greater potential for the “inter-mingling” of documents and a

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consequent invasion of privacy when police execute a search for evidence on a computer.

Id. (quoting United States v. Lucas, 640 F.3d 168, 178 (6th Cir. 2011)). Because of the “very personal and vast nature of the information” they contain, cell phones are “materially distinguishable from the static, limited-capacity cigarette packet in Robinson.”2 Smallwood, 113 So. 3d at 732. “[T]he search of a static, non-interactive container, cannot be deemed analogous to the search of a modern electronic device cell phone.” Id. The Smallwood court made clear that the opinion was “narrowly limited to the legal question and facts with which [it] was presented.” Id. at 741. Nonetheless, the court reiterated its desire to protect Fourth Amendment precedent “by ensuring that the exceptions to the warrant requirement remain ‘jealously and carefully drawn.’” Id. at 740.

The United States Supreme Court drew a similar distinction between a cell phone and other tangible objects in Riley v. California. The Court held that the search incident to arrest exception did not apply because neither rationale–the interest in protecting officer safety or preventing destruction of evidence–justified the warrantless search of cell phone data. Riley, 134 S. Ct. at 2486-88. “Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers . . . .” Id. at 2489.

Searches of these “minicomputers,” with their “immense storage capacity,” are far more intrusive than searches prior to the “digital age,” which were “limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy.” Id. The capacity of these devices “allows even just one type of information to convey far more than previously possible.” Id. The Court concluded, “[t]he fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.” Id. at 2495.

It is an issue of first impression in Florida whether a warrant is required to search an impounded vehicle’s electronic data recorder or black box.3

2 United States v. Robinson, 414 U.S. 218 (1973) (permitting the warrantless search of an arrestee’s person incident to arrest if the officer had probable cause for the arrest).
3 As of this writing, 17 states have laws addressing event data recorders, which provide under what circumstances the data may be downloaded. Privacy of Data From Event Data Recorders: State Statutes, NATIONAL CONFERENCE OF STATE

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An event data recorder is a device installed in a vehicle to record “crash data” or technical vehicle and occupant information for a period of time before, during, and after a crash. NHTSA, Event Data Recorders, 49 C.F.R. § 563.5 (2015). Approximately 96% of cars manufactured since 2013 are equipped with event data recorders. Black box 101: Understanding event data recorders, CONSUMER REPORTS, http://www.consumerreports.org/cro/2012/10/black-box-101-understanding-event-data-recorders/index.htm, (published Jan. 2014).

Most of these devices are programmed either to activate during an event or record information in a continuous loop, writing over data again and again until the vehicle is in a collision. Michelle V. Rafter, Decoding What’s in Your Car’s Black Box, EDMUNDS, https://www.edmunds.com/car-technology/car-black-box-recorders-capture-crash-data.html (updated July 22, 2014). However, if triggered, the device can record multiple events. 49 C.F.R. § 563.9.

The National Highway Traffic Safety Administration has standardized the minimum requirements for electronic data recorders, mandating that the devices record 15 specific data inputs, including braking, stability control engagement, ignition cycle, engine rpm, steering, and the severity and duration of a crash. 49 C.F.R. § 563.7. Along with these required data inputs, the devices may record additional information like location or cruise control status and some devices can even perform diagnostic examinations to determine whether the vehicle’s systems are operating properly.

See Decoding ‘The Black Box’ with Expert Advice, AMERICAN BAR ASSOC. GP SOLO LAW TRENDS & NEWS, http://www.americanbar.org/content/newsletter/publications/law_trends_news_practice_area_e_newsletter_home/decodingblackbox.html (May 2005); Vehicular Data Recorder Download, Collection, and Analysis, COLLISION RESEARCH AND ANALYSIS INC., http://collisionresearch.com/services/event-data-recorder-0.

The information contained in a vehicle’s black box is fairly difficult to obtain. The data retrieval kit necessary to extract the information is expensive and each manufacturer’s data recorder requires a different type of cable to connect with the diagnostic port. Rafter, supra. The downloaded data must then be interpreted by a specialist with extensive training. Id.; see also Melissa Massheder Torres, The Automotive Black Box, 55 REV. DER. P.R. 191, 192 (2015).
LEGISLATURES, http://www.ncsl.org/research/telecommunications-and-information-technology/privacy-of-data-from-event-data-recorders.aspx (Jan. 4, 2016). Florida does not have similar legislation.

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The record reflects that the black box in Worsham’s vehicle recorded speed and braking data, the car’s change in velocity, steering input, yaw rate, angular rate, safety belt status, system voltage, and airbag warning lamp information.

Extracting and interpreting the information from a car’s black box is not like putting a car on a lift and examining the brakes or tires. Because the recorded data is not exposed to the public, and because the stored data is so difficult to extract and interpret, we hold there is a reasonable expectation of privacy in that information, protected by the Fourth Amendment, which required law enforcement in the absence of exigent circumstances to obtain a warrant before extracting the information from an impounded vehicle.

Although electronic data recorders do not yet store the same quantity of information as a cell phone, nor is it of the same personal nature, the rationale for requiring a warrant to search a cell phone is informative in determining whether a warrant is necessary to search an immobilized vehicle’s data recorder. These recorders document more than what is voluntarily conveyed to the public and the information is inherently different from the tangible “mechanical” parts of a vehicle. Just as cell phones evolved to contain more and more personal information, as the electronic systems in cars have gotten more complex, the data recorders are able to record more information.4 The difficulty in extracting such information buttresses an expectation of privacy.

Recently enacted federal legislation enhances the notion that there is an expectation of privacy in information contained in an automobile data recorder. The Driver Privacy Act of 2015 states that “[a]ny data retained by an event data recorder . . . is the property of the owner . . . of the motor vehicle in which the event data recorder is installed.” § 24302(a), 49 U.S.C. § 30101 note (2015). The general rule of the statute is that “[d]ata recorded or transmitted by an event data recorder . . . may not be accessed by a person other than an owner . . . of the motor vehicle in which the event data recorder is installed.” § 24302(b) (emphasis added). There are only five exceptions to this rule, which include authorization from a court or administrative authority or consent of the owner. § 24302(b)(1)-(5).

4 See U.S. GOV’T ACCOUNTABILITY OFF., REPORT TO CHAIRMAN, SUBCOMM. ON PRIVACY, TECH. AND THE LAW, COMM. ON THE JUDICIARY, U.S. SENATE, (Dec. 2013), http://www.gao.gov/assets/660/659509.pdf; Peter Gareffa, Senate Committee Approves Black Box Privacy Bill, EDMUNDS, (Apr. 18, 2014), https://www.edmunds.com/car-news/senate-committee-approves-black-box-privacy-bill.html.

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A state court in California has addressed the Fourth Amendment’s application to a vehicle’s data recorder. That authority is not persuasive or controlling and was decided prior to the passing of the Driver Privacy Act of 2015.

People v. Diaz, held that the defendant lacked a privacy interest in his vehicle’s speed and braking data, obtained from the “sensing diagnostic module” after a fatal accident, 153 Cal. Rptr. 3d 90 (Cal. Ct. App. 2013). It was undisputed the search was conducted without a warrant, over a year after the accident. Id. at 96. There was testimony about the defendant’s speed at the time of the accident, but the officer conceded this was based on the information downloaded from the vehicle’s sensing diagnostic module. Id. at 94.

The court concluded that the defendant failed to demonstrate “a subjective expectation of privacy in the SDM’s recorded data because she was driving on the public roadway, and others could observe her vehicle’s movements, braking, and speed, either directly or through the use of technology such as radar guns or automated cameras.” Id. at 102. Since the diagnostic module “merely captured information defendant knowingly exposed to the public,” downloading that information without a warrant was not a violation of the Fourth Amendment. Id. (citing Smith v. Maryland 442 U.S. 735, 741–45 (1979) (holding installation of a pen register did not violate the Fourth Amendment because it only recorded information “voluntarily conveyed . . . in the ordinary course of business.”)).

Diaz is unpersuasive. It relied on Smith v. Maryland, which found no expectation of privacy in information “voluntarily conveyed” to a third party. 422 U.S. at 745. However, when addressing digital devices, the Supreme Court has moved away from the Smith rationale. In United States v. Jones, the Court could have relied on Smith when considering the constitutionality of placing a GPS tracking device on a vehicle without a warrant, since the vehicle’s position “had been voluntarily conveyed to the public.” 132 S. Ct. 945, 951 (2012). Instead, the Court relied on a trespass theory to find that while “mere visual observation does not constitute a search,” attaching a device to the vehicle or reaching into a vehicle’s interior constitutes “encroach[ment] on a protected area.” Id. at 952-53.

Additionally, the Diaz court’s reliance on Smith v. Maryland seems misplaced because, as the opinion acknowledged, sensory diagnostic modules can record much more information than what is observable to the public, including “the throttle, steering, suspension, brakes, tires, and wheels.” 213 Cal. App. 4th at 748. We disagree with Diaz that all black box data is “exposed to the public.”

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Although the issue was not before the Court, the majority in Jones acknowledged that acquiring data “through electronic means, without an accompanying trespass,” could still be “an unconstitutional invasion of privacy.” Id. at 953.

In his concurring opinion, Justice Alito expressed a preference for analyzing the case by “asking whether [Jones’s] reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.” 132 S. Ct. at 958. Justice Alito observed that the Katz expectation-of-privacy test, rests on the assumption that this hypothetical reasonable person has a well-developed and stable set of privacy expectations. Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes. New technology may provide increased convenience or security at the expense of privacy, and many people may find the trade off worthwhile.
Id. at 962.

Under Justice Alito’s approach, the constant, unrelenting black box surveillance of driving conditions could contribute to a reasonable expectation of privacy in the recorded data. Considering that the data is difficult to access and not all of the recorded information is exposed to the public, Worsham had a reasonable expectation of privacy, and we agree with the trial court that a warrant was required before police could search the black box.

Affirmed.
KLINGENSMITH, J., concurs.
FORST, J., dissents with opinion.
FORST, J., dissenting.
I respectfully dissent. There are not many court opinions addressing a warrantless search of the “black box” event data recorder (“EDR”) attached to an individual’s motor vehicle.5 An opinion by a “Justice Court” in New
5 In General Motors vehicles, the EDR is also referred to as the “Sensing Diagnostic Module (SDM).” People v. Diaz, 153 Cal. Reptr. 3d 90, 92 n.2 (Ct. App. 2013); People v. Christmann, 776 N.Y.S.2d 437, 438 (Just. Ct. 2004). “The SDM . . . has multiple functions: (1) it determines if a severe enough impact has occurred to warrant deployment of the air bag; (2) it monitors the air bag’s
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York (similar to a circuit court in Florida)6 and an appellate court in California7 appear to be the only published precedent addressing the instant matter. Obviously, searches of EDRs in motor vehicles were not on the minds of the first United States Congress when the Fourth Amendment was introduced in 1789, and the United States Constitution’s right to privacy sheds no light on the subject (particularly since there is no provision actually describing such a right to privacy).8
Thus, there is no definitive answer to the question posed in this case—whether the warrantless search of Appellee’s car’s EDR constituted a violation of his Fourth Amendment protection against unreasonable searches. Nonetheless, contrary to the well-reasoned majority opinion, I conclude that the “search” of the EDR attached to Appellee’s vehicle was not a search or seizure protected by the Fourth Amendment, as Appellee did not have a reasonable expectation of privacy with respect to the data in this particular EDR.
Background
The relevant facts are set forth in the majority opinion.
Analysis
As noted in the majority opinion, “[a] Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” State v. Lampley, 817 So. 2d 989, 990 (Fla. 4th DCA 2002) (quoting Kyllo v. United States, 533 U.S. 27, 33 (2001)). The reverse is also true: “a Fourth Amendment search does not occur . . . unless ‘the individual manifested a subjective expectation of privacy in the object of the challenged search,’ and ‘society [is] willing to
components; and (3) it permanently records information.” Bachman v. Gen. Motors Corp., 776 N.E.2d 262, 271-72 (Ill. App. Ct. 2002).
6 Christmann, 776 N.Y.S.2d 437.
7 Diaz, 153 Cal. Reptr. 3d 90. Diaz is discussed in this opinion. Another California appellate court decision, People v. Xinos, 121 Cal. Rptr. 3d 496 (Ct. App. 2011), which held that the downloading of data from the vehicle’s EDR following an accident violated the driver’s Fourth Amendment rights, is not discussed as it predates Diaz and was ordered not to be officially published. Id. at 507-12.
8 Appellee does not rely upon the Florida Constitution’s Right of Privacy, Article I, Section 23. Further, that provision yields to Article I, Section 12 with respect to “searches and seizures,” with the Florida Constitutional right “construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.”
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recognize that expectation as reasonable.’” Id. at 991 (alterations in original) (quoting Kyllo, 533 U.S. at 33).
In contrast to a cellular phone, an EDR does not contain “a broad array of private information” such as photos, passwords, and other “sensitive records previously found in the home.” Riley v. California, 134 S. Ct. 2473, 2491 (2014). Significantly, the EDR in the instant case did not contain GPS information relative to the vehicle’s travels, which may be subject to privacy protection. See United States v. Jones, 565 U.S. 400, 415-17 (2012) (Sotomayor, J., concurring) (expressing concern with GPS information which “reflects a wealth of detail about [a person’s] familial, political, professional, religious, and sexual associations”). As noted in the majority opinion, the EDR in this case was only recording speed and braking data, the car’s change in velocity, steering input, yaw rate,9 angular rate, safety belt status, system voltage, and airbag warning lamp information. Moreover, this data had not been knowingly inputted by Appellee; in fact, it is likely that Appellee did not even know that the vehicle he was driving had an EDR. Therefore, it would be quite a stretch to conclude that Appellee sought to preserve this information as “private.”
The majority opinion references the United States Supreme Court’s Riley decision as well as this Court’s recent opinion in State v. K.C., 207 So. 3d 951 (Fla. 4th DCA 2016). Both cases involved cell phones. As distinguished from an EDR attached to an undercarriage of a motor vehicle, cell phones are usually carried close to an individual’s body, generally in a pants or shirt pocket or in a purse or belt case. The database of the EDR in this case carries extremely non-private, non-confidential information, such as the vehicle’s yaw rate; a cell phone, on the other hand, “collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record.” Riley, 134 S. Ct. at 2489. A reasonably prudent seller of his/her used cellphone or personal computer would clear the hard drive of all personal information; the seller of a used vehicle would be unlikely to take similar action with respect to the vehicle’s EDR.
9 “A yaw rotation is a movement around the yaw axis of a rigid body that changes the direction it is pointing, to the left or right of its direction of motion. The yaw rate or yaw velocity of a car, aircraft, projectile or other rigid body is the angular velocity of this rotation . . . .” Yaw (rotation), WIKIPEDIA (Mar. 13, 2017, 2:37 PM), https://en.wikipedia.org/wiki/Yaw_(rotation) (emphasis omitted). Yes, I also didn’t know what this was.
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In our K.C. opinion, we emphasized that, though abandoned by the phone’s owner, “[the] contents [of the cell phone] were still protected by a password, clearly indicating an intention to protect the privacy of all of the digital material on the cell phone or able to be accessed by it.” K.C., 207 So. 3d at 955. The private data in a cell phone is, for the most part, created by the owner and is password protected by the owner for his/her own benefit and privacy. The data on the EDR, however, was not created by the owner and was not protected by a password by or for the benefit of the owner (even though there apparently was a password-like encryption on the data). This data is collected and stored in the interest of public safety, including the safety of the vehicle’s driver.
In the aforementioned New York Christmann decision which involved a prosecution for speeding and failing to exercise due care, the court held that the motorist had only a diminished expectation of privacy following an accident with respect to the vehicle’s mechanical areas, and therefore retrieval by law enforcement of data stored in the vehicle’s SDM did not constitute an unreasonable search and seizure. Christmann, 776 N.Y.S.2d at 441-42; see also People v. Quackenbush, 670 N.E.2d 434, 439-40 (N.Y. 1996) (similar, and specifically referring to the diminished expectation of privacy yielding to the overwhelming state interest in investigating fatal accidents).
The California case of Diaz involved a situation similar to the instant case. Diaz, 153 Cal. Rptr. 3d 90. There was a motor vehicle accident and, as part of their investigation, law enforcement personnel, without a warrant, downloaded the SDM. Id. at 96. The California Court of Appeal affirmed the trial court’s ruling that there was no reasonable expectation of privacy with respect to the data in the SDM, finding the defendant failed to demonstrate “a subjective expectation of privacy in the SDM’s recorded data because she was driving on the public roadway, and others could observe her vehicle’s movements, braking, and speed, either directly or through the use of technology such as radar guns or automated cameras.” Id. at 102. “[T]echnology merely captured information defendant knowingly exposed to the public—the speed at which she was travelling and whether she applied her brakes before the impact.” Id.
The majority opinion discounts the reasoning in Diaz, finding it neither “persuasive [n]or controlling.” Certainly, it is not controlling. However, it is persuasive, as the trial court’s decision denying the defendant’s motion to suppress, quoted in the District Court’s opinion, is particularly logical:
“Assuming the defendant had such knowledge [that there was an SDM in the car] and also had an expectation of privacy, it
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does not seem that such expectation would be reasonable. These computer modules were placed in cars as safety devices to gather information such as braking and speed, so as to be able to deploy the air bag at an appropriate time. They were not designed to gather any personal information nor designed or developed by the government to gather incrimination evidence from a driver. One cannot record communication of any kind on them. Indeed, they are not under the control of the individual driver at all.”
The trial court further held: “[Defendant] had no reasonable expectation of privacy in her speed on a public roadway or when and if she applied her brakes shortly before the crash. If a witness observed those actions and testified to them, the evidence would be admitted. If an expert in accident reconstruction testified to them, that evidence would be admitted. There is no difference in an electronic witness whose memory is much more accurately preserved, both to exonerate and implicate defendants.”
Id. at 97.
The majority opinion maintains that Diaz inappropriately relied on Smith v. Maryland, 442 U.S. 735 (1979), and implies that Jones is the operative Supreme Court precedent for this issue. Actually, the Diaz opinion discusses Jones at some length, noting that the Supreme Court decision was based “on the common law theory of trespass in placing the GPS on the defendant’s personal property, combined with the police attempt to obtain information,” and the “trespass theory underlying Jones has no relevance [in this SDM search case] and, as the trial court aptly pointed out, the purpose of the SDM was not to obtain information for the police.” Diaz, 153 Cal. Rptr. 3d at 101. The majority in the instant case suggests that the Jones opinion’s reliance on this trespass theory when it could have relied on the Smith theory means that Smith is no longer binding precedent. But the fact that the Supreme Court chose to resolve Jones on the narrower trespass grounds rather than to wade into the waters of voluntary conveyance of information from Smith means only that trespass is a viable Fourth Amendment consideration, not that trespass is the only consideration remaining.
Furthermore, in Jones, the government placed a GPS tracking device on the defendant’s car to monitor the vehicle’s movement and location. Jones, 565 U.S. at 403. By contrast, an EDR is installed on vehicles before they are sold/leased to a driver and the purpose is not to track the vehicle’s
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location or route. Moreover, although the EDR is placed under the vehicle and most vehicle owners and drivers are unaware that there is such a black box attached to the vehicle, there is no attempt on the part of the government to secretively attach the EDR and have it record this information. Unlike the situation in Jones, the attachment of the EDR is not directed at any individual; as noted in the majority opinion, “[a]pproximately 96% of cars manufactured since 2013 are equipped with event data recorders” and they are installed prior to the conveyance of the vehicle to any individual.
Conclusion
The data that the government extracted from the vehicle that was owned and driven by Appellee in this case was not information for which Appellee or any other owner/driver had a reasonable expectation of privacy. The data was not personal to Appellee, was not password protected by Appellee, and was not being collected and maintained solely for the benefit of Appellee. The EDR was installed by the vehicle’s manufacturer at the behest of the National Highway Traffic Safety Administration and, as distinct from Jones, the purpose of the data collection is highway and driver safety. See New York v. Class, 475 U.S. 106, 113 (1986) (“[A]utomobiles are justifiably the subject of pervasive regulation by the State [and e]very operator of a motor vehicle must expect the State, in enforcing its regulations, will intrude to some extent upon that operator’s privacy.”).
Accordingly, as the extraction of data from the vehicle’s EDR in the instant case was not a search or seizure protected by the Fourth Amendment, I would reverse the trial court’s suppression of this evidence. Thus, I respectfully dissent.
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Not final until disposition of timely filed motion for rehearing.

Can the police force you to give up the Password to your phone?

iPhonePassword

Can Police Force You to Give Up iPhone Password?


“we are not inclined to believe that the Fifth Amendment should provide greater protection to individuals who passcode protect their iPhones “

 

A court in Florida just ruled that a defendant could be forced to provide the password to his iPhone. A distinction is important – they got a search warrant. Without a warrant, the case may have been decided in favor of protecting the phone owner’s privacy. The phone had a cracked screen and had been allegedly used to take photographs that would have been useful in the prosecution of the phone’s owner. You can review a typical  iPhone Search Warrant here. At the bottom of this article are numerous other articles we have written on this topic.


Right to Remain Silent

 

Usually, we think that we have a right not to incriminate ourselves. However, this Florida Court in the Tampa Bay area ruled that providing the password did not constitute testimony against one’s self. In a convoluted 19-page ruling the court found that while there may be evidence of a crime, providing the passcode was not testimonial.

Here are some excerpts from the iPhone Court’s ruling.


“That an accused may be “forced to surrender a key to a strongbox containing incriminating documents,” but he cannot “be compelled to reveal the combination to his wall safe,” Doe, 487 U.S. at 219 (Stevens, J., dissenting), is another often repeated quote. See, e.g., Hubbell, 530 U.S. at 43; Doe, 487 U.S. at 210 n.9; In re Grand Jury, 670 F.3d at 1345; Kirschner, 823 F. Supp. 2d at 669. Despite the many cases referencing the quote, we have found none that provide details of “surrender[ing] a key.” We question whether identifying the key which will open the strongbox—such that the key is surrendered—is, in fact, distinct from telling an officer the combination. More importantly, we question the continuing viability of any distinction as technology advances. See Fisher, 425 U.S. at 407 (“Several of Boyd[ v. United States, 116 U.S. 616 (1886)]’s express or implicit declarations have not stood the test of time.”). In that respect, we are not inclined to believe that the Fifth Amendment should provide greater protection to individuals who passcode protect their iPhones with letter and number . . . . ”


“In this case, the communication was sought only for its content and the content has no other value or significance.11 By providing the passcode, Stahl would not be acknowledging that the phone contains evidence of video voyeurism. See Doe, 487 U.S. at 215. Moreover, although the passcode would allow the State access to the phone, and therefore to a source of potential evidence, the State has a warrant to search the phone—the source of evidence had already been uncovered. See id. Providing the passcode does not “betray any knowledge [Stahl] may have about the circumstances of the offenses” for which he is charged. See id. at 219 (Stevens, J., dissenting). It does not implicitly “relate a factual assertion or disclose information.””


“The Fifth Amendment privilege against self-incrimination has been held to apply not only to verbal and written communications but also to the production of documents, usually in response to a subpoena or summons, because the act of production itself could communicate incriminatory statements. See Fisher, 425 U.S. at 410. The courts that have addressed the Fifth Amendment implications for providing decryption keys and passcodes have largely applied the act-of-production doctrine and the foregone conclusion exception. See, e.g., Sec. & Exch. Comm’n v. Huang, No. 15-269, 2015 WL 5611644, *1 (E.D. Penn. Sept. 23, 2015); United States v. Fricosu, 841 F. Supp. 2d 1232, 1235 (D. Col. 2012); In re Grand Jury Subpoena to Boucher (In re Boucher), 2:06-MJ-91, 2009 WL 424718, *2-3 (D. Vt. Feb. 19, 2009); Gelfgatt, 11 N.E.3d at 612; Commonwealth v. Baust, 89 Va. Cir. 267 (Va. Cir. Ct. 2014). But see United States v. Kirschner, 823 F. Supp. 2d 665, 669 (E.D. Mich. 2010) (concluding that providing the password was testimony protected by the privilege against self-incrimination).”


“Invoking the privilege still requires the accused to establish compulsion, a testimonial communication, and incrimination. And as we have said, in this case compulsion and incrimination are not at issue, leaving only the testimonial element. Testimonial elements of production include (1) the existence of the documents, (2) the accused’s possession or control of the documents, and (3) the authenticity of the documents. Hubbell, 530 U.S. at 36.”


” “The difficult question whether a compelled communication is testimonial for purposes of applying the Fifth Amendment often depends on the facts and circumstances of the particular case.” Doe, 487 U.S. at 214-15. Here, the trial court rested its determination that producing the passcode would be testimonial exclusively on the concept that production would require “the use of the contents” of Stahl’s mind. The phrase “the contents of the accused’s mind” has often been repeated in cases discussing the privilege. See, e.g., Hubbell, 530 U.S. at 43; Doe, 487 U.S. at 211; In re Grand Jury, 670 F.3d at 1345; Kirschner, 823 F. Supp. 2d at 669. And although the trial court correctly quoted the Eleventh Circuit’s statement in In re Grand Jury, that “[t]he touchstone of whether an act of production is testimonial is whether the government compels the individual to use ‘the contents of his own mind’ to explicitly or implicitly communicate some statement of fact,” 670 F.3d at 1345, the trial court did not consider the law as stated in Hubbell and Doe—that the contents of the accused’s mind must be “extensive[ly] use[d]” in creating the response, Hubbell, 530 U.S. at 43, or must “relat[e] him to the offense,” Doe, 487 U.S. at 2013.10 That is, “it is not enough that the compelled communication is sought for its content. The content itself must have testimonial significance.” Doe, 487 U.S. at 211 n.10 (emphasis added) (first citing Fisher, 425 U.S. at 408; then citing Gilbert v. California, 388 U.S. 263, 267 (1967); and then citing United States v. Wade, 388 U.S. 218, 222 (1967)). ”


“Although the phrase “the use of the contents of the accused’s mind” has been used in act-of-production cases, we note that the case cited by the Eleventh Circuit for its proposition that the use of the contents of the accused’s mind is the touchstone of whether an act of production is testimonial does not so hold. Curcio v. United States, 354 U.S. 118 (1957), provides that there “is a great difference” between compelled production of documents and compelled testimony, specifying that testifying as to the location of documents “requires him to disclose the contents of his own mind.” Id. at 127-28. ”

Source: STATE OF FLORIDA v AARON STAHL Case No. 2D14-4283  Opinion filed December 7, 2016.

Previous Coverage of Cell Phone Searches

 

www.centrallaw.com/tag/cellphone/
Dec 3, 2015 Search Warrant for an Abandoned Cell Phone. Police search lost cell phone – The cops waited 23 days to get a search warrant. A Florida Court …
www.centrallaw.com/search-warrant-i-phone-cell-phone-florida-attorney/
Jul 17, 2010 Search Warrant for a Cell Phone? Tell Me Your Story Toll Free 1-877-793-9290 or Click the Call Me Button to Your Right at the top of this page.
www.centrallaw.com/search-warrant-for-cell-phone-handset-required-florida- supreme-court-says/
May 2, 2013 Search Warrant for Cell Phone Handset Required – Florida Supreme Court Says a police officer is not authorized to search through …
www.centrallaw.com/defense-attorney-on-cell-phone-search-evidence- suppressed/
Apr 27, 2011 Criminal Defense Attorney / Lawyer notes a recent Cell Phone Search ruling on a Motion to Suppress Evidence, filed pursuant to Rule 3.190(h), …
www.centrallaw.com/police-search-lost-cell-phone/phone/
Dec 3, 2015 Search Warrant Cell Phone. Search of Lost Cell Phone. What happens when you lose a cell phone and it has illegal material on it?
www.centrallaw.com/cell-phone-searches-supreme-court-to-rule-on-warrant- requirement/
Jan 21, 2014 One friend has said, “Wow, the Supremes are taking a serious look at cell phone searches! There’s been talk for a while now about the …
www.centrallaw.com/cell-phone-search-incident-to-arrest/
May 6, 2011 One Florida court has just ruled in a 33 page opinion that pictures in a cell phone obtained from a suspect who had been arrested were …
www.centrallaw.com/search-warrant-cell-phone-update/
May 21, 2013 Wurie, Cell Phone, Search, Warrant. Florida Criminal and DUI Defense Attorney notes a Federal Court has lined up with the Florida Supreme …
www.centrallaw.com/cell-phone-and-gps-location-data-in-criminal- prosecutions/
Dec 15, 2011 Board Certified Criminal Trial Lawyer at Law Office of W.F. ”Casey” Ebsary, Jr. notes recent developments in Cell Phone Location Data used in …
www.centrallaw.com/cell-phone-tower-data-admissible/
Sep 11, 2010 Historical cell phone records of the tower sites used by a defendant were deemed admissible and efforts to suppress the records were for …

What Happens When a Victim Makes a False Report of Criminal Behavior and a Citizen is Accused or Arrested – Then Cleared of the Charges?

False Report of Criminal Behavior

False Report of Criminal Behavior

Bank of America in Florida can by hit hard for customer injured during a false robbery alarm. A team of police officers armed with heavy weapons responded to a false alarm and cops responding hit one of their customers. In this case a guy was at a bank and there was a false alarm for a robbery. An alarm was triggered at a bank and “at some point the police realized that after [the customer] had been seriously injured, it was a totally false alarm . . . .” Bank of America had a video system, but “video showing [their customer] being kicked is conveniently missing.  Bank of America denies that this footage was erased, and asserts that the surveillance program is written to purposely create gaps in footage to create an easily downloadable file.”

The customer was neither arrested nor prosecuted and he had no action for malicious prosecution. There are, “parameters within which the law should operate regarding reports made to law enforcement by discussing the importance of a judicially created qualified privilege for those who may incorrectly but innocently report criminal conduct.” The bank can be held accountable for the actions taken after it initiated and failed to quickly correct the situation it created by the false alarm.

Florida Law Weekly summarized the case as follows, “Action against bank by plaintiff who was injured by police after bank employee mistook plaintiff for bank robber and activated silent robbery alarm, and then failed to cancel alarm when it became apparent that plaintiff was not attempting to rob bank — Negligence is a valid cause of action for injuries arising from mistaken reports to law enforcement when the conduct complained of demonstrates reckless, culpable conduct to the level of punitive damages — Parties who engage in reckless, wanton, or culpable conduct in connection with reporting a suspected crime to law enforcement are not protected by qualified privilege . . . .”

False Report of Criminal Behavior Case Excerpts

“We hold that negligence is a valid cause of action for injuries arising from mistaken reports to law enforcement when the conduct complained of demonstrates reckless, culpable conduct to the level of punitive damages.”

“the jury found that the bank employees engaged in punitive conduct and the bank was liable for punitive damages. The jury awarded $3,000 in past medical expenses; $100,000 in future medical expenses; $1.5 million for past pain and suffering; and $1 million for future pain and suffering for a total of $2,603,000 in compensatory damages. The jury additionally awarded $700,000 in punitive damages.”

“[U]nder Florida law a private citizen may not be held liable in tort where he neither actually detained another nor instigated the other’s arrest by law enforcement officers. If the private citizen makes an honest, good faith mistake in reporting an incident, the mere fact that his communication to an officer may have caused the victim’s arrest does not make him liable when he did not in fact request any detention.”

Complete Text of the False Report of Criminal Behavior Opinion

 

Supreme Court of Florida

____________
No. SC14-1629
____________
RODOLFO VALLADARES,
Petitioner,
vs.
BANK OF AMERICA CORP., etc.,
Respondent.
[June 2, 2016]

LEWIS, J.

This case is before the Court to review the decision of the Third District Court of Appeal in Bank of America Corp. v. Valladares, 141 So. 3d 714, 715 (Fla. 2014). This case concerns a falsely reported robbery that resulted in injuries to Petitioner Rodolfo Valladares. The issue we must address today is whether those who falsely report criminal conduct to law enforcement have a privilege or immunity from civil liability for the false report. This issue implicates both police officer and citizen safety concerns. Valladares asserts that the decision of the Third District Court of Appeal expressly and directly conflicts with Pokorny v. First Federal Savings & Loan Ass’n of Largo, 382 So. 2d 678 (Fla. 1980). Further,

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the district court decision expressly disagreed with and rejected the decision in Harris v. Lewis State Bank, 482 So. 2d 1378 (Fla. 1st DCA 1986). We conclude that the decision below is in conflict with both Pokorny and Harris. We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. We hold that a cause of action is available to one injured as a result of a false report of criminal behavior to law enforcement when the report is made by a party which has knowledge or by the exercise of reasonable diligence should have knowledge that the accusations are false or acts in a gross or flagrant manner in reckless disregard of the rights of the party exposed, or acts with indifference or wantonness or recklessness equivalent to punitive conduct.

FACTS AND PROCEDURAL BACKGROUND

The Falsely Reported Robbery

 

On the morning of July 3, 2008, an e-mail was circulated in the Williams Island branch of Bank of America that advised staff to be on the lookout for a bank robber. The e-mail included several photos of a white male wearing a Miami Heat baseball cap, a T-shirt, and sunglasses.

At approximately 3:00 p.m. that same day, Rodolfo “Rudy” Valladares walked into his local Bank of America with the intent to cash a $100 check. Valladares, a Hispanic male, wore a loose-fitting athletic shirt, gym pants, a black Miami Heat baseball cap, and dark sunglasses. Although sunglasses and Miami

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Heat attire are not at all uncommon, nor are they significantly descriptive in South Florida, Meylin Garcia believed that Valladares, a Bank of America customer, was the bank robber depicted in the morning e-mail as soon as he entered the bank. At the time, she did not have possession of the e-mail to compare the robber’s photos with Valladares’s appearance, and the bank had not provided copies of the photos for the tellers’ desks. As Valladares approached her desk, without any suspicious conduct, Garcia pushed the silent alarm.

Failure to Correct the Alarm

 

Valladares reached Garcia’s desk and properly presented her with his check and driver’s license. Specifically, the check was a Bank of America check with Valladares’s name on it, for which there was absolutely no suspicion. The name on the check matched the name on his driver’s license, for which there was also no suspicion. Yet, Garcia still failed to do anything to cancel the robbery alarm. When asked why she did not do anything to cancel the alarm after being presented with the matching check and license, Garcia testified:

I honestly thought that he was a bank robber at that moment as soon as he walked in . . . . I had it set in my mind according to the description I had seen that morning about the e-mail. As soon as Mr. Valladares walked in the bank, I saw him, and since he was wearing a Miami Heat hat, the sunglasses—I mean I saw him, and automatically I panicked, I got scared.
After accepting the license and the check, Garcia excused herself and informed Valladares that she would return shortly. Valladares had hoped to

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complete the transaction without delay because he had $400 worth of food in his car in preparation for a Fourth of July family barbecue the next day.

As these events were occurring, assistant manager trainee Jimmy Alor received a call from corporate security, which asked him to verify the basis for the silent alarm that had been activated from Garcia’s teller station. Unaware of any emergency, Alor scanned the area and saw that Garcia had left her desk to speak with another bank employee. He approached them and asked about the silent alarm that had been triggered. Notwithstanding that Garcia already had ample opportunity to examine Valladares’s face, check, and driver’s license, and that no hint of a robbery was presented, and Alor had ample time to know the true facts, Garcia replied, “the robber is at my window.” Alor did not make any inquiry or take any steps to confirm that Valladares was or was not in fact an armed bank robber or a customer because he simply assumed from her body language that she perceived a threat. Alor made only a quick glance toward Garcia’s window and saw no suspicious conduct, but he did not attempt to gather or develop any further information. Alor walked back to his desk and, without any confirmation or verification, simply repeated Garcia’s words to the corporate security caller: the robber is at her window. When asked by corporate security if the suspect was armed, Alor responded that he had no idea but he had not seen any type of weapon.

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Alor then returned to his duties and simply acted as if there were no emergency and ignored what was happening in his bank.

Garcia returned to her position with Valladares. Valladares proceeded to make conversation with Garcia, asking her if she had plans for the Fourth of July holiday, and even invited her to his family barbecue. She replied that she had a boyfriend, to which he responded, “he’s welcome to come too.” She then studied his license again and looked at Valladares, but still failed to differentiate Valladares’s Hispanic characteristics from those of the white male depicted in the e-mail she had seen earlier that day and failed to take any steps to report the innocent transactional facts. Garcia asked Valladares to endorse the check, and handed Valladares a pen.

Garcia left her desk again, with Valladares’s check and license in hand, to present them to her manager, Bianca Mercado. In an attempt to further stall the transaction, Garcia returned to her desk and informed Valladares that she could not cash the check because the computers were down. Valladares was confused, as it was apparent that other transactions were still taking place at the bank. He asked to see the manager. When Mercado arrived, Valladares said, “What seems to be the problem? It’s just a $100 check, on a Bank of America check. Look at my driver’s license.” As yet another ruse to confuse Valladares, Mercado replied that they could not cash his check because it was endorsed in the wrong colored ink.

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Mercado added that he had to leave the bank immediately. Valladares, understandably, became irritated with the employees’ strange and rude behavior. He expressed that he could not believe he was being thrown out of the bank on these grounds, but turned around and started to leave. Approximately fifteen to twenty minutes had elapsed from the time Valladares first presented his check to his attempted exit. Absolutely nothing had occurred, suspicious or otherwise, during the entire time to suggest or hint that Valladares was anything other than a regular bank customer conducting normal banking business.

Garcia confirmed that during the entirety of Valladares’s interaction with bank employees, he did not make any threats, present a note, make a demand, or appear in any way to be armed or have a criminal intent. She conceded that Valladares did nothing to elicit any suspicion that he intended to rob the bank or engage in any unlawful behavior. Garcia even agreed that Valladares was very nice to her during their interaction. Garcia simply attempted to insist that at no point during the incident did she doubt that Valladares was the bank robber, notwithstanding all of the facts to the contrary.

As Valladares attempted to exit the bank, he saw a team of police officers armed with heavy weapons emerging from multiple sides of the building. The team was led by Officer Sean Bergert, who was the only SWAT member among the officers present. Upon arrival, Bergert realized the other non-SWAT officers

– 7 –

had created a “fatal funnel,” meaning that they were taking cover behind the glass windows of the building, which provides a dangerously false sense of security. Bergert decided to take charge and had several officers line up with him to enter the bank. Notwithstanding that multiple bank employees had been presented with the valid check and matching proper license only moments earlier, Mercado and the other bank employees not only failed to take any action to intervene when the police stormed inside the bank, but Mercado even went a step further and pointed to Valladares, signaling him as the robber. Bergert instructed everyone to lie on the floor with their hands extended. Everyone in the bank, including Valladares, complied with the command.

Valladares testified that he immediately went to the floor as ordered and outstretched his hands, with his license and check still in hand. Then, a police officer placed his boot on the back of Valladares’s head, handcuffed him, and screamed at him, “Where’s the weapon?”. Valladares further testified that the police officer kicked him in the head while he was already handcuffed:

[The police officer] started kicking me handcuffed on the floor . . . . He kicked me on the side of the head. You know, they were lifting me up by my hands . . . and sticking their hands all through my shirt and everything, asking me, Why are you doing this? Why are you doing this? Where is the weapon? And I’m like, I’m not doing anything. I’m not doing anything.

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The officer with an AR-15 rifle admitted that he kicked Valladares in the head. Valladares recalled, “I was in pain. I was terrified . . . I was afraid for my life. I didn’t know what they were going to do with me.”

There is some limited surveillance video from the day of the incident, however there happen to be suspicious, convenient breaks in the footage. The video provided by the bank contains footage of Valladares as he lay on the floor without handcuffs, and Valladares after he was already on the floor and handcuffed, but the segment of the video showing Valladares being kicked is conveniently missing. Bank of America denies that this footage was erased, and asserts that the surveillance program is written to purposely create gaps in footage to create an easily downloadable file.

The opinion below, in rendering a decision as a matter of law, incorrectly relied exclusively on the police officer’s version of the facts. Valladares, 141 So. 3d at 715. However, we view the facts in a light most favorable to the nonmoving party—in this case, Valladares. See Friedrich v. Fetterman & Assocs., P.A., 137 So. 3d 362, 365 (Fla. 2013). Furthermore, the evidence provided in the video does not support the version of the facts that a kick occurred before Valladares was handcuffed. The video revealed no kicks to the head before Valladares was fully secured in handcuffs on the floor.

– 9 –

The record does not clearly establish the exact moment that the officers realized that Valladares was not a robber, but it does indicate that at some point the police realized that after Valladares had been seriously injured, it was a totally false alarm, and officers asked to speak with Garcia. Valladares testified that the police verified his license and the check while he was still handcuffed.

An officer observed redness and bruising on the side of Valladares’s head and called the paramedics. The paramedics advised Valladares to go to the hospital. Alor, the assistant bank manager trainee who had spoken with corporate security, approached Valladares while he was with the paramedics and asked if he was okay. Valladares stated that Alor also admitted to him that they realized that they had the wrong person and were terribly wrong.

During trial, Garcia admitted and confirmed that she was wrong in failing to properly and fully inform Alor and Mercado that Valladares was a customer, and that she was wrong in failing to say something to the police officers when they rushed in and attacked Valladares.

Damages

 

Following the kicks to the head, Valladares experienced headaches that were unlike any he had ever experienced, and was placed on pain medication. Valladares sought attention at a local hospital for his head pain that became

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unbearable. However, after waiting about twenty hours in the emergency room, the hospital refused to treat him because he lacked health insurance.
He next sought treatment with a neurologist, a neuro-ophthalmologist, and a psychologist. The examinations by the neurologist revealed that Valladares suffers from muscle contractions that cause persistent headaches on a daily basis. Valladares suffers from sudden blurry vision, and as a result he can no longer work. His neuro-ophthalmologist diagnosed Valladares as having traumatic optic neuropathy, which could not be cured or corrected with corrective lenses.

Valladares’s older sister established that her brother, once a happy person who hosted social gatherings at his apartment, became a social recluse after the incident. Valladares was forced to return to live with his parents because he spent the majority of his days bedridden and could no longer pay his rent. He has become a hoarder and is embarrassed to allow others into his bedroom. Valladares has installed a camera at his home because he fears he is being watched, and also has installed two locks on his bedroom door. Valladares avoids the area where the bank is located, no longer has any friends, and is unable to maintain a romantic relationship as a result of sexual dysfunction. Based on these various medically related problems, his psychologist diagnosed him as having post-traumatic stress disorder (PTSD) with anxiety and depression. The psychologist is of the opinion

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that Valladares is “[a]t the severe end of the [PTSD] spectrum” and opines that the condition will only worsen.

Legal Proceedings

Following the incident at the bank, Valladares filed an action against Bank of America for negligence, battery, and false imprisonment.1 In an apparent attempt to comply with the legislatively established permissive scope of punitive damages pursuant to Florida Statutes, section 768.72 (1999), Valladares did not include an allegation for punitive damages in his initial complaint. Instead, he sought punitive damages for the counts of battery and false imprisonment in his Second Amended Complaint. However, as evidence developed, it became clear that Valladares sought relief for punitive conduct, and the bank was aware of the allegations. Further, Valladares consistently asserted acts beyond negligent reporting. Specifically, the negligence count in Valladares’s original complaint provided in part:

10. The Defendant, BANK OF AMERICA, breached its duty of reasonable care in one or more of the following ways:

(a) Negligently and carelessly activating and failing to cancel the silent robbery alarm, and failing to cancel said alarm when it knew or in the exercise of reasonable care should have known that the Plaintiff was not attempting to rob the bank;
(Emphasis added).

1. Because Valladares was neither arrested nor prosecuted, he had no action for malicious prosecution.

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Following a lengthy trial, the jury was instructed on claims of negligence, comparative negligence, false imprisonment, battery, and punitive damages. With respect to vicarious liability, the jurors were instructed, “Bank of America is responsible for any negligence of its employees in failing to supervise other employees.” Furthermore, the punitive damages instruction provided:

Valladares claims that punitive damages should be awarded against Bank of America for its employees’ conduct in in [sic] the battery and false imprisonment of Valladares. Punitive damages are warranted if you find by clear and convincing evidence that Bank of America’s employees were personally guilty of intentional misconduct, which was a substantial cause of injury to Valladares.
The verdict form itself did not specify that the punitive damages should be awarded only if the jury found that Bank of America committed one of the intentional torts.

The jury found that Bank of America was negligent, and that there was no negligence attributed to Valladares. However, the jury found in favor of the defendant bank on the claims for battery and false imprisonment. The instructions stated that punitive damages should be awarded in conjunction with findings against the bank if the bank employees were personally guilty of intentional misconduct. Notwithstanding the battery and false imprisonment findings, the jury found that the bank employees engaged in punitive conduct and the bank was liable for punitive damages. The jury awarded $3,000 in past medical expenses;

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$100,000 in future medical expenses; $1.5 million for past pain and suffering; and $1 million for future pain and suffering for a total of $2,603,000 in compensatory damages. The jury additionally awarded $700,000 in punitive damages.

At the close of trial, the jury verdict appeared to be inconsistent in that the jury found in favor of the bank on the battery and false imprisonment claims, but the jury found in favor of Valladares that bank employees were personally guilty of punitive misconduct on punitive damages. Valladares’s counsel brought this verdict inconsistency to the attention of the trial judge and the bank. Valladares requested that the matter be resubmitted to the jury. The bank objected to having the jury consider the inconsistency, disagreed, and waived any objection to the verdict. The bank later moved to set aside the judgment, for judgment notwithstanding the verdict, for new trial, and for remittitur. Each was denied and judgment was entered in favor of Valladares.

District Court Proceedings

The Third District reversed and remanded for entry of judgment for the bank. After offering only one paragraph summarizing the incident in a light most favorable to the bank contrary to well established appellate principles, the Third District concluded that a person who contacts law enforcement to report criminal activity cannot be liable under a theory of simple negligence. Valladares, 141 So. 3d at 715.

– 14 –

Primarily relying on Pokorny, the Valladares court determined that those who report crimes are protected by a qualified privilege, and thus cannot be held liable for making a good faith report to the police, absent a showing of malice. Id. at 717. The court analogized the malice requirement to cases that concern malicious prosecution, arrest, defamation, or slander. Id. at 718. Ultimately, the court determined that the same malice standard should be applied to physical injury caused by mistaken reports to law enforcement. Id. Based on this standard, the court reasoned that the plaintiff failed to prove the elements required to establish a cause of action because he failed to present a claim beyond simple negligence.

Further, the court acknowledged that Harris was a case that cut against applying a qualified privilege to reports of suspected criminal activity: “To the extent Harris holds that a person can be liable for a negligent, but good faith, mistake in summoning the police, it conflicts with the authority summarized above which governs analogous situations. We respectfully disagree with it.” Id. at 718 (emphasis added). Valladares now seeks review by this Court.

ANALYSIS

 

This question presents a pure question of law and is, therefore, subject to de novo review. See Jackson-Shaw Co. v. Jacksonville Aviation Auth., 8 So. 3d 1076, 1084-85 (Fla. 2008).

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A misunderstanding of Florida law in connection with reports of criminal conduct to law enforcement has generated the foundation for the conflict we must now resolve, which involves this case, Pokorny, and Harris. Contrary to the understanding of the district court and Bank of America, Pokorny did not fully resolve all issues of negligence in this false reporting context. Pokorny did outline some parameters within which the law should operate regarding reports made to law enforcement by discussing the importance of a judicially created qualified privilege for those who may incorrectly but innocently report criminal conduct. Harris, on the other hand, directly discussed negligence, recognizing that a cause of action for negligent reports to law enforcement exists when the conduct goes beyond an innocent misunderstanding. The decision below expressly states that it disagrees with Harris. In addition, the decision below is in conflict with Pokorny because it has improperly applied Pokorny to the facts in this case. It is critical that we recognize and maintain a real, meaningful distinction between intentional torts, malicious prosecution, false arrest, and negligent acts arising from conduct in this context.

Although Valladares did not assert a claim of malicious prosecution, slander, or defamation, the Third District nonetheless incorrectly looked only to these types of cases for guidance. The confusion is not uncommon because these are the causes of action that most commonly arise from incorrect reports to the police. See

– 16 –

Valladares, 141 So. 3d at 718. However, the facts in the instant case are different. Although similar to certain victims of malicious prosecution, slander, and defamation, Valladares was wrongfully accused of committing a crime and suffered damages as a result. This reliance upon Pokorny is misplaced because it is not a negligence case. Further, Valladares lacked a cause of action under a malicious prosecution theory because he was never arrested, nor was he prosecuted.

The Third District primarily relied on Pokorny, which also involved a falsely reported bank robbery. In Pokorny, the plaintiff alleged that the bank had engaged in negligent, reckless, or intentional misconduct that proximately caused the false imprisonment of the plaintiff. 382 So. 2d at 680. This Court considered two of the five questions submitted for review:

1. Did the actions of the employees of the defendant, First Federal Savings and Loan Association of Largo, Florida, constitute “direct procurement” of an arrest under the teachings of Johnson v. Weiner, 19 So. 2d 699 (Fla. 1944), and its progeny?

2. Do the rules governing arrest and imprisonment by private citizens apply in this case?

Id. at 680-81.2

2. Three other questions were certified to this Court but were not answered. Pokorny, 382 So. 2d at 681, 683.

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The jury was instructed that the bank could not be held liable if it found that the teller who reported the robbery acted reasonably in believing that a robbery was occurring, and the jury returned a verdict in favor of the bank. Id. at 680. This Court concluded that the teller acted reasonably and in good faith, and ultimately held in the arrest context that:

[U]nder Florida law a private citizen may not be held liable in tort where he neither actually detained another nor instigated the other’s arrest by law enforcement officers. If the private citizen makes an honest, good faith mistake in reporting an incident, the mere fact that his communication to an officer may have caused the victim’s arrest does not make him liable when he did not in fact request any detention.

Id. at 682.

Harris also involved a false report of criminal activity at a bank. 482 So. 2d 1378. Harris was a customer at Lewis State Bank who realized that a strange name, “John Lewis,” had appeared on her account. Id. at 1381 n.8. After informing Lewis State Bank of the apparent mistake, the bank told Harris that she could continue to withdraw money from the account. Id. Harris returned to Lewis State Bank and provided it with her social security and voter registration cards. Id. The bank also taught her how to fill out a withdrawal slip and allowed her to complete another withdrawal. Id. Harris made four additional withdrawals without issue. Id. When John Lewis finally realized that $975 had been withdrawn from his account, the bank indicated that someone had fraudulently

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withdrawn money from his account. Id. Over three months later, Harris returned to Lewis State Bank and was apprehended by bank employees, who then reported her to the sheriff’s department and delivered her into custody. Id.

Harris’s negligence claim was dismissed at the trial level based on the language regarding negligence in Pokorny. Id. at 1383. Lewis State Bank argued the negligence count should fail because the only cause of action available was malicious prosecution.3 See id. The court in Harris found that this was a misreading of Pokorny, reasoning:

It is at least arguable that in the case sub judice, the misinformation allegedly reported to the police was not the result of an honest, good faith mistake on the part of the bank. The allegations upon which all the counts of appellant’s complaint are based include acts beyond the innocent misunderstanding portrayed in Pokorny.
Id. at 1384 (emphasis added).

Ultimately, the Harris court held that a negligence action was proper once the conduct of the bank passed a certain threshold:

Because appellant’s complaint sufficiently alleged a relationship voluntarily entered into by the bank which created a duty on the part of the bank to protect appellant from false accusations of forgery and theft, and because the allegations of the complaint, if taken as true, indicate that the bank had knowledge, or by the exercise of reasonable diligence would have had knowledge, that its acts and omissions were likely to result in injury to appellant, the trial court improperly dismissed the count for negligence.

Id. at 1385 (emphasis added).

3. Lewis State Bank additionally claimed that false imprisonment and fraud were not legitimate claims.

– 19 –

Rather than relying on the direct holding of Pokorny, the district court in this case focused on dicta—the discussion suggesting that malice is required to state a cause of action for mistakenly reporting a crime in the arrest context—in concluding that Valladares failed to allege a proper cause of action. However, Pokorny did not address a cause of action for negligent reporting. Indeed, the holding in Pokorny defined “direct procurement” under an arrest and false imprisonment cause of action. The only statements made by this Court in Pokorny regarding a cause of action for negligent reporting were made in dicta. Furthermore, there is no statement in Pokorny that abolishes negligent reporting as a cause of action, nor did Pokorny point to any other cases that prohibit a cause of action for negligent reporting. Therefore, the Third District erred in holding that this Court’s decision in Pokorny precluded a cause of action for negligent reports to law enforcement.

Of course, this Court and others have long recognized that a judicially created qualified privilege exists in regard to injuries resulting from malicious prosecution, false imprisonment, defamation, and slander. See Fridovich v. Fridovich, 598 So. 2d 65, 68-69 (Fla. 1992) (holding that a qualified privilege exists for defamatory statements made to police when such statements are not made maliciously); Burns v. GCC Beverages, Inc., 502 So. 2d 1217, 1220 (Fla. 1986) (holding that a company was not liable for malicious prosecution when an

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employee, in good faith and without specifically requesting arrest, reported suspected criminal activity to law enforcement); Myers v. Jim Russo Prison Ministries, Inc., 3 So. 3d 411, 412 (Fla. 2d DCA 2009) (applying the qualified privilege to slander arising from false reports made to police); Harris v. Kearney, 786 So. 2d 1222, 1225 (Fla. 4th DCA 2001) (reasoning under Pokorny that there was no false imprisonment claim against Department of Children and Family agents who filed a complaint that resulted in the arrest of the appellant because the complaint was made in good faith); Manis v. Miller, 327 So. 2d 117, 118 (Fla. 2d DCA 1976) (holding that there is no liability “for false imprisonment upon a witness making an honest, good faith mistake in identifying a criminal suspect where the identification contributes to arrest and prosecution of the suspect”).

This qualified privilege for mistaken, but good faith reports of suspected criminal activity is rooted in a public policy concern. In Pokorny, this Court recognized the dangers of a standard that would deter citizens from reporting crimes for fear of liability:

Prompt and effective law enforcement is directly dependent upon the willingness and cooperation of private persons to assist law enforcement officers in bringing those who violate our criminal laws to justice. Unfortunately, too often in the past witnesses and victims of criminal offenses have failed to report crimes to the proper law enforcement agencies. Private citizens should be encouraged to become interested and involved in bringing the perpetrators of crime to justice and not discouraged under apprehension or fear of recrimination.

– 21 –

Pokorny, 382 So. 2d at 682 (quoting Manis, 327 So. 2d at 117).

At the same time, this Court has considered the dangers of a standard that would provide absolute immunity or an absolute privilege for those who report crimes. In Fridovich, this Court considered whether false statements made to an officer are absolutely privileged from liability for defamation, even when made maliciously. This Court held that the privilege was not absolute because such a privilege would prevent the Court from providing a forum for redress of every wrong. Fridovich, 598 So. 2d at 69. The Court instead opted for a qualified privilege that precluded intentional or malicious reports from privilege. Id. at 69.

Therefore, the standard necessary is one that maintains a balance between protecting individuals from abusive accusations to the police, and encouraging citizens to report suspected criminal activity, as expressed in Burns:

The tort of malicious prosecution is premised on the right of an individual to be protected from unjustifiable litigation or unwarranted criminal prosecution. Against this right, the need of society to bring criminals to justice by protecting those who, in good faith, report and legally prosecute persons apparently guilty of crime must be balanced. The latter need, in addition to the public policy in favor of the termination of litigation, dictates the plaintiff’s heavy burden of proof.

Burns, 502 So. 2d at 1219.

Bank of America incorrectly interprets Pokorny to mean that the only cause of action available to Valladares was malicious prosecution. However, Valladares had no cause of action for malicious prosecution because he was never arrested or

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prosecuted. See id. A standard that would preclude any cause of action for conduct beyond mere negligent reporting simply because the plaintiff was not arrested would not support a careful balance between protecting victims of falsely reported crimes and encouraging good faith reports. Indeed, the standard proposed by the bank would prejudice victims such as Valladares. Further, such a standard would shield negligent defendants from incurring liability for their tortious conduct simply because law enforcement chooses not to prosecute an individual. Thus—regardless of whether a wrongful reporting resulted in an arrest—public policy supports the conclusion that those who are injured as a result of incorrect reports to the police should have access to redress for injuries. Moreover, this Court is obliged by the Florida Constitution to provide access to courts for every wrong. See art. I, § 21, Fla. Const. We cannot turn a blind eye to those who cannot allege malicious prosecution, but nonetheless sustain injuries due to incorrect reports to police. At the same time, we recognize the importance of encouraging citizens to report suspected crimes. Therefore, we hold that a cause of action for negligent reporting arises when there is incorrect reporting plus conduct on the part of the reporting party that rises to the level of punitive conduct.
The conduct required to allege punitive conduct reaches beyond simple negligence. U.S. Concrete Pipe Co. v. Bould, 437 So. 2d 1061, 1064 (Fla. 1983) (“Punitive damages cannot be assessed for mere negligent conduct, but must be

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based on behavior which indicates a wanton disregard for the rights of others.” (citing Winn & Lovett Grocery Co. v. Archer, 171 So. 214 (1936))). This Court has defined the level of negligent conduct necessary to warrant punitive damages as follows:

The character of negligence necessary to sustain an award of punitive damages must be of a “gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them.”
Owens-Corning Fiberglas Corp. v. Ballard, 749 So. 2d 483, 486 (Fla. 1999) (quoting White Const. Co. v. Dupont, 455 So. 2d 1026, 1029 (Fla. 1984), receded from on other grounds by Murphy v. Int’l Robotic Sys., Inc., 766 So. 2d 1010 (Fla. 2000)); Am. Cyanamid Co. v. Roy, 498 So. 2d 859, 861-62 (Fla. 1986) (also quoting White Const. Co., 455 So. 2d at 1029); Chrysler Corp. v. Wolmer, 499 So. 2d 823, 824 (Fla. 1986) (citing Carraway v. Revell, 116 So. 2d 16, 19-20 (Fla. 1959)); see also W.R. Grace & Co.—Conn. v. Waters, 638 So. 2d 502, 503 (Fla. 1994) (“Punitive damages are appropriate when a defendant engages in conduct which is fraudulent, malicious, deliberately violent or oppressive, or committed with such gross negligence as to indicate a wanton disregard for the rights of others.”). In this context, Florida Standard Jury Instruction (Civil) 503.1(b)(2)

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defines gross negligence as conduct that is “so reckless or wanting in care that it constitute[s] a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.”
Relatedly, this Court has recognized that the required level of negligence for punitive damages is equivalent to the conduct involved in criminal manslaughter. Como Oil Co., Inc. v. O’Loughlin, 466 So. 2d 1061, 1062 (Fla. 1985) (discussing the holding in White Const. Co., 455 So. 2d at 1029); see also Carraway, 116 So. 2d at 18-19 (“[T]he character of negligence necessary to sustain a conviction for manslaughter is the same as that required to sustain a recovery for punitive damages.”).

By requiring something more than simple negligence, but less than intent or malice, a requirement that the conduct rise to the level of punitive conduct in cases of incorrect reports to law enforcement accomplishes the task of encouraging legitimate criminal reports while providing a safeguard against abuse. At one time reporting criminal activity to law enforcement was viewed as a circumstance that would not lead to unexpected problems. Unfortunately, with the amount of violence and force that law enforcement officers face and encounter daily when they respond to reports of suspected criminal activity, officers at times respond with what may appear to the layman as significant force. The necessity of this force is a harsh reality in a world that has become increasingly violent. However,

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if a party has information that he or she has incorrectly reported a particular individual, or should have known it was incorrect, and the force was applied, such a report is above and beyond a simple, innocent report of conduct. Therefore, parties who engage in reckless, wanton, or culpable conduct in connection with reporting a suspected crime to law enforcement are not protected by the qualified privilege. Public policy supports a limited immunity for those who make innocent, simple mistakes, but that limited immunity cannot extend to conduct that recklessly disregards the rights of others. In the case of Valladares, the bank had ample information and ample time to know the true facts and to correct the false report, but failed to do so. Once there is information indicating that a crime is not being committed, this limited privilege should not extend to a person’s failure to alert law enforcement that a reported crime is a mistake or simply wrong. This goes a step beyond negligence. A standard that demands more than simple negligence, but does not overburden the plaintiff with proving intent or malice, serves the interest of encouraging reports of criminal activity while protecting victims from punitive conduct. It also protects law enforcement from being incorrectly and unnecessarily involved in an event with force and violence that can be avoided.

The Third District improperly applied the limited qualified privilege discussed in Pokorny to the facts in the instant case. We hold that the privilege

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does not apply to incorrect and wrongful reports made to law enforcement when the conduct rises to the level of punitive conduct. When the conduct in connection with reporting suspected criminal activity evinces a reckless disregard of the safety and rights of others—or as in this case—the parties involved either knew or should have known that their conduct was likely to cause harm, the qualified privilege cannot provide immunity to such behavior. Such an absolute immunity would frustrate the purpose of the qualified privilege, which is meant to encourage police reports by protecting only those who make innocent mistakes.

Additionally, we conclude that the case below is in conflict with Harris. The case below interpreted Harris to hold that there is a cause of action for simple negligence when a crime is misreported in good faith, and thus expressly disagreed with it. Valladares, 141 So. 3d at 718. This was a mischaracterization of Harris.

Because we have confirmed that Pokorny did not abolish negligence as a cause of action for incorrect reports to law enforcement, the holding in Harris is consistent with Florida law. The trial court in Harris erred when it dismissed a negligence claim because the acts of the defendant went “beyond the innocent misunderstanding” in Pokorny. This language demonstrates a cause of action for something beyond simple negligence, but not necessarily something at the level of malice or intent. There is no basis to support that the trial court in Harris was required to make a finding of actual knowledge or intent. Rather, the holding in

– 27 –

Harris is consistent with the public policy concern to encourage reports to law enforcement without condoning reckless, culpable conduct where the defendant knows or should know that the conduct would result in harm to others. Bank of America’s behavior was analogous to the behavior of the bank in Harris in that it also committed acts that went beyond an innocent misunderstanding.

Valladares did not specifically allege punitive damages under the negligence count in his original complaint in an attempt to comply with section 768.72, Florida Statutes. Although this presents a problem with his award for punitive damages, it should be noted that this statute, precluding an allegation of punitive damages in the initial complaint, has no application to a cause of action for negligent reporting of criminal conduct. Section 768.72 pertains only to a demand for punitive damages. Thus, a plaintiff asserting a cause of action for conduct that rises to the level of punitive conduct in the context of criminal reporting must include that allegation in the initial complaint.

In this case, Valladares did plead beyond simple negligence in reporting in his Second Amended Complaint. Valladares’s Second Amended Complaint provides, in relevant part, under the count for negligence:

9. The Defendant, BANK OF AMERICA, owed a duty to use reasonable care for the Plaintiff’s safety.
10. The Defendant, BANK OF AMERICA, breached its duty of reasonable care in one or more of the following ways:

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(a) Negligently and carelessly activating and failing to cancel the silent robbery alarm, and failing to cancel said alarm when it knew or in the exercise of reasonable care should have known that the Plaintiff was not attempting to rob the bank;

(b) Failing to properly train its employees, including but not limited to Defendants ALOR and GARCIA, concerning the identification of suspected bank robbers, and the handling of suspected robberies that turn out to be unfounded.

(Emphasis added).

Here, Valladares did not allege negligent reporting alone. Valladares alleged negligent reporting, and separately alleged the bank’s failure to cancel the report after the bank had sufficient information to know that Valladares was not a bank robber.

Moreover, the bank cannot avoid responsibility by claiming that it does not owe a duty to its customers. We have long recognized that businesses owe a duty of reasonable care to their invitees to maintain safe conditions on business premises. Fetterman & Assocs., 137 So. 3d at 365. Specifically, businesses owe their invitees a duty of care to (1) maintain their premises in a way that ensures reasonably safe conditions, and (2) advise the invitee of any reasonably unknown hidden dangers of which the owner either knew or should have known. Id. at 365 (quoting Morales v. Weil, 44 So. 3d 173, 178 (Fla. 4th DCA 2010)). This duty not only applies to dangerous conditions that arise and require correction, but also to taking action to mitigate or eliminate the possibility of a foreseeable risk of harm before it occurs. See Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d

– 29 –

256, 259-60 (Fla. 2002) (discussing the mode of operation theory). One may establish foreseeability by a showing that the business had actual or constructive knowledge that a dangerous condition that is likely to cause harm exists on the premises. Hall v. Billy Jack’s, Inc., 458 So. 2d 760, 761 (Fla. 1984) (discussing foreseeability in the context of a tavern’s knowledge of a person’s inclination to be violent). If despite knowledge or actual knowledge of a risk of danger, management still fails to take steps to avoid that danger, the business may have breached its duty and thus be required to pay damages for resulting injuries to its invitee. See id. at 762.

In this case, the jury instructions provided that a finding of negligence against the bank was warranted if the jury found the bank to be vicariously liable for the negligent actions of its employees, and the jury did make such a finding. Additionally, our own review of the record reveals numerous wrongful actions from the time Valladares entered the bank until he was severely injured by a violent kick to the head.

However, because there was a failure to allege punitive conduct in the pleadings, improper instructions to the jury regarding punitive conduct and intentional conduct, an inconsistency in the verdict, and an inappropriate argument that an intentional act is required for a cause of action for negligent reporting, we

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cannot simply reinstate the jury verdict. This case must be remanded for a new trial.

CONCLUSION

 

For the foregoing reasons, we conclude that the decision below expressly and directly conflicts with the decisions in Pokorny and Harris. We hold that negligence is a valid cause of action for injuries arising from mistaken reports to law enforcement when the conduct complained of demonstrates reckless, culpable conduct to the level of punitive damages. We therefore quash the decision below, and remand this case for new trial.

It is so ordered.

LABARGA, C.J., and PARIENTE, QUINCE, and PERRY, JJ., concur.

CANADY, J., dissents with an opinion, in which POLSTON, J., concurs.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED.

CANADY, J., dissenting.

Because I conclude that the decision of the Third District in Bank of America Corp. v. Valladares, 141 So. 3d 714 (Fla. 3d DCA 2014), does not expressly and directly conflict with our decision in Pokorny v. First Federal Savings & Loan Ass’n of Largo, 382 So. 2d 678 (Fla. 1980), or the decision of the First District in Harris v. Lewis State Bank, 482 So. 2d 1378 (Fla.

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1st DCA 1986), I would dismiss this case for lack of jurisdiction under article V, section 3(b)(3) of the Florida Constitution.

“This Court may only review a decision of a district court of appeal that expressly and directly conflicts with a decision of another district court of appeal or the Supreme Court on the same question of law.” Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980). This Court’s jurisdiction to review decisions of courts of appeal for express and direct conflict is invoked by “the application of a rule of law to produce a different result in a case which involves substantially the same [controlling] facts as a prior case” or “the announcement of a rule of law which conflicts with a rule previously announced by this court or another district[.]” Mancini v. State, 312 So. 2d 732, 733 (Fla. 1975); see Adams v. Seaboard Coast Line R.R. Co., 296 So. 2d 1, 3 (Fla. 1974).
Valladares does not expressly and directly conflict with Pokorny because the cases do not announce conflicting rules of law.

In Valladares, the Third District addressed whether a person can be held liable for simple negligence for contacting the police to report suspected criminal activity and held that
[a] person calling the police to report a possible crime is not liable for a good faith mistake even if the individual reported suffers personal injuries at the hands of the police. Calling the police to report a crime rises to the level of a tort only if the reporter acts maliciously, meaning the reporter either knows the report is false or recklessly disregards whether the report is false.

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Valladares, 141 So. 3d at 715, 718. In contrast, this Court in Pokorny addressed whether a person may be held liable for unlawful detention or false imprisonment based on contacting the police to report suspected criminal activity. In Pokorny we held that under Florida law a private citizen may not be held liable in tort where he neither actually detained another nor instigated the other’s arrest by law enforcement officers. If the private citizen makes an honest, good faith mistake in reporting an incident, the mere fact that his communication to an officer may have caused the victim’s arrest does not make him liable when he did not in fact request any detention.

Pokorny, 382 So. 2d at 682. Although both Valladares and Pokorny involve fact patterns in which the defendant allegedly made an erroneous report to the police, they deal with different theories of liability. Valladares addresses a claim of simple negligence and Pokorny addresses claims of unlawful detention and false imprisonment. But the reasoning of the two cases is consistent: both recognize a rule of no liability for good faith mistakes associated with erroneous reports to the police. And nothing in Pokorny suggests that the good faith rule it articulates should not be extended to a claim of simple negligence for making an erroneous report to the police. Pokorny thus provides no basis for the Court to exercise conflict jurisdiction over Valladares.

Nor does Valladares expressly and directly conflict with Harris. As explained previously, Valladares addressed whether an individual can be held liable for simple negligence for contacting the police to report suspected criminal

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activity, and the Third District held that a person calling the police to report a possible crime is not liable for a good faith mistake even if the individual reported suffers personal injuries at the hands of the police. Valladares, 141 So. 3d at 715, 718. The First District in Harris addressed the sufficiency of a negligence cause of action to withstand a motion to dismiss, reasoned that “[i]t is at least arguable that in the case sub judice, the misinformation allegedly reported to the police was not the result of an honest, good faith mistake on the part of the bank[,]” and held that [b]ecause appellant’s complaint sufficiently alleged a relationship voluntarily entered into by the bank which created a duty on the part of the bank to protect appellant from false accusations of forgery and theft, and because the allegations of the complaint, if taken as true, indicate that the bank had knowledge, or by the exercise of reasonable diligence would have had knowledge, that its acts and omissions were likely to result in injury to appellant, the trial court improperly dismissed the count for negligence.

Harris, 482 So. 2d at 1384-85 (emphasis added). Specifically, the complaint in Harris alleged the bank had encouraged and facilitated withdrawals by the appellant from a third person’s account; that “the bank did not reveal to [that person] what had transpired between bank employees and appellant, but instead led him to believe that someone with criminal intent had” made withdrawals based on a forged signature; and that the appellant was “seized by bank employees” and turned over to the custody of the police. Id. at 1381 n.8. These facts in Harris set the case apart from Valladares, where a bank teller simply “mistook Valladares for a bank robber” and made a report to the police. Valladares, 141 So. 3d at 715.

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Nothing in Harris suggests that liability can be predicated on a good faith mistake in reporting a suspected crime to the police. There is no express and direct conflict with Valladares.
This Court lacks jurisdiction under the Florida Constitution to review Valladares. Accordingly, I dissent.

POLSTON, J., concurs.

Application for Review of the Decision of the District Court of Appeal – Direct Conflict of Decisions
Third District – Case No. 3D12-1338 (Miami-Dade County)

Joel Stephen Perwin of Joel S. Perwin, P.A., Miami, Florida; and Mark Gabriel DiCowden of Mark G. DiCowden, P.A., Aventura, Florida,
for Petitioner Adam Matthew Topel, J. Randolph Liebler, and Tricia Julie Duthiers of Liebler, Gonzalez & Portuondo, Miami, Florida,
for Respondent

Source: http://www.floridasupremecourt.org/decisions/2016/sc14-1629.pdf

Pasco Criminal Defense Attorney Denied Access to Client – Conviction Overturned

Is a defendant allowed access to an attorney when questioned by the police?

 

Not in Pasco County, Florida – Until this week, a Pasco Criminal Defense Attorney could be denied access to a client who was under interrogation by detectives. A running joke in this small Florida county was that, “The Supreme Court closes at 5 o’clock.” The cops here run over defendant’s rights with great pride and have the support of the Prosecutors.

“he must be clearly informed that he has the right to

consult with a lawyer and to have the lawyer

with him during interrogation”

Pasco Criminal Defense Attorney

“I want all questioning to stop. ” Said the Pasco Criminal Defense Attorney

Is a defendant allowed access to an attorney when questioned by the police? Let’s take a look at the issue as decided by the Florida Supreme Court. Pasco County detectives were up to their old tricks in violating a defendant’s rights in a murder case. The Florida Supreme Court has reversed a murder conviction.

A Pasco County Criminal Defense Attorney retained by the family arrived at the police interrogation. After determining that The defendant was being interrogated in the building, the deputy at the counter advised the attorney that it would not be possible to convey any information to the location where The defendant was being questioned by any means, including e-mail, telephone, a knock on the door, or even a note slipped under the door. Although the attorney stated:

“I want all questioning to stop.

I don’t want anymore [sic] questioning

to go on without my presence.”

The attorney was not allowed to see or otherwise communicate with the defendant in any manner. Facing that insurmountable obstacle, the attorney departed from the sheriff’s office at 2:17 p.m., just ten minutes before the defendant commenced his confession. The defendant was first informed about the presence of the attorney only after he directed the detectives to the burial site.

What is in the Miranda Warnings?

We have all seen countless television shows where cops give warnings to suspects. Apparently these cops did not watch television or chose to avoid the important provisions of the landmark Constitutional decision, Miranda v. Arizona, 384 U.S. 436 (1966). However, we can go right to the language used by the United States Supreme Court to see what they told police and prosecutors 50 years ago:

“The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him.” Miranda v. Arizona, 384 U.S. 436 (1966). Let’s see what the Florida Supreme Court said about this type of police conduct.

“defendant’s statement resulted from a law enforcement officer’s illegal actions,

that evidence is ‘fruit of the poisonous tree’ and the trial court should exclude it

from trial.”

Pasco Criminal Defense Attorney Case Excerpts

 

“In light of the foregoing, we hold that McAdams’s right to due process under the Florida Constitution was violated when law enforcement officers failed to inform him that an attorney retained by his parents had arrived”

“There is not necessarily a single specific comment, question, or circumstance that converts an encounter from noncustodial to custodial. A situation can commence as a voluntary interaction with police, but slowly intensify and become more pressured, pointed, and accusatory until it evolves into custodial status.”

“[W]e hold that when a person is questioned in a location that is not open to the public, and an attorney retained on his or her behalf appears at the location, the Due Process Clause of the Florida Constitution requires that law enforcement notify the person with regard to the presence and purpose of the attorney, regardless of whether he or she is in custody.”

“In Miranda, the Supreme Court explained that: the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves. We have concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely. 384 U.S. at 467. Failure to provide the Miranda warnings prior to custodial interrogation generally requires exclusion from trial of any post-custody statements given. Missouri v. Seibert, 542 U.S. 600, 608 (2004); see also Deviney v. State, 112 So. 3d 57, 79 (Fla. 2013) (“[I]f a defendant’s statement resulted from a law enforcement officer’s illegal actions, that evidence is ‘fruit of the poisonous tree’ and the trial court should exclude it from trial.”).”

Florida Association of Criminal Defense Lawyers Summary

Here is the Florida Association of Criminal Defense Lawyers Summary of State v. McAdams, 41 Fla. L. Weekly S167a (Fla. 2016) – This matter is before the Court for review of the decision in McAdams v. State, 137 So. 3d 401 (Fla. 2d DCA 2014). In its decision, the district court ruled upon a question that it certified to be of great public importance. The Sheriff’s Office was notified that Lynda, the estranged wife of McAdams, and her boyfriend/coworker, Andrews, had been reported missing by concerned family members. A detective was questioning McAdams at the police department, when an attorney hired by his parents arrived. McAdams was first informed about the presence of the attorney only after he showed detectives where the victims were buried. When an individual is being questioned in a non-public area, and an attorney retained on his or her behalf arrives at the location, the Due Process Clause of the Florida Constitution requires that the police notify the individual of the attorney’s presence and purposes, regardless of custodial status. His right to due process under the Florida Constitution was violated when the officers failed to inform him that the attorney had arrived. Although custodial status is irrelevant to a person’s right under the Florida Constitution to know that an attorney retained on his or her behalf is present at the location where he or she is being questioned, the trial court and district court erred when they’’determined he was not in custody before he confessed to the homicides. A Miranda violation’’occurred when his confession was admitted during the trial. Although he was not in custody’’initially when he voluntarily accompanied law enforcement to the sheriff’s office, the evolving’’circumstances would lead a reasonable person to conclude that he or she was not at liberty to’’terminate the encounter and depart from the sheriff’s office. The erroneous admission of the’’highly detailed confession was not harmless error.

Sources:

State v McAdams http://www.floridasupremecourt.org/decisions/2016/sc14-788.pdf

Miranda v. Arizona, 384 U.S. 436 (1966).

FACDL

Vehicular Homicide in Florida

Vehicular Homicide Florida Lawyer

Vehicular Homicide Florida Law

Can a Speeding Vehicle that crashes and results in the Death of a Passenger Result in Vehicular Homicide Charges in Florida?

Vehicular Homicide charges can be filed after a death in a crash. However, speed alone will not be enough to be convicted. The law differentiates between negligent driving conduct, which exposes a wrongdoer to civil liability, and criminal driving conduct, which subjects a person to incarceration and other criminal sanctions. Case law strictly construes criminal driving statutes to prevent the net of the criminal law from sweeping so broadly that it snares all conduct, both criminal and negligent. The lenity principle codified at section 775.021(1)- (2), Florida Statutes (2014), requires criminal statutes to be strictly construed in the accused’s favor. See State v. Byars, 823 So. 2d 740, 742 (Fla. 2002); McGhee v. State, 847 So. 2d 498, 503 (Fla. 4th DCA 2003).

Part of the rationale for this approach is historical, deriving from common law crimes, where there was “the ancient requirement of a culpable state of mind.” Morissette v. United States, 342 U.S. 246, 250 (1952). To blur the line between mere negligence and criminal intent would, borrowing Justice Jackson’s words, “ease the prosecution’s path to conviction, [ ] strip the defendant of such benefit as he derived at common law from innocence of evil purpose, and [ ] circumscribe the freedom heretofore allowed juries.” Id. at 263.

Consistent with this view, the Florida Supreme Court has held “statutes criminalizing simple negligence to be unconstitutional.” State v. Smith, 638 So. 2d 509, 510 (Fla. 1994). “[U]nintentional conduct [ ] not generated by culpable negligence” will not support criminal liability. State v. Hamilton, 388 So. 2d 561, 563 (Fla. 1980); see also State v. Winters, 346 So. 2d 991, 994 (Fla. 1977). Case law applying the statute at issue here preserves the distinction between negligence and criminal conduct. “‘Vehicular homicide’ is the killing of a human being . . . caused by the operation of a motor vehicle by another in a reckless manner likely to cause death of, or great bodily harm to, another.” § 782.071, Fla. Stat. (2014). “The degree of culpability required for vehicular homicide is less than that necessary to prove manslaughter, but it is more than a mere failure to use ordinary care.” Stracar v. State, 126 So. 3d 379, 381 (Fla. 4th DCA 2013). “Vehicular homicide cannot be proven without also proving the elements of reckless driving, which requires proof of a ‘willful or wanton disregard for the safety of persons or property.’” Santisteban v. State, 72 So. 3d 187, 195 (Fla. 4th DCA 2011) (quoting § 316.192(1)(a), Fla. Stat.). “‘Willful’ means ‘intentional, knowing, and purposeful,’ and ‘wanton’ means with a ‘conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property.’” Lewek v. State, 702 So. 2d 527, 530-31 (Fla. 4th DCA 1997) (quoting Fla. Std. Jury Instr. (Crim.)).

“In determining whether a defendant was driving recklessly, the essential inquiry is whether the defendant knowingly drove the vehicle in such a manner and under such conditions as was likely to cause death or great bodily harm.” Santisteban, 72 So. 3d at 195. Although the defendant need not have foreseen the specific circumstances causing the death of the victim, the defendant should have reasonably foreseen that the same general type of harm might occur if he knowingly drove his vehicle under circumstances that would likely cause death or great bodily harm to another. Id. “Speed alone does not constitute reckless conduct unless the speed is shown to be grossly excessive.” Rubinger v. State, 98 So. 3d 659, 662 (Fla. 4th DCA 2012).

In cases affirming convictions for vehicular homicide or manslaughter by culpable negligence, it is excessive speed, in combination with other factors, that support the convictions. For example, in Copertino v. State, the defendant was driving 90.41 mph in a residential area in a Honda Civic packed with nine persons, “7 of whom were crammed into the back seat without seatbelts.” 726 So. 2d 330, 333 (Fla. 4th DCA 1999). We held that these facts evinced “the required reckless disregard for human life or the consequences on the safety of his passengers” contemplated by the manslaughter statute. Id.

Similarly, in Pozo v. State, the defendant was looking for a compact disc when driving anywhere from 67-90 mph in a residential neighborhood, while heading into a rain shower. 963 So. 2d 831, 833-34 (Fla. 4th DCA 2007). We held these facts to be sufficient to withstand a motion for judgment of acquittal. Id. at 834.

Recently, this Court affirmed the denial of the defendant’s motion for judgment of acquittal on a vehicular homicide charge. Opsincs v. State, 185 So. 3d 654 (Fla. 4th DCA 2016). “The State’s expert testified that the speed limit was 50 mph and that appellant’s speed was 69 mph at the time of impact. The roads were wet from the rain earlier in the day.” Id. at 657. Moreover, “[i]mmediately before the accident, appellant swerved through traffic, rapidly approached the traffic light while looking down and without braking, and ran a light that had been red for nine seconds before impact.” Id. And in Lewek v. State, the defendant was traveling 60 mph on a residential road with a 45 mph speed limit, in a car with unsafe equipment, and he ran a red light that had been red for five seconds. 702 So. 2d at 531. We held these facts sufficient to support two vehicular homicide convictions. Id.; see also Santisteban, 72 So. 3d at 196 (vehicular manslaughter conviction affirmed where driver of a gasoline tanker filled with 9,000 gallons of fuel went 56-60 mph on a curving highway ramp with an advisory speed of 35 mph, while weaving and cutting off other drivers).

In Stracar v. State, 126 So. 3d 379 (Fla. 4th DCA 2013). There, this Court reversed convictions for two counts of vehicular homicide after finding that the state failed to show that the defendant was driving in a reckless manner. Id. at 380. In denying Stracar’s motions for judgment of acquittal, the trial court detailed the facts of the case: The evidence at trial was that the Defendant [Stracar] was driving a vehicle which left the roadway, traveled along a sidewalk and a grassy area, crossed a divided roadway and hit a sign which launched the car over a median of the intersecting street and land[ed] on the victims [sic] car crushing the two occupants. Ms. Stracar traveled … for over 500 feet at approximately 40 miles per hour. She suffered no serious injuries and was found conscious in her vehicle at the scene. She had to be removed through the roof due to crash damage. Id. “There was no evidence of any braking or other attempt by appellant to avoid the crash, nor were there any curves in the roadway which would have contributed to appellant losing control of her vehicle.” Id. at 380-81. Moreover, at the time of the incident, “the weather conditions were optimal and the pavement was dry.” Id. at 381. Three hours after the accident, Stracar’s blood test results indicated a blood alcohol level of “less than .02%, THC from marijuana use at some undetermined time, oxycodone at a potentially therapeutic level, and Xanax within therapeutic levels.” Id. There was no evidence of unsafe or erratic driving prior to the accident. Id. This Court held that “appellant’s actions, while certainly negligent, did not rise to the level of recklessness sufficient to sustain the convictions for vehicular homicide.” Id. [W]hat was missing from the State’s proof in this case is evidence that the appellant, in an intentional, knowing and purposeful manner, was driving at the time of the incident in a manner demonstrating a conscious and intentional indifference to consequences and with knowledge that damage is likely to be done to persons or property. Id. at 382.

Florida Association of Criminal Defense Lawyers Summary

 

Here is the Florida Association of Criminal Defense Lawyers Summary of Damoah v. State, 41 Fla. L. Weekly D957b (Fla. 4 th DCA 2016) –  Damoah drove a car that crashed on a I-95 exit ramp. The crash caused the death of her  boyfriend. She was convicted of vehicular homicide and sentenced to 12 years in prison. On the  date of the incident, the exit ramp was technically a Department of Transportation construction  zone, even though no construction machinery or barriers were present. Construction had been  finished and the roadway repaved, but the Department had not yet given its final approval. As a  result, no speed limit signs were posted. The evidence was insufficient to support the conviction  for vehicular homicide. Excessive speed alone, without a showing of other reckless conduct, is  insufficient to support a vehicular homicide conviction. The evidence was also insufficient to  support a conviction for the lesser included offenses of reckless driving and culpable negligence.  The court remanded for the trial court to enter a judgment of acquittal and discharge her.

Source: http://www.4dca.org/opinions/April%202016/04-20-16/4D14-2412.op.pdf

Seizure | When has a Suspect or Defendant been Seized?

A seizure occurs when a reasonable person in the defendant’s position would not feel free to terminate the encounter.

Detention Arrest Seizure Florida

When has a Seizure of a Suspect or Defendant Occurred?

Recently I reviewed a case where the cop told a suspect that if he moved, he would be shot. He was not handcuffed or arrested at that point. Was this a seizure? YES The term “seizure” is an important concept in criminal defense. A person can be “seized” before he is actually restrained by physical force at the moment when, given all the circumstances, a reasonable person would believe he is not free to leave. Michigan v. Chesternut, 486 U.S. 567, 573 (1988). As the Supreme Court reaffirmed in Florida v. Bostick,, the test for determining whether a Terry stop has taken place “is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” 501 U.S. at 436.

Under Florida law the question of a seizure turns on “whether, taking into account all of the circumstances surrounding the encounter, the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.'” Bostick at 437. The court stressed in Chesternut that there is a need for a seizure test which “calls for consistent application from one police encounter to the next” and permits police “to determine in advance whether the conduct contemplated will implicate the Fourth Amendment.” Chesternut at 574.

“Law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions.” Florida v. Royer, 460 U.S. 491, 497; 523, n. 3 (REHNQUIST, J., dissenting).

Hulk Hogan – 12 Time World Champion Beaten Then WINS – In Court

Appeal Hulk Hogan

Hulk Hogan Appeal

March 2016 Update

Jury of 6, deliberated 6 Hours and so far has awarded a verdict of $115 Million.

The Florida court ruled that blocking the publication of the Hulk Hogan sex tape that was made in the Tampa Bay Area, “acts as an unconstitutional prior restraint under the First Amendment.” Does anyone want to watch the triumph of First Amendment Rights? We have posted the court’s complete opinion here:

Hulk Hogan Sex Tape Download Court Opinion  

Excerpts from the Court Opinion
The facts, according to the court were, “In 2006, [ Hulk Hogan ]  Mr. Bollea engaged in extramarital sexual relations with a woman in her home. Allegedly without Mr. Bollea’s consent or knowledge, the sexual encounter was videotaped. On or about October 4, 2012, Gawker Media posted a written report about the extramarital affair on its website, including excerpts of the videotaped sexual encounter (“Sex Tape”). [ Hulk Hogan ]  Mr. Bollea maintains that he never consented to the Sex Tape’s release or publication. Gawker Media maintains that it was not responsible for creating the Sex Tape and that it received a copy of the Sex Tape from an anonymous source for no compensation. “
“[ Hulk Hogan ] Mr. Bollea filed a motion for temporary injunction seeking to enjoin Gawker Media and others not participating in this appeal from publishing and otherwise distributing the video excerpts from the sexual encounter and complementary written report. Following a hearing, the circuit court issued an order on April 25, 2012, granting the motion for temporary injunction. “
The Court noted, “We are hard-pressed to believe that [ Hulk Hogan ]  Mr. Bollea truly desired the affair and Sex Tape to remain private or to otherwise be “swept under the rug.” For example, in March 2012, [ Hulk Hogan ]  Mr. Bollea called into TMZ Live, a celebrity and entertainment media outlet, and disclosed that he could not identify the woman in the Sex Tape because he had a number of “conquests” during the time it was filmed. Hulk Hogan – I Have NO IDEA Who My Sex Tape Partner Is, TMZ (March 7, 2012, 1:50 PM),”
“Furthermore, in October 2012, [ Hulk Hogan ]  Mr. Bollea appeared on The Howard Stern Show and professed that his good friend, Todd Alan Clem, known professionally as Bubba the Love Sponge, allowed [ Hulk Hogan ]  Mr. Bollea to have sex with Mr. Clem’s then-wife Heather Clem. Hulk Hogan – Yes, I Banged Bubba’s Wife, TMZ (October 9, 2012, 6:08 AM),”
“[ Hulk Hogan ] Mr. Bollea was certainly not shy about disclosing the explicit details of another affair he had while married to Linda Bollea in his autobiography. See My Life Outside the Ring at 187-88.”

http://www.tampabay.com/news/courts/civil/court-gawker-can-post-hulk-hogan-sex-tape/2161525

#‎wwe ‪#‎tna ‪#‎wrestling ‪#‎firstamendment ‪#‎freespeech #hulkhogan

Computer Hacker Guilty of Intrusions – Computer Forensics E Discovery

Defacing Websites

“The United States Attorney’s Office for the Northern District of California announced that [a man from] Pleasant Hill, California, pleaded guilty today in federal court in Oakland to hacking into government computers and then defacing government websites with material illegally obtained from those intrusions.

He pleaded guilty to each count of a five-count indictment charging computer crimes in violation of 18 U.S.C. 1030. In pleading guilty, [the man] who is known as one of the members of the self-titled hacking group called ‘The Deceptive Duo,’ admitted that he unlawfully accessed computer systems of various federal agencies in April 2002, including the Department of Defense’s Defense Logistic Information Service (DLIS), the Office of Health Affairs (OHA), and NASA’s Ames Research Center (ARC). In particular, [the man] admitted that he: Gained unauthorized accessed to DLIS computers in Battle Creek, Michigan, for the purpose of obtaining files that he later used to deface an OHA website hosted on computers in San Antonio, Texas. “

Compare Attorneys

According To The Florida Bar, Board Certified Criminal Trial Lawyers Are Specialists.

Compare Tampa criminal defense attorneys in the chart below:

Florida Attorney’s Name Is This Attorney Florida Bar Board Certified in Criminal Trial Law?
W. F. Casey Ebsary, Jr.Board Certified Criminal
Trial Lawyer
Board Certified Criminal Trial Lawyer
John Castro Compare Tampa Criminal Defense Attorneys
Christian Denmon Compare Tampa Criminal Defense Attorneys
Nicole Denmon Compare Tampa Criminal Defense Attorneys
Richard Escobar Compare Tampa Criminal Defense Attorneys
Frank Fernandez Compare Tampa Criminal Defense Attorneys
Darren Finebloom Compare Tampa Criminal Defense Attorneys
Robin Fuson Compare Tampa Criminal Defense Attorneys
Christina Anton Garcia Compare Tampa Criminal Defense Attorneys
Michael Celso Gonzalez Compare Tampa Criminal Defense Attorneys
David Haenel Compare Tampa Criminal Defense Attorneys
William Wooten Hanlon Compare Tampa Criminal Defense Attorneys
Stephen Higgins Compare Tampa Criminal Defense Attorneys
Marc Alleyne Joseph Compare Tampa Criminal Defense Attorneys
Jeff Keel Compare Tampa Criminal Defense Attorneys
Jason M. Mayberry Compare Tampa Criminal Defense Attorneys
Michael Misa Compare Tampa Criminal Defense Attorneys
Jeff Paulk Compare Tampa Criminal Defense Attorneys
Nicole Denmon Compare Tampa Criminal Defense Attorneys
Jason Sammis Compare Tampa Criminal Defense Attorneys
Leslie Sammis Compare Tampa Criminal Defense Attorneys
Jeff Thomas Compare Tampa Criminal Defense Attorneys
Majid Vasigh Compare Tampa Criminal Defense Attorneys
Elliott Wilcox Compare Tampa Criminal Defense Attorneys
William Wynne Compare Tampa Criminal Defense Attorneys
This information is current as of December 12, 2015. Please check here to see if any of the Criminal Defense Lawyers in this list have since become Board Certified Criminal Trial Lawyers.

Criminal Trial Lawyer Certification by the Numbers

 

  • 5 years of the Actual Practice of Law
  • 25 Criminal Trials
  • 4 Lawyers Peer review
  • 2 Judges Peer review
  • 45 Hours Additional Training
  • 50 Question Examination followed by
  • 5 Essay Questions on Exam
  • 12 Members Criminal Law Certification Committee review Applicants
  • 1 Criminal Trial Court Memorandum
  • 30 Percent of Legal Practice Involves Criminal Trials

Topics are covered on the Criminal Law Examination Include:

 

  • Rules of criminal procedure;
  • Rules of evidence;
  • Grand jury, immunity, and investigations;
  • Pretrial motion practice and discovery;
  • Statutes which define crimes;
  • Sentencing ;
  • Statutes of limitations;
  • Probation violations;
  • Trial situations;
  • Postconviction,
  • Federal habeas,
  • Appellate practice;
  • Ethics;
  • Search and seizure;
  • Fifth Amendment issues;
  • Sixth Amendment issues;
  • Jury selection;
  • Examination and confrontation of witnesses;
  • Attorney-Client privilege.

“While all lawyers are allowed to advertise, only certified attorneys are allowed to identify themselves as “Florida Bar Board Certified” or as a “specialist.” Certification is the highest level of recognition by The Florida Bar of the competency and experience of attorneys in the areas of law approved for certification by the Supreme Court of Florida.”

Compare Tampa Criminal Defense Attorneys Sources:

 

http://www.floridabar.org/DIVCOM/PI/CertSect.nsf/CertificationPamphlets/Criminal+Trial
Rule Reg Fla Bar 6-8.3 (Criminal Trial Law: Minimum Standards)
Notes:
The FTC and the National Advertising Division of the Council of Better Business Bureaus, Inc. (NAD), govern the laws of comparative advertising in the United States including the treatment of comparative advertising claims. FTC stated that comparative advertising could benefit consumers and encourages comparative advertising, provided that the comparisons are “clearly identified, truthful, and non-deceptive”

Sources:  J. E. Villafranco, “IP Litigator”, Woltens Kluwer Law & Business, Aspen Publishers, Vol. 16, No. 1, 2010;

Ratings and Reviews

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Criminal Defense Attorney Tampa Review

"Casey's strong arguments during the hearing made all the difference ..."


Written by: Google+ User


W.F. ''Casey'' Ebsary, Jr.


5.0 / 5 stars