Florida Restoration of Civil Rights

Restoration of Civil Rights Tampa Florida Federal Court Criminal Defense Attorney / Lawyer

Florida Restoration of Civil Rights Criminal Defense Attorney / Expert Trial Lawyer

In a blockbuster ruling, a United States District Judge in Florida has ordered the Governor and the State of Florida to provide a meaningful path to restoration of Civil Rights. “Florida’s rate of denying voting rights is more than 300 percent higher than the other 49 states” said the St. Petersburg Times . According to one researcher,  “In Crist’s [previous governor’s] final year as governor, he oversaw the restoration of rights for 27,456 felons, according to the Brennan Center. In Scott’s first year, he restored voting rights for 52 felons. If this were the stock market, that would translate to a drop of 99.82 percent.”

 

Update April 4, 2018; The Governor has appealed the ruling in an effort to further delay.

Here is a Sample Clemency Application like the ones being delayed in Florida.

Excerpts from the Opinion of the Florida Restoration of Civil Rights Court

 

“In its prior order, this Court found the fuzzy time periods that the Board has invoked in reviewing or re-reviewing former felons’ applications unconstitutional . . . .”

 

“Florida’s current scheme inverts that important, democratic mechanism. It cannot do so anymore.”

 

“the Board “cannot . . . kick the can down the road for so long that they violate former felons’ rights to free association and free expression.”

 

“Removing any scheme for vote-restoration is the ultimate arbitrary act. Having lost their ability to re-enfranchise citizens at a snail’s pace guided by absolutely nothing, Defendants’ threats to arbitrarily and completely end the vote-restoration scheme is tantamount to picking up one’s marbles and going home.”

 

Opinion of the Florida Restoration of Civil Rights Court

 

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

 

Case No. 4:17cv128-MW/CAS

 

 

JAMES MICHAEL HAND, et al.,

 

Plaintiffs,

 

 

RICK SCOTT, in his official

capacity as Governor of

Florida and member of the

State of Florida’s Executive

Clemency Board, et al.,

 

Defendants.

__________________________/

 

ORDER DIRECTING ENTRY OF JUDGMENT

 

This Court is not the Vote-Restoration Czar. It does not pick and choose who may receive the right to vote and who may not. Nor does it write the rules and regulations for the Executive Clemency Board. Instead, this Court possesses the well-known and unsurprising “province and duty . . . to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). And this Court possesses the unremarkable discretion to find a means for the Board to comply with the law.

 

In its Order on Cross-Motions for Summary Judgment, this Court applied longstanding precedent from the Supreme Court and the Eleventh Circuit that invalidated unfettered-discretion schemes to a novel context; namely, that of felon re-enfranchisement. See generally ECF No. 144. And, as it has done in the past, this Court invited the parties to recommend appropriate remedial action. Defendants essentially repackage the current scheme into proposed remedies permitting the Governor and Board to do, as the Governor described, “whatever we want” in denying voting rights to hundreds of thousands of their constituents. ECF No. 144, at 2 (citation omitted). This will not do. And Defendants’ proposed remedy to abandon the whole vote-restoration scheme does not pass constitutional muster.

 

If binding precedent spanning decades is to guide this Court—as it must—then an injunction must ensue to prevent further infringement. Florida’s vote-restoration scheme can no longer violate Plaintiffs’ fundamental First Amendment rights. Accordingly, as even Defendants acknowledge, “this Court may direct the Board ‘to find a means of bringing the [State’s] scheme into compliance with federal law.’” ECF No. 149, at 14 (quoting Strahan v. Coxe, 127 F.3d 155, 170 (1st Cir. 1997)).

 

I

 

Plaintiffs would have this Court restore the right to vote to any former felon who has completed her whole sentence and a uniformly imposed five- or seven-year waiting period. ECF No. 147, at 2–3. But such relief is beyond the scope of this Court’s authority. The people of Florida—either through ballot initiatives or through their legislative acts—may cure any perceived policy weaknesses with Florida’s restoration scheme.

 

1 A state constitutional amendment proposing changes to Florida’s felony disenfranchisement and re-enfranchisement process will appear on the ballot in November 2018.

 

2 “The world ain’t all sunshine and rainbows.” ROCKY BALBOA (Metro-Goldwyn-Meyer, et al. 2006). The same goes for Florida’s current vote-restoration scheme. See generally ECF No. 144.

 

II

 

While Defendants oppose any relief and claim the current scheme is all sunshine and rainbows, they agree with Plaintiffs that this Court may provide declaratory relief.2 See, e.g., ECF No. 157, Ex. A (outlining Plaintiffs’ proposed declaratory relief), and ECF No. 158, at 15 (“Here, a declaratory judgment would provide an adequate remedy for the specific concerns identified by the Court.”). And this Court grants declaratory relief consistent with its prior order.

 

III

 

The parties disagree on the propriety and extent of injunctive relief, which is the primary purpose of this Order. This Court finds injunctive relief is appropriate to ensure that Florida’s vote-restoration scheme is no longer based on unfettered discretion.

 

 

A

 

To succeed on a permanent injunction, Plaintiffs “must satisfy a four-factor test.” Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 156 (2010) (internal quotation marks omitted). Plaintiffs must show (1) “irreparable injury”; (2) that “remedies available at law, such as monetary damages, are inadequate to compensate for that injury”; (3) that, “considering the balance of hardships between the plaintiff[s] and defendant[s], a remedy in equity is warranted”; and (4) that the “public interest would not be disserved by a permanent injunction.” Id. at 156–57 (internal quotation marks omitted).

 

Plaintiffs have satisfied the elements for a permanent injunction. First, Plaintiffs have suffered an irreparable injury.3 Their right to free association and right to free expression were denied under a fatally flawed scheme of unfettered discretion that was contaminated by the risk of viewpoint discrimination. The Board will revisit some of their decisions at some unknown future date—if at all—based on nebulous criteria, such as the Governor’s comfort level. See, e.g., ECF No. 102, at 41. “[I]n the unique context of first amendment challenges upon the facial validity of licensing statutes, it is the very existence of official discretion that gives rise to a threat of injury sufficient to warrant an injunction.” Miami Herald Publ’g Co. v. City of Hallandale, 734

 

One exception is Plaintiff Yraida Leonides Guanipa, who is not yet eligible for restoration. ECF No. 102, at 11–12. On Plaintiffs’ facial challenge, however, the absence of Ms. Guanipa does not impact the contours of this Court’s remedy or, for that matter, this Court’s Order. F.2d 666, 674 n.4 (11th Cir. 1984). Plaintiffs, then, have established “an imminent likelihood” that their First Amendment rights to free association and free expression “will be chilled or prevented altogether.” Siegel v. LePore, 234 F.3d 1163, 1178 (11th Cir. 2000); see also Elrod v. Burns, 427 U.S. 347, 373 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”).

 

Second, because Plaintiffs suffered an irreparable harm, remedies at law are inadequate. See Barrett v. Walker Cty. Sch. Dist., 872 F.3d 1209, 1229 (11th Cir. 2017) (citing Deerfield Med. Ctr. v. City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. Unit B Nov. 1981) (“An injury is ‘irreparable’ only if it cannot be undone through monetary remedies.”)).

 

Decisions rendered by Unit B of the former Fifth Circuit constitute binding precedent in the Eleventh Circuit. Stein v. Reynolds Secs., Inc., 667 F.2d 33, 34 (11th Cir. 1982).

 

Third, the balance of the hardships favors Plaintiffs. Defendants need only redraft rules that align the vote-restoration scheme within the boundaries of the law by cabining official discretion and providing meaningful time constraints for the Board’s decision-making. Plaintiffs, meanwhile, are deprived of a voice in directly choosing their elected leaders. They are also deprived of associating with the political party, if any, of their choice. Both are essential First Amendment rights, as this Court described in its prior order. ECF No. 144, at 9–17. Balancing the hardships between protecting First

Amendment rights and having a government board that meets four times a year redraft their rules to conform with the United States Constitution weighs unsurprisingly in favor of the former.

 

Finally, Plaintiffs easily satisfy the fourth factor. “[T]he public interest is always served in promoting First Amendment values.” Suntrust Bank v. Houghton Mifflin Co., 268 F.3d 1257, 1276 (11th Cir. 2001). There are few greater interests than free association and free expression to choose public officials to lead, to represent all people in their jurisdictions, and to advance policy for the common good. These interests are why Americans launched a revolution against perceived unfettered discretion in the hands of one high-ranking official, King George III.

 

B

 

The question turns to the nature and extent of a permanent injunction. “Injunctive relief against a state agency or official must be no broader than necessary to remedy the constitutional violation.”

Knop v. Johnson, 977 F.2d 996, 1008 (6th Cir. 1992) (quoting Toussaint v. McCarthy, 801 F.2d 1080, 1086 (9th Cir. 1986)). This Court does not re-enfranchise otherwise eligible citizens. This Court does not operate as a legislature. This Court is not a fifth member of the Board, drafting specific rules and regulations for it, unless it is forced to do so.

 

5 This Court recognizes that in other contexts, as Plaintiffs point out, courts have actively participated in crafting specific remedies. See ECF No. 157, at 3–7 (listing redistricting, voting-rights, and school-desegregation cases in which courts have crafted specific remedies when a legislature or other government body abandons its court-ordered duties).

 

6 Plaintiffs challenge an executive clemency scheme that, by rule, has “unfettered discretion” to deny or grant critical First Amendment rights. Fla. R. Exec. Clemency 4. But, as this Court emphasized in its prior order, a scheme’s placement under an executive-clemency structure does not exempt it from constitutional compliance. ECF No. 144, at 25–27 (discussing the limitations of executive clemency in relation to federal constitutional protections); see also Hoffa v. Saxbe, 378 F. Supp. 1221, 1231 (D.D.C. 1974) (“And the [pardon] power is most importantly limited, as are all powers conferred by the Constitution, by the Bill of Rights which expressly reserved to the ‘individual’ certain fundamental rights.”); see also id. at 1233 (observing that the President’s pardon power “does not exist in a vacuum but rather as part of our total constitutional system”).

 

While this Court again recognizes the novelty of Plaintiffs’ claims, this Court’s permanent injunction does not surface out of some swamp. Federal courts have regularly held—including other circuits and the Supreme Court—that cabining state officials’ discretion so they may not violate First Amendment rights is an appropriate task for federal courts.  See, e.g. City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 757 (1988) (listing a “long line of precedent” outlining the Supreme Court’s discomfort with government officials’ unfettered discretion over First Amendment rights); Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 133 (1992) (“The First Amendment prohibits the vesting of such unbridled discretion in a government official.”); Gannett Satellite Info. Network, Inc. v. Berger, 894 F.2d 61, 69 (3d Cir. 1990) (invalidating scheme that “failed to establish any parameters for the exercise of its authority to regulate a broad category of speech”). The incongruence of officials’ unfettered discretion with the First Amendment extends to executive-clemency schemes implicating constitutional rights.

 

The Eleventh Circuit has previously addressed other unconstitutional unfettered-discretion schemes, which guides this Court on the scope and nature of appropriate injunctive relief. In Sentinel Communications Co. v. Watts, the Eleventh Circuit struck down a scheme that gave a Florida official “standardless, unfettered discretion” in distributing newspaper racks at interstate rest areas. 936 F.2d 1189, 1197 (11th Cir. 1991). “Unaided (or unhindered) by any regulations, guidelines, procedures, ordinances, or standards,” the government official had “no grounds for granting or denying permits” and was “free to make his decisions on any basis that he deem[ed] appropriate.” Id. at 1198. Newspapers seeking to exercise their First Amendment rights were “subject to the completely standardless and unfettered discretion of one bureaucrat working . . . in Tallahassee.” Id. at 1199. To remedy that official’s infinite discretion, the court called for “[s]ome neutral criteria” that would “insure” that the government official’s decision “is not based on the content or viewpoint of the speech being considered.” Id. at 1199–1200 (quoting Lakewood, 486 U.S. at 760).

 

Similarly, the Eleventh Circuit determined en banc that an Atlanta government agency’s unfettered discretion over granting or denying permits for newsrack distribution at Hartsfield Atlanta International Airport violated the First Amendment. Atlanta Journal & Constitution v. City of Atlanta, 322 F.3d 1298, 1310–11 (11th Cir. 2003) (en banc). Particularly concerning was the risk that the government official would engage in impermissible viewpoint discrimination under the guise of a neutral business-related reason—a sort of “mask for censorship.” Id. at 1311 n.13. To rectify that risk, “[s]tructural and procedural safeguards can reduce the possibility that an official will use her power to corrupt the protections of the First Amendment.” Id. at 1311. Therefore, the government official “must be constrained in some form in her exercise of discretion” by “clear standards.” Id.; see also id. at 1312 (holding that official discretion “must be restrained through procedures or instructions designed to reduce or eliminate the possibility of viewpoint discrimination”).

 

So too here. There is no doubt a risk that the Board’s officials may engage in viewpoint discrimination through seemingly neutral rationales—such as traffic citations or an applicant’s perceived lack of remorse—that serve as impermissible “mask[s] for censorship.”  Id. at 1311 n.13. This sort of unfettered discretion cannot exist under the Federal Constitution—or any well-functioning democracy. Therefore, the Board must promulgate specific standards and neutral criteria to direct its decision-making. Sentinel Commc’ns, 936 F.2d at 1199 n.9 (“[T]he doctrine forbidding unbridled discretion requires reasonable and definite standards.”); see also id. at 1207 (explaining that Florida “simply cannot continue to take an utterly discretionary, ‘seat of the pants’ regulatory approach towards” First Amendment activity and that written guidelines with “specific criteria” should guide government discretion).

 

These standards and criteria cannot be merely advisory, a Potemkin village for anyone closely reviewing the scheme. See ECF No. 144, at 4–5 (outlining the existing non-binding criteria the Board may or may not consider). “Implicit limits on a licensing official’s discretion must be made explicit, ‘by textual incorporation, binding judicial or administrative construction, or well-established practice.’” Sentinel Commc’ns, 936 F.2d at 1199 n.9 (quoting Lakewood, 486 U.S. at 770). In other words, the Board cannot rely on whims, passing emotions, or perceptions. Establishing safeguards against viewpoint discrimination should be the Board’s paramount goal following this Order. In the future, concrete criteria—not “feel[ing] comfortable,” ECF No. 144, at 30—must direct the Board. And its rules must spell these criteria out with precision. See Atlanta Journal, 322 F.3d at 1312 (retaining portion of district court’s permanent injunction “that prohibited the administration of any plan that did not explicitly constrain official discretion”).

 

Defendants balk at injunctive relief partly because of a “presumption of regularity.” ECF No. 149, at 8–9. This argument boils down to “trust us—we got this.” But “this is the very presumption that the doctrine forbidding unbridled discretion disallows.” Lakewood, 486 U.S. at 770. The Eleventh Circuit is again instructive. “[I]t is not enough to presume that officials will act in good faith and adhere to standards absent from a statute or scheme’s face.” Sentinel Commc’ns, 936 F.2d at 1199 n.9. While Defendants invoke the presumption of regularity to avoid a permanent injunction, such a remedy is necessary to cabin Defendants’ unfettered discretion—and the broad discretion they claim to have in crafting a remedy. And, as noted before, Defendants concede this point. “[T]his Court may direct the Board ‘to find a means of bringing the [State’s] scheme into compliance with federal law.’” ECF No. 149, at 14 (quoting Strahan, 127 F.3d at 170).

 

Generally, when a court strikes down unconstitutional grants of unfettered government discretion, it does so because “the problem is not potential abuses but the very existence of broad, censorial power.” Int’l Soc’y for Krishna Consciousness v. Eaves, 601 F.2d 809, 823 (5th Cir. 1979).7 Here, there is little doubt that the Board possesses broad, censorial power to prohibit hundreds of thousands of otherwise eligible voters from freely associating with  7 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981. political parties or freely expressing themselves through voting. And there are problems of potential abuse—especially when members of the Board, who are elected on a statewide basis and who may be running for re-election or another office, have a personal stake in shaping the electorate to their perceived benefit. “Speech is an essential mechanism of democracy, for it is the means to hold officials accountable to the people.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 339 (2010). Florida’s current scheme inverts that important, democratic mechanism. It cannot do so anymore.

 

In short, the Board is left to the “task of devising a Constitutionally sound program,” Lewis v. Casey, 518 U.S. 343, 362 (1996) (internal quotation marks omitted), but it must do so within constraints that the Eleventh Circuit has identified; namely, specific, neutral criteria that excise the risk—and, of course, the actual practice of—any impermissible discrimination, such as race, gender, religion, or viewpoint. While this Court does not order any particular vote-restoration scheme nor any specific criteria the Board must consider, Florida’s corrected scheme cannot be byzantine or burdensome.

 

C

 

The Board’s new criteria would be toothless without meaningful time constraints. In its prior order, this Court found the fuzzy time periods that the Board has invoked in reviewing or re-reviewing former felons’ applications unconstitutional. ECF No. 144, at 27–31. Like this Court’s conclusions about the Board’s lack of criteria to cabin its decision-making, this Court’s conclusions over the absence of meaningful time constraints do not arrive out of thin air. The Supreme Court and the Eleventh Circuit have repeatedly struck down schemes that lack meaningful time constraints as contrary to the First Amendment.  See, e.g., id. at 28–29 (citing Supreme Court precedent),

and id. At 29 n.16 (citing Eleventh Circuit precedent).

 

Binding precedent again instructs the scope and nature of remedies. Recently, the Eleventh Circuit upheld a district court’s permanent injunction over a school board’s policy that essentially failed to constrain a high-ranking official from granting or denying speaking slots to individuals at school-board meetings. Barrett, 872 F.3d at 1229. “[U]nbridled discretion can . . . exist when a permitting official has no time limit within which she must make a decision on a permit application.” Id. at 1222. The challenged policy “pose[d] enough of a risk that speech w[ould] be chilled or effectively censored on the basis of content or viewpoint” because one portion of the policy “lack[ed] any time limit with which [the government official] must comply.” Id. at 1229.

 

The same risks exist here. As this Court emphasized in its prior order, the Board “cannot . . . kick the can down the road for so long that they violate former felons’ rights to free association and free expression.” ECF No. 144, at 29. It is no excuse that the Board lacks resources to abide by the Federal Constitution’s requirements. If the Board pursues policies that sever hundreds of thousands of Floridians from the franchise and, at the appropriate time, hundreds of thousands of Floridians want their voting rights back, the Board must shoulder the burden of its policies’ consequences. They cannot continue to shrug off restoration applications indefinitely.

 

Accordingly, the Board must promulgate time constraints that are meaningful, specific, and expeditious. While this Court leaves the specifics of timing to Defendants to outline and justify, the time limits cannot cloak impermissible clock-control. See Barrett, 872 F.3d at 1214 (“Control the clock and control the game.”). Absent extraordinary circumstances, this Court cannot conceive of any reason why an applicant at any point must wait more than one election cycle after she becomes eligible to apply for restoration.

 

D

 

Defendants cannot end the vote-restoration scheme entirely. See  ECF No. 149, at 11 (suggesting the Board could adopt a policy “declining to restore any convicted felon’s ability to vote, either permanently or as an interim measure . . .”). This Court concluded that Florida’s arbitrary slow drip of vote-restorations violates the U.S. Constitution—but that does not mean Defendants can shut off the spigot of voting rights with a wrench, yank it from the plumbing, and throw the whole apparatus into the Gulf of Mexico. In its prior order, this Court reasoned that a state cannot re-enfranchise its citizens arbitrarily because it cannot disenfranchise citizens arbitrarily. See ECF No. 144, at 6–7 (citing Shepherd v. Trevino, 575 F.2d 1110, 1114 (5th Cir. 1978), and Owens v. Barnes, 711 F.2d 25, 27 (3dCir.1983)); see also id. at 7 n.4 (citing Williams v. Taylor, 677 F.2d 510 (5th Cir. 1982)).

 

Removing any scheme for vote-restoration is the ultimate arbitrary act. Having lost their ability to re-enfranchise citizens at a snail’s pace guided by absolutely nothing, Defendants’ threats to arbitrarily and completely end the vote-restoration scheme is tantamount to picking up one’s marbles and going home.

 

It is true that “Florida’s discretion to deny the vote to convicted felons is fixed by the text” of Section Two of the Fourteenth Amendment. Johnson v. Bush, 405 F.3d 1214, 1228 (11th Cir. 2005) (emphasis added). States have “a realm of discretion in the . . . reenfranchisement of felons which the states do not possess with respect to limiting the franchise of other citizens.” Shepherd, 575 F.2d at 1114 (emphasis added). In exercising that discretion, Florida pursues an interest “in limiting the franchise to responsible voters.” Id. at 1115.

 

In so limiting the franchise, Florida has the ability under existing case law to exercise some—but not unlimited—discretion in re-enfranchisement of former felons.

Id. at 1114.

 

Florida exercises this discretion by defining what a felony is. It culls from the body politic hundreds of thousands of men and women who have been convicted of those felonies. And it strips voting rights from individuals serving their sentences, their probations, their paroles, and

from those men and women patiently waiting the duration of a uniform five- or seven-year period.

But, as this Court previously stated, “no realm is without boundary.” ECF No. 144, at 35. That conclusion unremarkably presupposed the existence of a realm for the state to exercise discretion. Removing all discretion by jettisoning the vote-restoration scheme in its entirety is easily outside the “realm of discretion” because such a plan tosses out the “realm.” In short, Shepherd presumes the existence of a realm for state officials to exercise limited discretion that the absence of a vote-restoration scheme would contravene. Once Florida provides for a realm of discretion through a vote-restoration scheme, it cannot simply discard that scheme after a federal court finds constitutional violations with its current rules.

 

Moreover, the Supreme Court’s “prior decisions have voiced particular concern with laws that foreclose an entire medium of expression.”

City of Ladue v. Gilleo

, 512 U.S. 43, 55 (1994);

see also id.

(listing Supreme Court precedent invalidating total bans on First Amendment activity). For example, a Ladue, Missouri ordinance that was a “virtually complete ban” on all residential signs “almost completely foreclosed a venerable means of communication.”

Id.

at 49, 54. The Court observed that bans on whole swaths of First Amendment rights “may be completely free of content or viewpoint discrimination” but “the danger [such prohibitions] pose to the freedom of speech is readily apparent—by

eliminating a common means of speaking, such measures can suppress too much speech.”

Id.

at 55. Similarly, the Supreme Court narrowly construed a municipality’s law prohibiting some picketing but acknowledged that problems would arise if the law banned

all

picketing.

Frisby v. Schultz

, 487 U.S. 474, 486 (1988) (“The type of focused picketing prohibited by the [municipality’s] ordinance is fundamentally different from more generally directed means of communication that may not be completely banned in residential areas.”).

Analogous concerns would arise if the Board abandoned its vote-restoration scheme entirely. Once a federal court acknowledges former felons’ First Amendment rights to association and expression upon which a restoration scheme of unfettered discretion unconstitutionally infringes, the Board cannot issue a blanket ban on all activity without some pathway out of the prohibition. And while a “particularly punitive state might even disenfranchise convicted felons permanently[,] . . . once a state provides for restoration, its process cannot offend the Constitution.” ECF No. 144, at 9.8 Shutting off the slow drip of vote-restorations in this context would offend the Constitution.

8 Under the Supreme Court’s interpretation of the Fourteenth Amendment’s Section Two, states have an “affirmative sanction” in disenfranchising men and women convicted of felonies. Richardson v. Ramirez, 418 U.S. 24, 54 (1974). This Court is troubled by some courts’ “fetishistic” reading of this precedent that strips the constitutional authorization of its context and relies solely on a textual reading. See Jessie Allen, Documentary Disenfranchisement, 86 TUL. L. REV. 389, 448–59 (2011).

That Florida cannot jettison its whole vote-restoration scheme is also supported as a matter of state law—though, of course, in so analyzing this Court treads carefully through longstanding principles of federalism. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984) (“[I]t is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law.”).

Defendants should heed the existence of a restoration process enshrined in Florida’s constitution and in state laws. “No person convicted of a felony . . . shall be qualified to vote or hold office until restoration of civil rights.” FLA. CONST. art. VI, § 4(a) (emphasis added). “[T]he civil rights of the person convicted shall be suspended in Florida until such rights are restored . . .” FLA. STAT. ANN. § 944.292(1) (emphasis added). Defendants acknowledge as much. ECF No. 149, at 7 (“[A] convicted felon loses the right to vote until civil rights are restored.”) (emphasis added). They helpfully point out that Florida has coupled disenfranchisement with a form of vote-restoration for the past 150 years. Id. at 18 (explaining how the 1868, 1885, and 1968 state constitutions contained restoration language).

References in Florida’s constitution and state laws to restoration are not window dressing. It is a “cardinal rule of statutory interpretation that no provision should be construed to be entirely redundant.”

Kungys v. United States

, 485 U.S. 759, 778 (1988) (Scalia, J.) (plurality opinion);

see also

Vreeland v. Ferrer

, 71 So. 3d 70, 80 (Fla. 2011) (“[I]t is the duty of a court ‘to give effect, if possible, to every clause and word of a statute.’”) (quoting

United States v. Menasche

, 348 U.S. 528, 538–39 (1955)). It is clear, then, that Florida law assumes a vote-restoration scheme, at minimum, exists.

This Court does not enter an injunction pursuant to Florida law. Pennhurst, 465 U.S. at 106 (forbidding federal courts from ordering state officials to comply with state law). “Under Pennhurst . . . the determinative question is not the relief ordered, but whether the relief was ordered pursuant to state or federal law.” Brown v. Ga. Dep’t of Revenue, 881 F.2d 1018, 1023 (11th Cir. 1989). A federal court can, however, consider a “state law issue that is preliminary to a federal claim against a state official.” Fleet Bank, Nat’l Ass’n v. Burke, 160 F.3d 883, 891 n.6 (2d Cir. 1998).

This Court reads the cited provisions of the Florida Constitution and state law as preliminary to

Shepherd

’s direction that states have a “realm of discretion” in re-enfranchising their citizens.

Shepherd

, 575 F.2d at 1114. In other words, the cited provisions codify the constitutional requirements that appellate courts have identified; namely, the existence of a state’s realm of discretion in re-enfranchisement.

Johnson v. Bush

, 405 F.3d at 1228;

Shepherd

, 575 F.2d at 1114. Abandoning that discretion by ceasing all vote-

restoration runs afoul of these cases.

restoration runs afoul of these cases.

restoration runs afoul of these cases.

9 This is not to say that a scheme of automatic re-enfranchisement for certain classes of convicted felons would run afoul of Shepherd’s grant of a “realm of discretion” to the state. Shepherd, 575 F.2d at 1114. It would be the state, after all, that would choose to grant the right to vote to some former felons but not all. Discretion would remain in such a scheme.

IV

 

These remedies are prophylactic. They construct guardrails so state officials’ discretion remains on the road of constitutionality. This Court recognizes that “pardon and commutation decisions have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review.” Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 464 (1981) (emphasis added). At the same time, clear standards “provide the guideposts that check” the government official granting or denying First Amendment rights and prevent “post hoc rationalizations” clouded by “shifting or illegitimate criteria.” Lakewood, 486 U.S. at 758. Simply put, the Board must create some preventative rules, criteria, and standards without any “shifting or illegitimate criteria.” Id. Since clemency decisions are “rarely, if ever, appropriate subjects for judicial review,” Dumschat, 452 U.S. at 464, prophylactic protections must be robust and meaningful.

 

 

IT IS ORDERED:

 

 

  1. For the reasons set forth in its prior order, ECF No. 144, dated February 1, 2018, and this Order, the Clerk shall enter judgment stating:

 

  1. “FLA. CONST. art. VI, § 4(a), FLA. CONST. art. IV § 8, FLA. STAT. § 97.041(2)(b), FLA. STAT. § 944.292(1), and the Florida Rules of Executive Clemency, violate the First and Fourteenth Amendments of the United States Constitution to the extent these provisions provide the Executive Clemency Board unfettered discretion to grant or deny restoration of voting rights to persons with felony convictions, and violate the First Amendment to the extent these provisions lack any time constraints for processing and making final decisions. This DECLARATORY JUDGMENT applies only to the right to vote, not to any other civil right. It does not apply to any other type of executive clemency in Florida.”

 

 

 

  1. “Defendants are PERMANENTLY ENJOINED from enforcing the current unconstitutional vote-restoration scheme. Defendants are also PERMANENTLY ENJOINED from ending all vote-restoration processes. On or before April 26, 2018, Defendants shall promulgate specific and neutral criteria to direct vote-restoration decisions in accordance with this Order. On or before April 26, 2018, Defendants shall also promulgate meaningful, specific, and expeditious time constraints in accordance with this Order. Defendants shall file with this Court its modified rules on or before April 26, 2018.”

 

 

 

  1. Nothing in this Order Directing Entry of Judgment granting declaratory and injunctive relief against Defendants shall be construed to preclude or limit future modification or elimination of the pre-restoration waiting period(s) by any lawful means, such as constitutional amendment, legislation, or Board rulemaking.
  2. The Board shall reconsider any applicants who were denied a meaningful hearing during the pendency of this Order’s writing, i.e., between February 1, 2018 and today, under its new rules.
  3. This Court shall retain jurisdiction to monitor Defendants’ compliance and to entertain any motion for attorneys’ fees and costs.

SO ORDERED on March 27, 2018.

 

s/Mark E. Walker  ____

United States District Judge

 

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Hillsborough County Florida Traffic Ticket Quotas Award Arrest

Hillsborough County Florida Traffic Ticket Quotas Arrest Award

The short answer is “No.” Traffic Ticket Quotas are illegal. The Florida Statute specifically forbids these contests. Florida Statute 316.640(8)(b) (2017) states: “A traffic enforcement agency may not establish a traffic citation quota.” The issue turns on the question: “What is a quota?” A quota is a quantity, in this case the number of citations issued. There are several agencies that are competing for prizes in Driving Under the Influence contests where vehicles, body-cameras, and other law enforcement tools can be won, if certain goals are met. This may be a contest, but law enforcement consistently takes the position that these do not violate the law.

 

The Florida traffic law was passed in 2015. the law is called the “Waldo Bill.” The new provision is named after Waldo, Florida, a notorious speed trap between Gainesville and Jacksonville. “As of October 1, 2014 the town’s police force has been disbanded.” says the Wikimachine. When caught, here is what the Florida cops had to say about the latest  traffic ticket shenanigans:


“We will immediately designate that quotas are prohibited by Florida law . . . .”


 

More ticket quota evidence includes offering days off  to law enforcement officers that met  their goals. Apparently, a supervisor wanted 2 tickets per hour and “1.3 tickets per hour was not good enough.” We have been covering arrest quotas and contests by cops in Florida for years. We have uncovered the rules of the contest and posted them here. Up until this week’s breaking news from the Saint Petersburg Times, we thought the gamifying of law enforcement was limited to DUI arrests. Now we know that is not so. Police have targets that one, soon-to-be former, Florida Highway Patrol Trooper was encouraging- –  hourly targets and giving prime weekend time off to those who met the illegal goals of the department. So, unless you have a Stay Out of Jail Card, watch out for gamesmanship by law enforcement.


“1.3 tickets per hour was not good enough.”


I have spent quite a bit of time in court defending people charged with a variety of traffic offenses. One of the most offensive things I have seen was this luxury SUV that was a trophy in a contest to see how many people could be arrested for driving while impaired, among other things.

This vehicle was parked right outside of the Hillsborough County Courthouse in Tampa Florida. Apparently, the vehicle is equipped with a sophisticated video system and a mobile breath testing machine. Florida law prohibits quotas for issuing traffic tickets. The cops were just caught.

These kinds of incentives given to law enforcement can encourage otherwise decent and law-abiding police officers to violate the law. Maybe they need a weekend off. Maybe they think winning a car for their agency will look good in their personnel file. Maybe they think the prosecutor will reduce the charge from DUI to some lesser charge. Nevertheless, these awards are given for the issuance of citations or the arrests of citizens. No one seems to care to remove these entries on their permanent records when they are ultimately cleared of the charges or negotiate a plea to a lesser charge. Many first-time DUI offenders are never even convicted of DUI.

Since 2009, I have been following this area closely. The stories that are linked below cover in detail the policies and procedures that have been used by police to take advantage of programs to acquire more assets for law enforcement.

The Hillsborough County Sheriff won an SUV. The vehicle is marked with a championship logo and other markings establishing that the sheriff had won a contest to enforce DUI laws. DUI prosecutions are begun with a traffic ticket and issues about whether or not these are quotas should be asked.  The cop who wrote a memo documenting the quota has resigned. Fox has reported, “A top official with the Florida Highway Patrol who told troopers they aren’t writing enough speeding tickets is resigning from his job.” Here is some video on the illegal  ticket game.

 

Video | Illegal Ticket Quotas in Florida


 


Traffic Tickets, Arrest Contests, and Quotas – History in Florida

Arrest Contest, Traffic Ticket, and Quotas - History in Florida

Arrest Contest and Traffic Ticket Quotas – History in Florida


Florida Arrest Contest Costs $1,720,000

www.dui2go.com/2014/09/florida-dui-arrest-contest-costs-1720000.html

Sep 24, 2015 – As a Georgia Lawyer noted, when contests and quotas are in play, some police agencies keep their eyes on the prize. In that case , there is …


Florida Traffic Ticket Arrest Quota Award

Florida Traffic Ticket Arrest Quota Award


Florida Arrest Contest Winners?

www.dui2go.com/2014/04/florida-dui-arrest-contest-winners.html

Apr 8, 2014 – Driving under the influence Arrest Contest … it appears that citizens’ arrests are prizes in this despicable contest.

Arrest Contest Rules and Prizes

www.dui2go.com/2011/12/dui-arrest-contest-rules-and-prizes.html

Dec 15, 2011 – Attorney on Florida’s West Coast just uncovered the “rules” for a recent Arrest Contest. The awards are characterized as …


Hillsborough County Florida Traffic Ticket Arrest Quota Award

Hillsborough County Florida Traffic Ticket Arrest Quota Award


Arrest Contests Continue

www.dui2go.com/2010/10/dui-arrest-contests-continue.html

 Oct 21, 2010 – Largo Cop wins money for Pinellas Arrests. As Florida Lawyer W.F. Casey Ebsary has previously reported, here, here, …

Video | DUI Arrest Contest Trooper Tasers Sober Driver

www.dui2go.com/2012/03/video-dui-arrest-contest-trooper-tasers.html

Mar 30, 2012 – Attorney in Tampa has just received a report that a 200 Arrest Award Winner in a DUI Contest has admitted to numerous violations of DUI …


DUI Traffic Ticket Arrest Quota Award

Traffic Ticket Arrest Quota Award


DUI Arrest Contests in Florida

www.dui2go.com/2016/01/tampa-florida-dui-lawyer-continues-to.html

Jan 9, 2016 – Attorney on Florida’s West Coast just uncovered the “rules” for a recent Arrest Contest. The awards are characterized as DUI …

More Arrest Contest News

www.dui2go.com/2011/02/more-dui-arrest-contest-news.html

Feb 25, 2011 – More Arrest Contest News. Defense Attorney Observes: As we continue to tally the awards given to police officers who arrest drivers, …

Arrest Contest Trophy?

www.dui2go.com/2011/08/dui-arrest-contest-trophy.html

Aug 8, 2011 – Attorney noticed this was parked outside of the Hillsborough County Courthouse in Tampa, Florida this morning. This is an …

Florida Arrest Contest Winners

www.dui2go.com/2009/06/florida-dui-arrest-contest-winners.html

 Jun 19, 2009 – There were 13 contest winners at the Hillsborough County Sheriff’s Office (HSCO) . There were 16 contest winners at the Tampa Police …

Arrest Contest Winner

www.dui2go.com/2011/04/pasco-dui-cop-arrest-contest-winner.html

Apr 21, 2011 – DUI Defense Attorney notes that Pasco DUI cops are continuing their efforts to win DUI arrest contests. Florida Highway Patrol spokesman for …

What happens if you are confused and refused a DUI Breathalyzer test in Florida? Refuse Breath Test

Refuse Breath Test | Confused and Refused – Confusion Doctrine

 

Confusion DUI Refusal Refuse Breath Test

Confused about refusing a Breath test? Refuse Breath Test

Drivers can seek to have an alleged refusal to take a breath test thrown out of court using the  “confusion doctrine,” when the implied consent warnings are given following the administration of the Miranda warnings. If successful, the refusal of a breath test was not willful and is inadmissible. Under Florida law, the driver to make his or her confusion known to law enforcement. Florida law “does not require law enforcement officers to advise DUI arrestees that the Miranda warnings do not apply to the breath test, and a licensed driver in Florida has consented to the test and is not entitled to consult with an attorney prior to the administration of the test.”

 

What happens if you are confused and refused a DUI Breathalyzer test in Florida?

 

“The “confusion doctrine” is a judicially created exclusionary rule that operates to exclude a licensee’s refusal to submit to a breath test if the licensee believed that he had the right to consult with counsel prior to taking the test. See Kurecka v. State67 So. 3d 1052, 1056-57 (Fla. 4th DCA 2010) [35 Fla. L. Weekly D2162b]. Under this doctrine, “a licensee’s refusal to submit to [a] breath test will be excused if, due to a prior administration of the Miranda warnings, the licensee believes that he or she had the right to consult with counsel prior to taking a breath test.” Id. at 1056 (internal citations omitted).”

Miranda Warnings Do Not Apply to the Breath Test in Florida

 

“In Kurecka, the Fourth District Court of Appeal analyzed the history of the “confusion doctrine” in Florida and other states. Id. at 1057-60. That Court concluded that Florida’s implied consent statute does not require law enforcement officers to advise DUI arrestees that the Miranda warnings do not apply to the breath test, and a licensed driver in Florida has consented to the test and is not entitled to consult with an attorney prior to the administration of the test. Id. at 1060-61. “Accordingly, excluding evidence based on a suspect’s misconception about the right to counsel prior to taking the breath test would be contrary to the legislative intent of Florida’s implied consent law.” Id. at 1060.”


Video: Refusal to Take a Breath Test at Hillsborough County Jail in Florida

 

DUI Video from inside a jail where a cop is administering Florida’s Implied Consent warning given prior to requesting a suspect to take a breath test on an Intoxilyzer breath machine.


 

“The Fifth District Court of Appeal declined to apply the “confusion doctrine” on facts somewhat similar to the instant case. In Dep’t of Highway Safety & Motor Vehicles v. Marshall848 So. 2d 482, 485-86 (Fla. 5th DCA 2003) [28 Fla. L. Weekly D1553b], the DHSMV hearing officer presiding over the formal review hearing of the license suspension rejected Ms. Marshall’s self-serving testimony regarding her confusion about her right to counsel. Id. Further, none of the DHSMV documents supported Ms. Marshall’s claims, and she failed to subpoena law enforcement officers who could corroborate her testimony that she was told she could consult with an attorney prior to the breath test. Id.”

“The Seventh Judicial Circuit has once addressed the “confusion doctrine,” in a case where the an officer explained to the petitioner that he did not have the right to an attorney and that any answer other than “yes” to the breath test would be a refusal. Bosch v. Dep’t of Highway Safety & Motor Vehicles10 Fla. L. Weekly Supp. 757a (Fla. 7th Cir. Ct. 2003). The Court found that Mr. Bosch’s reliance on the “confusion doctrine” was misplaced because the Miranda warnings were given after the implied consent notice, and Mr. Bosch must have made his confusion known to the law enforcement officer in order to invoke the doctrine. Id. See also Moore v. Dep’t of Highway Safety & Motor Vehicles13 Fla. L. Weekly Supp. 932a (Fla. 9th Cir. Ct. 2006).”

Refuse Breath Test

 

“The Court finds that the hearing officer’s decision to reject the application of the “confusion doctrine” was based upon competent substantial evidence. Petitioner did not make his confusion known to Officer Jacobs, and the Miranda warnings were not given contemporaneously to the implied consent warnings. Other than his own testimony, there is no evidence to support Petitioner’s assertion that he was confused over his right to remain silent and the officer’s request for Petitioner to take the breath test. As the trier of fact, the hearing officer is in the best position to evaluate the evidence and the witnesses. See Dep’t of Highway Safety & Motor Vehicles v. Satter, 643 So.2d 692, 695 (Fla. 5th DCA 1994). The hearing officer is not required to believe the testimony of any witness, even if unrebutted. See Dep’t of Highway Safety & Motor Vehicles v. Dean662 So.2d 371, 372 (Fla. 5th DCA 1995) [20 Fla. L. Weekly D2179c]. Importantly, the hearing officer did not find that the “confusion doctrine” did not exist under Florida law; rather, he rejected the defense because Petitioner’s “testimony was not persuasive.” App. M at 5. This Court, therefore, rejects Petitioner’s reliance on the “confusion doctrine”.”

Sources: 24 Fla. L. Weekly Supp. 412a Online Reference: FLWSUPP 2406CRAW ; 13 Fla. L. Weekly Supp. 932a

 

What happens when a driver changes his or her mind and decides to take a breath test after initially refusing to take one?

 

Refusal Breath Test

Refusal Breath Test

Sometimes a driver may change their decision to take a breath test or chemical test to determine the content of their breath or blood. This refusal decision is important both in the administrative suspension of a Florida Driver’s license at the Bureau of administrative Reviews and in the criminal case prosecuted by the local State Attorney’s office in court. In driving under influence cases, the evidence of defendant’s refusal to submit to breath test is sometimes admissible. It certainly is admissible where the State seeks to administratively suspend the driver’s license for failure to comply with the implied consent law. How do you let the court know there is a problem with the police procedure? A motion in limine can be filed with the court.

 

What is a Pretrial Motion in Limine?

 

A pretrial motion can be filed to attack the use of statements of actions of the driver in the prosecution of a crime. This action results in a hearing in front of a judge and not a jury. If the motion is successful, the jury will never know about the alleged refusal. prosecutors use the argument that the reason for the refusal by the suspect was that they driver knew they would have failed the breath test by blowing over a .08.

What happens when a driver changes his or her mind about refusal to take a breath test?

 

The driver’s refusal is not admissible, if they timely retract their refusal. The court found, “There was no material inconvenience to the police, for two Intoxilyzers and two Intoxilyzer operators were available. [the Florida Highway Patrol officer]  actually ran his Intoxilyzer, after the retraction, to obtain the “refusal” on the Breath Test affidavit. ” Florida courts have ruled where the driver / defendant was continuously in presence of officers between refusal and retraction, and there would have been no inconvenience to law enforcement in permitting defendant to take test, the refusal cannot be held against them in a DUI case.

What must a driver be told by police seeking a DUI breath test?

 

  • Request to submit to a test
  • Suspend for 12 months for first refusal
  • Suspend for 18 months for subsequent refusal
  • Second or subsequent refusal can be a misdemeanor
  • Refusal is admissible in criminal case

“It is not hard to imagine circumstances where the defendant,

soon after declining to take the breath test, has second thoughts.”


Here is the  text of one court’s ruling:

STATE OF FLORIDA, Plaintiff, vs. STEVEN PAUL BURCH, Defendant. County Court, 12th Judicial Circuit in and for Sarasota County. Case No. 2015 CT 012729 SC. April 20, 2017.

ORDER GRANTING DEFENDANT’S MOTION IN LIMINE

THIS CAUSE having come to be heard upon Defendant, Steven Paul Burch’s Motion in Limine, to preclude the State from introducing any evidence that the Defendant initially refused to submit to a breath test, the Court having held hearing and taking testimony and otherwise being fully advised finds as follows:

1. On August 8, 2015, Mr. Burch was arrested for DUI.

2. Mr. Burch initially refused to take a breath test at the scene of the arrest, but changed his mind and requested to take a breath test once he arrived at the Sarasota County Jail.

3. Mr. Burch was continuously in the presence of Trooper Angelicchi from the time of his initial refusal until his retraction of the refusal.

4. When Mr. Burch arrived at the Sarasota County Jail, an Intoxilyzer was available to conduct a breath as well as two permitted breath test operators to conduct the breath test: Trooper Angelicchi and Corrections Officer Rowe.

5. The breath test affidavit that is marked “subject test refused” shows that the Intoxilyzer was run at 11:37 pm, which was long after Mr. Burch retracted the refusal.

6. In Larmer v. State of Florida Department of Highway Safety and Motor Vehicles, 522 So.2d 941 (Fla. 4th DCA 1988), the court stated:

. . .an “absolute rule” prohibiting a subsequent consent after an initial refusal could lead to unnecessarily harsh and self-defeating results. It is not hard to imagine circumstances where the defendant, soon after declining to take the breath test, has second thoughts. If the test results would remain valid, and if no material inconvenience is caused to the police, we fail to see the harm in permitting the defendant to subsequently consent to take the test.

The Court held:

. . .while petitioner was continuously in the presence of the police officers, and in circumstances where no inconvenience would result by permitting him immediately thereafter to take the test that would produce the evidence that is the object and intent of Florida’s Implied Consent Law.
Larmer citied to a Utah case that held a one hour delay was not a refusal.

7. In this case Mr. Burch was continuously in the presence of the police officers. There was no material inconvenience to the police, for two Intoxilyzers and two Intoxilyzer operators were available. Trooper Angelicchi actually ran his Intoxilyzer, after the retraction, to obtain the “refusal” on the Breath Test affidavit. There was no lawful reason not to let Mr. Burch submit to a breath test when Trooper Angelicchi was conducting the test for the ‘refusal.” The duration of the time between the refusal at the scene of the arrest and the retraction upon arrival at the jail was not of such length to render the breath test invalid.

8. While Mr. Burch initially refused the breath test, he later retracted his refusal and requested a breath test. Following Larmer, since Mr. Burch was continuously in the presence of the police officers and under circumstances where no inconvenience would result by permitting him to take a breath test, there was not a refusal within the meaning of Florida’s Implied Consent Law. Also see State v. Eng, 6 Fla. L. Weekly Supp. 649a (Fla. Pinellas Cty. Ct. September 15, 1998).

Accordingly, the Defendant’s Motion in Limine is GRANTED.

Source: 25 Fla. L. Weekly Supp. 289a Online Reference: FLWSUPP 2503BURC

How to get a Florida Driver’s License back after Suspension?

 

Recently courts have tried to help those with suspended licenses get their driver’s licenses back. According a recent report in the Florida Bar News, one judge organized a “clinic, the first of its kind in Leon County, in order to help resolve a significant problem in the area. Hundreds of Leon County drivers are operating a vehicle with a suspended or revoked license, and Smith says nine out of 10 drivers do not understand what is required of them to get their licenses back.” However, judges are limited in the help that can be provided to those who are subjected to the administrative license suspensions issued to those impacts from driving under the influence charges. Among the reasons these special programs apply: failure to resolve traffic infractions; accumulating too many points on a license; failure to have insurance; or failure to satisfy child support obligations.

Florida Implied Consent Warning Summary

Here is a summary of the language police use when threatening a suspect to take a breath or chemical test:

“If you fail to submit to the test I have requested of you, your privilege to operate a motor vehicle will be suspended for a period of one (1) year for a first refusal, or eighteen (18) months if your privilege has been previously suspended as a result of a refusal to submit to a lawful test of your breath, urine or blood. Additionally, if you refuse to submit to the test I have requested of you and if your driving privilege has been previously suspended for a prior refusal to submit to a lawful test of your breath, urine or blood, you will be committing a misdemeanor. Refusal to submit to the test I have requested of you is admissible into evidence in any criminal proceeding.”

“Do you still refuse to submit to this test knowing that your driving privilege will be suspended for a period of at least one year and that you will be charged criminally for a subsequent refusal?”

 

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,
– 2 –
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).

– 3 –

“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

– 4 –

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

– 5 –

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.

– 6 –

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.

– 7 –

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.”

– 8 –

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
– 9 –
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.”
– 10 –
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.
– 11 –
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
– 12 –
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
– 13 –
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.
* * *
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

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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.

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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.

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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

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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.

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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.

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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

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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

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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

– 33 –

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).

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