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.

– 21 –

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

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

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

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

Burns, 502 So. 2d at 1219.

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

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

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

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

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

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

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

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

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

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

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

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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

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

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

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

POLSTON, J., concurs.

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

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

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

Computer Hacker Guilty of Intrusions – Computer Forensics E Discovery

Defacing Websites

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

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

Computer Crimes Experts, Mobile Phones, Devices, and SD Card Storage

Computer Crimes Experts Cell Phone SD Forensics

Computer Crimes Experts, Cell Phones and SD cards

Recently I reviewed a computer crime case where the dates on files on an SD card seized by the police, examined by the police computer forensic laboratory, and by a defense expert in computer forensics showed some unusual patterns in the dates of files that allegedly contained contraband. Those files on the SD-card were later the basis of criminal charges and an arrest. There were claims of evidence spoliation. “Spoliation” is a fancy word for tampering. Sometimes a Computer Crimes Experts can come in handy. During a lengthy interrogation by the Prosecutor there were some answers given that may apply to virtually any cases involving data stored on a mobile phone SD card.

Questions and Answers from Computer Crimes Expert testimony on SD Storage Devices in Mobile Devices

 

What are hash values in SD cards and stored files?

 

“These are the hash values of that. That is a method that I use to be able to correlate that picture with the picture on the SD cards, things like that; but it’s a fingerprint. Every file has a unique fingerprint.”

What is the creation date on a file stored on an SD card?

 

“I have seen instances where if a file was moved to another system, the creation date is what the current date is of that system. Because, as far as that system’s concerned, hey, it was created on my system today.”

What about iPhone, where there are no SD storage devices?

 

“For example, with iPhone being a proprietary system, you’re — you’re talking about something that’s an encrypted system and we constantly stay abreast . . . . “-

Do both police and forensic examiners use Cellebrite?

 

“[W]e — as a company, in general, stay abreast of that, the changes there, as I’m sure your group has the same — same challenges. With that, we’re — we ‘ re always challenging our vendors. There’s three primary vendors we use, including Cellebrite, which you guys use, as well. But challenging them to stay abreast of it.”

What is the job of a computer forensic examiner in case involving cell phone data and SD storage devices?

 

“To look at it with the eyes of a computer forensic expert to determine whether the evidence being portrayed was accurate or if there was evidence being omitted or not looked at from a different way and we all know that when you’re looking at it from a prosecution point of view, you look at evidence from that angle. If you’re looking at it from a defense point of view, since I work both sides, I know I’m going to look at the evidence differently in cases because in one you’re trying to find underlying causes one way or another. So I felt my job in this was to look at the evidence to determine whether or not everything was being described accurately and completely.”

Are there different types of files stored on mobile device SD cards?

 

“When you talk about system files, it’s a little bit more complex. The system does many, many things to make your life work better on a computer. And storage locations could be temporary areas; the system just uses and works with. That’s very beneficial to us in a forensic area because that can be very telling as far as how the system was used, what the system is doing, who’s doing what and what’s automatic, what’s not, what’s user initiated, what’s system initiated, all that is good. You can tell that from the temporary areas. There’s also caching areas.”

What are Cache files on an SD card?

 

“Caching areas are when the computer does something and then it goes and does something else, it caches it out, caches something back in; that’s very telling of what’s going on in the system to us. Who initiated, whether it’s automatic, whether it’s deliberate, stuff like that. There is allocated resources, unallocated resources, deleted areas; there’s just a — just a plethora of stuff that the system does and there’s a lot of different storage locations. Now the ones that I’m focusing in on, for this particular case and this particular report, are the ones that, you know, give us telltale sign of something. And I would have to read it real quick here to know what we’re getting at. I was hoping you were going to ask something specific in here, but that’s basically an overview of what storage locations are.”

What is the significance of where files are stored on an SD Card?

 

“So storage locations, I gave you an example to help you understand how storage locations work, the difference between pictures and documents, stuff like that. The system is the same way. It does certain things, it will store them in different places. The other key point here then, also is that in — when you’re talking about the system storage locations, they’re not accessible by the user. These are areas that obviously if the user could access those, you could — you could destroy your system. But these are typically areas that are not accessible by the user. By us, yes, from a forensic point of view.”

Why are system storage files important?

 

“Because, depending on how the device acquired a particular piece of information, whether it be media or text or whatever, how it was — how it came to exist on the phone matters. And system storage can help us to determine that.”

Can date meta data on an SD storage device used on a phone be altered?

 

“I’ve seen people fool that and they’ll put a cell phone in a shield bag in which case it doesn’t make connection; and there is an app, I think, that can change the date. So there’s people that could do things like that but in these particular cases, these were active and that’s really not the issue that I want to get into. The problem is that depending on the software use or how things come about — and it’s called a feature. And there’s a feature that when you take a file and you put it onto a system, that it maintains the original creation date that that particular, let’s say photograph you made, was maintained. And it’s a feature because you want to know that the Christmas of 2004 occurred on December of 2004, not when you happened to move it over there. So it is a feature of something. But then there are some operations when you move things over, and I’ve seen it before because I’ll see stuff come to be on a system, and they’re milliseconds apart, the creation date. And I know that those were — that was a copy operation performed.”

“You plug in the SD card and the metadata is put on the SD card. Last access date in — in doing the correlation was — would be updated on the phone, as well. But let’s say, for instance, if you put
an image, a brand new image on there, and the creation date was last year and you put another image on there, maybe you copied three images and the way you copied it it happened to pick up the date of the computer which was, you know, maybe you changed the date of the computer and you wanted to show it to be last month. Then when you take that SD card and you plug it in the phone, you’re going to see one image with that date from last year as a create date and then you’re going to see three images, milliseconds apart, that are from last month. What I’m saying is that the phone becomes slave to the SD card as far as the metadata –“

Can computer crimes experts discover data files placed on a mobile device without the user’s knowledge?

 

“[J]ust realize that when I’m talking about the push, that the technology is there, that the . . . potential is there for stuff to be pushed on your computer. And of course, the user is oblivious to all this going on. And that’s why you could actually go to a website that had unfortunate information on it and your computer now is a recipient of that information and you, the user, are none the wiser.”

“Sometimes the user doesn’t even know they went somewhere. Sometimes in — in this world of malware and viral attacks and exploitation of compu — of people’s identities, there’s a lot of times — like, and I use the term unfortunate, is if you do a search, one thing these search engines do not do is assess where it’s going to take you and you could click on something and then it could actually take you to a site that doesn’t display anything but it certainly puts stuff on your computer and then redirects you to something else to show you what you think you wanted to see. There’s a lot of smoke and mirrors going on behind the scenes that the user’s not aware of. That’s the push technology I’m
talking about . . . .”

“Whether or not you saw it, whether or not you meant to go there, that’s — that does not — those two statements don’t come into play when it comes to push. . . . Push includes whatever the — and I’ll call it malicious in some cases, but whatever the site, or whatever the originating prospect that might be. It could be a server, it could be a site, it could be almost anything. Whatever it is, it will push on there
and I can’t tell you what that will be. In — I can tell you in general what it is. In general it’s thumbnails.’

“The fact that Windows does that, is a feature to allow you to operate better. But how many times have we heard about there being a hole, an exploited hole in Windows that Microsoft had to go in
and patch with a new release or with — with a new update they patched this hole or they discovered this — this whatever was open and they come in. You take a feature on something and you get a
website that exploits that feature, I think you kind of then answered your question because then okay, well whose fault is it? Well, it’s a feature of Windows to do this. But they’re — the reason it was written was to optimize web browsing, that’s it. Now to push big stuff on there, and push other stuff on there, when people are taking it to its limit and exploiting it and doing the wrong thing, then I’d say it’s the fault of the site.”

Top 50 Ways Into Hillsborough County Jail | Tampa

Hillsborough County Jail

Top 50 Ways to End up Inside the Hillsborough County Jail

Here are some statistics from Tampa’s Hillsborough County Jail. We have collected the top 50 ways to end up in Tampa, Florida’s jail and have shared them below.

Drug and Traffic charges dominate the Top Ten. Theft charges seem to take the second group of ten. We have reviewed a number of other arrest records and it appears there are 1656 different ways to end up arrested for criminal charges and inside of  this major metropolitan jail.

Top 50 Ways Into the Hillsborough County Jail

 

 

Ranking

Charge Description

Form Code

Statute

Level

Degree

1. Driving W/License Canc Susp  Or Revoked TRAF6075 322.34.2A Misd 2nd
2. Possession Of Cocaine DRUG1101 893.13.6A Fel 3rd
3. Possession Of Drug Paraphernalia DRUG8100 893.147. Misd 1st
4. Grand Theft 3rd ($300 – $5,000) THEF2001 812.014.2C1 Fel 3rd
5. Possession Of Cannabis  Less Than 20 Grams DRUG2103 893.13.6B Misd 1st
6. Battery (Domestic Violence) BATT1002 784.03.1AB Misd 1st
7. Driving Under The Influence TRAF1012 316.193.1 Misd 2nd
8. Obstructing Or Opposing An Officer Without Vio COPS1000 843.02. Misd 1st
9. Driving While License Revoked-Habitual Offendr TRAF6078 322.34.5 Fel 3rd
10. Petit Theft ($100 Or Less) THEF1011 812.014.3A Misd 2nd
11. Possession Of Controlled Substance DRUG9101 893.13.6A Fel 3rd
12. Dealing In Stolen Property THEF5000 812.019.1 Fel 2nd
13. Uttering A Forged Instrument FORG2000 831.02. Fel 3rd
14. Battery (Touch Or Strike) BATT1000 784.03.1AB Misd 1st
15. Trespass On Prop Other Than Structure Or Conve TRES4001 810.09.1A2A Misd 1st
16. Grand Theft Motor Vehicle THEF2201 812.014.2C6 Fel 3rd
17. Contempt Of Court ADMIN007 901.11. Infractions
18. Obtain.Prop. For Worthless Ck.(Less Than $150) WOCK2000 832.05.4 Misd 1st
19. False Name To Law Enforcement Officer COPS2060 901.36.1 Misd 1st
20. Delivery Of Cocaine DRUG1200 893.13.1A Fel 2nd
21. Possession Of Open Container TPOR0064 003.40.B Municipal/Local
22. Manufacture Dist Dispense Posses Con Sub- Fed USCA0003 021.841.
23. Operating Unregistered Vehicle TRAF5015 320.02.1 Misd 2nd
24. Petit Theft 1st THEF1010 812.014.2E Misd 1st
25. No Valid Drivers License TRAF5099 322.03.1 Misd 2nd
26. Possession Of Cocaine With Intent To Sell Or D DRUG1300 893.13.1A Fel 2nd
27. Possession Of Cannabis DRUG2102 893.13.6A Fel 3rd
28. Aggravated Assault With Deadly Weapon ASSA5005 784.021.1A Fel 3rd
29. Battery On A Law Enforcement Officer BATT1010 784.03.1A Fel 3rd
30. Driving Under The Influence  Unlawful Breath A TRAF1015 316.193.1C Misd 2nd
31. Attaching Tag Not Assigned TRAF5040 320.261. Misd 2nd
32. Possession Of Cannabis With Intent To Sell Or DRUG2300 893.13.1A Fel 3rd
33. Aggravated Battery   Deadly Weapon BATT5000 784.045.1A2 Fel 2nd
34. Aggravated Battery (Deadly Weapon) BATT5000 784.045.1A2 Fel 2nd
35. False Info On Pawnbroker Form (Under $300) PAWN8010 539.001.8 Fel 3rd
36. Criminal Mischief   Less Than $200 CRMS1000 806.13.1B1 Misd 2nd
37. Obstructing Or Opposing An Officer With Violen COPS2000 843.01. Fel 3rd
38. Burglary Of An Unoccupied Conveyance BURG0022 810.02.1B4B Fel 3rd
39. Reckless Driving TRAF3030 316.192. Misd 2nd
40. Felon In Possession Firearm   Firearm  Possess GUNS0420 790.23.1 Fel 2nd
41. Obtain.Prop. For Worthless Ck (More Than $150) WOCK3000 832.05.4 Fel 3rd
42. Disorderly Conduct MISC0124 877.03. Misd 2nd
43. Fraudulent Use Of Credit Card Over $100 FRAU3000 817.61. Fel 3rd
44. Robbery (Less Than $300) ROBB3000 812.13.12C Fel 2nd
45. Aggravated Battery Great Bodily Harm BATT5050 784.045.1A1 Fel 2nd
46. Criminal Mischief    $200 To $1000 CRMS2000 806.13.1B2 Misd 1st
47. Worthless Check WOCK1000 832.05.2 Misd 1st
48. Forgery FORG1000 831.01. Fel 3rd
49. Criminal Mischief   $1000 Or More CRMS3000 806.13.1B3 Fel 3rd
50. Carrying Concealed Firearm WEAP1000 790.01.2 Fel 3rd

 

Attorney Online Reviews and Internet Libel in Florida

Online Reviews Internet Libel

Punitive damages of $350,000

A Florida lawyer has won an appeal in a case involving internet libel and online reviews of the attorney. The case involves divorce and allegations made in reviews that are quoted in the complete opinion of the The Fourth District Court of Appeal in West Palm Beach, Florida.The online reviews “contained allegations that [lawyer] lied to [client] regarding the attorney’s fee. Two of the reviews contained the allegation that [lawyer] falsified a contract. These are factual allegations, and the evidence showed they were false. ” The court entered judgment in favor of [attorney] and awarded punitive damages of $350,000.”

Excerpt from Internet Libel Case With Punitive Damages of $350,000

 

 

“Both … admitted to posting the reviews on various internet sites. The evidence showed that … had agreed to pay her attorney the amount reflected on the written retainer agreement—$300 an hour . . . . [B]oth admitted at trial that [attorney] had not charged . . . four times more than what was quoted in the agreement. The court entered judgment in favor of [attorney] and awarded punitive damages of $350,000.”

Complete Opinion of the Court in Attorney Online Review and Internet Libel Case in Florida

 

 

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

COPIA BLAKE and PETER BIRZON,
Appellants,

v.

ANN-MARIE GIUSTIBELLI, P.A., and ANN-MARIE GIUSTIBELLI, individually,
Appellees.

No. 4D14-3231

[January 6, 2016]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No. 12-22244 (12).

Copia Blake, Kansas City, MO, and Peter Birzon, Weston, pro se.

Ann-Marie Giustibelli, Plantation, for appellees.

CIKLIN, C.J.

After a non-jury trial, the trial court awarded the appellee, attorney Ann-Marie Giustibelli, damages in this libel and breach of contract case. In their initial brief on appeal, the appellants, Copia Blake and Peter Birzon, raised five issues. After briefs were filed and the court spent considerable time entertaining the issues raised, Birzon filed a notice that he and the appellee had settled the matter and that he was withdrawing his appeal. Blake did not join in the notice. We note that even if she had, we would not have dismissed the appeal. One issue Blake and Birzon raised involves the application of free speech protections to reviews of professional services posted on the internet. We affirm in all respects, but this issue merits discussion as it presents a scenario that will likely recur, and the public will benefit from an opinion on the matter. See Caiazzo v. Am. Royal Arts Corp., 73 So. 3d 245, 248-49 (Fla. 4th DCA 2011) (recognizing that appellate court has discretion to retain jurisdiction over an appeal after it has been voluntarily dismissed, particularly where “the case presents a question of public importance and substantial judicial labor has been expended” (quoting State v. Schopp, 653 So. 2d 1016, 1018 (Fla. 1995))).

Attorney Giustibelli represented Copia Blake in a dissolution of marriage proceeding brought against Peter Birzon. After a breakdown in the attorney-client relationship between Giustibelli and her client, Blake and oddly, Birzon as well, took to the internet to post defamatory reviews of Giustibelli. In response, Giustibelli brought suit, pleading a count for libel. She also brought counts for breach of contract and for attorney’s fees, alleging that Blake still owed her money related to the divorce representation.

Blake’s and Birzon’s posted internet reviews contained the following statements:

This lawyer represented me in my divorce. She was combative and explosive and took my divorce to a level of anger which caused major suffering of my minor children. She insisted I was an emotionally abused wife who couldn’t make rational decisions which caused my case to drag on in the system for a year and a half so her FEES would continue to multiply!! She misrepresented her fees with regards to the contract I initially signed. The contract she submitted to the courts for her fees were 4 times her original quote and pages of the original had been exchanged to support her claims, only the signature page was the same. Shame on me that I did not have an original copy, but like an idiot . . . I trusted my lawyer. Don’t mistake sincerity for honesty because I assure you, that in this attorney’s case, they are NOT the same thing. She absolutely perpetuates the horrible image of attorneys who are only out for the money and themselves. Although I know this isn’t the case and there are some very good honest lawyers out there, Mrs. Giustibelli is simply not one of the “good ones[.]” Horrible horrible experience. Use anyone else, it would have to be a better result.

**********

No integrity. Will say one thing and do another. Her fees outweigh the truth. Altered her charges to 4 times the original quote with no explanation. Do not use her. Don’t mistake sincerity for honesty. In her case, they’re not at all the same. Will literally lie to your face if it means more money for her. Get someone else. . . . Anyone else would do a superior effort for you.

**********

I accepted an initial VERY fair offer from my ex. Mrs. Giustibelli convinced me to “crush” him and that I could have permanent etc. Spent over a year (and 4 times her original estimate) to arrive at the same place we started at. Caused unnecessary chaos and fear with my kids, convinced me that my ex cheated (which he didn’t), that he was hiding money (which he wasn’t), and was mad at ME when I realized her fee circus had gone on long enough and finally said “stop[.]” Altered her fee structures, actually replaced original documents with others to support her charges and generally gave the kind of poor service you only hear about. I’m not a disgruntled ex-wife. I’m just the foolish person who believes that a person’s word should be backed by integrity. Not even remotely true in this case. I’ve had 2 prior attorneys and never ever have I seen ego and monies be so blatantly out of control.

Both Blake and Birzon admitted to posting the reviews on various internet sites. The evidence showed that Blake had agreed to pay her attorney the amount reflected on the written retainer agreement—$300 an hour. Blake and Birzon both admitted at trial that Giustibelli had not charged Blake four times more than what was quoted in the agreement. The court entered judgment in favor of Giustibelli and awarded punitive damages of $350,000.

On appeal, Blake and Birzon argue that their internet reviews constituted statements of opinion and thus were protected by the First Amendment and not actionable as defamation. We disagree. “[A]n action for libel will lie for a ‘false and unprivileged publication by letter, or otherwise, which exposes a person to distrust, hatred, contempt, ridicule or obloquy or which causes such person to be avoided, or which has a tendency to injure such person in [their] office, occupation, business or employment.’” LRX, Inc. v. Horizon Assoc. Joint Venture ex rel. Horizon-ANF, Inc., 842 So. 2d 881, 885 (Fla. 4th DCA 2003) (quoting Thomas v. Jacksonville Television, Inc., 699 So. 2d 800, 803 (Fla. 1st DCA 1997)).1
1 Statements of pure opinion are not actionable. Morse v. Ripken, 707 So. 2d 921, 922 (Fla. 4th DCA 1998). However, “there is no constitutional value in false statements of fact.” Id. (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974)). If a factfinder “were to conclude that any of the [assertions of fact] in the [publication] were false, [this] would allow the [factfinder] to disregard the pure opinion defense.” LRX, 842 So. 2d at 886.

Here, all the reviews contained allegations that Giustibelli lied to Blake regarding the attorney’s fee. Two of the reviews contained the allegation that Giustibelli falsified a contract. These are factual allegations, and the evidence showed they were false.

As part of their “free speech” claim, Blake and Birzon point out that the judgment references defamation “per se.” They argue that libel per se no longer exists as a legal concept after the decision by the United States Supreme Court in Gertz, 418 U.S. 323 (1974). “[A] publication is libelous per se, or actionable per se, if, when considered alone without innuendo: (1) it charges that a person has committed an infamous crime; (2) it charges a person with having an infectious disease; (3) it tends to subject one to hatred, distrust, ridicule, contempt, or disgrace; or (4) it tends to injure one in his trade or profession.” Richard v. Gray, 62 So. 2d 597, 598 (Fla. 1953); see also Shafran v. Parrish, 787 So. 2d 177, 179 (Fla. 2d DCA 2001) (“When a statement charges a person with committing a crime, the statement is considered defamatory per se.” (citation omitted)). In Gertz, the Court held that “so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.” Gertz, 418 U.S. at 347. After Gertz, the Florida Supreme Court recognized that, with respect to a libel action against the media, it is no longer accurate to say that ‘“[w]ords amounting to a libel per se necessarily import damage and malice in legal contemplation, so these elements need not be pleaded or proved, as they are conclusively presumed as a matter of law.’” Mid-Fla. Television Corp. v. Boyles, 467 So. 2d 282, 283 (Fla. 1985) (quoting Layne v. Tribune Co., 146 So. 234 (1933)). Thus, after Gertz, in libel cases involving media defendants, fault and proof of damages must always be established.

Notably, the instant case does not involve a media defendant. Libel per se otherwise still exists in Florida. See Lawnwood Med. Ctr., Inc. v. Sadow, 43 So. 3d 710, 727-29 (Fla. 4th DCA 2010) (containing discussion of the presumption of damages that applies in defamation per se cases); Perry v. Cosgrove, 464 So. 2d 664, 666 (Fla. 2d DCA 1985) (reversing trial court’s grant of a motion to dismiss a libel per se action brought by a former editor of a newspaper against his supervisor, who had written a letter to a reader suggesting that the editor was fired for reasons that were shameful); Owner’s Adjustment Bureau, Inc. v. Ott, 402 So. 2d 466, 470 (Fla. 3d DCA 1981) (concluding that statements in a letter amounted to libel per se as a matter of law).

As to the remaining arguments raised on appeal, we decline to
address them as they are not sufficiently briefed, not preserved, or lack merit.

Affirmed.

MAY and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

Spend 600 Months In Prison When Police Search Lost Cell Phone

Search Warrant Cell Phone

Search of Lost Cell Phone

What Happens When Police Search Your Lost Cell Phone That Has Illegal Material On It?

 

The story begins in a Walmart in Florida. The owner lost their phone at Walmart. After he left the phone, it was found, and the owner agreed to pick it up from the store. The owner of the phone failed to pick the phone up from the store. The store manager looked at the phone in an effort to find a photo of the owner. When the manager found contraband on the phone, she called the cops – police search lost cell phone.

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 ruled that this did not constitute an unreasonable delay to obtain a search warrant. First, the court found that the defendants had hoped the store manager would not report the materials found on the phone to the police. Second, the phone owner had filed an insurance claim and replaced the phone with the exact same model. The decision to not retrieve the phone from the store, coupled with the filing of an insurance claim, and replacing the phone with the same model constituted an abandonment of ownership of the phone. Search and seizure law requires that those who challenge a search and seizure must have standing to challenge the search. In this case, the phone owner had no standing to challenge the search, the phone and any rights the owner had to challenge the search and seizure were gone. The court also addressed the Private Search Doctrine that supports searches by citizens, that otherwise might be illegal if performed by the police or the government.

Sentenced to 600 Months in Federal Prison

 

By the way, the court found that a 600 month sentence for the materials found on the phone was just fine. The phone owner entered a written plea agreement and the sentence was a possible outcome that while it was as harsh as the judge could impose, it was within the terms of the plea agreement.

Case Excerpts

 

“When Vo [store manager] failed to meet Sparks [phone owner] with the phone as the two had previously agreed,  Defendants knew how to find Vo to get their phone back. But Defendants did not return to their Walmart store and look for Vo. Nor did they ask for Walmart’s assistance in obtaining their phone, found in its store, by its employee. They also did not file a report with Walmart or the police complaining that Vo would not return their phone, despite their requests. Instead, they made a conscious decision to stop pursuing the phone, even though they knew how to get it back with reasonable effort. That decision—whether because Defendants hoped that Vo would not report them if they did not continue to seek the phone or because Defendants simply thought recovery of the phone was not worth their reasonable effort—can be viewed only as a deliberate decision to abandon the phone. Because Defendants abandoned their phone within three days of having lost it, they lack standing to challenge law enforcement’s 23-day delay between recovering the phone and obtaining a search warrant to search it.”

The Private-Search Doctrine

 

“The Fourth Amendment provides that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV. The protection the Fourth Amendment affords, however, extends to governmental action only; “it is wholly inapplicable ‘to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official.’” United States v. Jacobsen, 466 U.S. 109, 113, 104 S. Ct. 1652, 1656 (1984) (quoting Walter v. United States, 447 U.S. 649, 662, 100 S. Ct. 2395, 2404 (1980) (Blackmun, J., dissenting)). So once an individual’s expectation of privacy in particular information has been frustrated by a private individual, the Fourth Amendment does not prohibit law enforcement’s subsequent use of that information, even if obtained without a warrant. Id. at 116, 104 S. Ct. at 1656; see id. at 117, 104 S. Ct. at 1658-59.”

Read Complete Opinion Here: http://media.ca11.uscourts.gov/opinions/pub/files/201412143.pdf

Read More About Search And Seizure of A Cell Phone Here.

Read Even More About Search And Seizure of A CellPhone Here.

#DUI: The People’s Guide to Fighting – DUI Defense Book

DUI Defense Book, DUI Attorney, DUI Attorney Tampa, DUI Lawyer, DUI Lawyer Tampa, Criminal Defense Attorney

DUI Defense Book

DUI Defense Book

 

In this 86 page color illustrated DUI Defense book you can research the harsh punishment imposed under Florida’s strict driving under the influence laws. Journey from the arrest at the roadside, to the county jail, to a vehicle being impounded, to the posting of bond, and to the realization that the driver’s license office is going to try to keep the driver off of the road. From the arrest, to the days or months in court, it all can seem overwhelming. But there is information you can use, and there is hope for you, a friend, or a loved one. Knowledge lies within this book. Learn to fight like an expert.

The table of contents to the DUI expert from Tampa, Florida’s book below lists the topics covered.

The book is available in both paperback and as an eBook download.

UPDATE: The DUI Defense Attorney book is now available on iTunes. The DUI book is available for download with iBooks on your Mac or iOS device, and with iTunes on your computer. The expert criminal defense attorney eBook can also be read with iBooks on your Mac or iOS device.

https://itunes.apple.com/us/book/dui-peoples-guide-to-fighting/id997095533?mt=11

Amazon just picked up the #DUI book – thanks everyone.

http://www.amazon.com/DUI-Peoples-Guide-Fighting-Expert/dp/1329123336/

Amazon Author Page is here:

http://amazon.com/author/centrallaw

Here it is on Barnes and Noble.

http://www.barnesandnoble.com/w/dui-the-peoples-guide-to-fighting-like-an-expert-wf-casey-ebsary-jr/1122000247?ean=9781329141872

Read a sample of the DUI Attorney book here on Google Books:

 

Book Reviews:

 

By Richard Georges, Esquire May 16, 2015

“This new book by my former student, Casey Ebsary, is a quick, easy read full of useful informaton about what to do if charged with DUI. There are many details that can be marshaled by the arrested driver, and Casey outlines them for the reader. Don’t go it alone. Get legal advice; but, before you are arrested, read this book. Of course, my solution, don’t drink and drive, will help more. But, that said, you need to know the law if you are going to limit the impact of an arrest.”

Futurelawyer.com

By Michael Maddux, Attorney-at-Law May 16, 2015

“The author has taken his two decades plus of experience as a state prosecutor and board-certified criminal trial attorney and distilled his insight into a practical application for the layperson. This is the one guide you will want to march you through the complicated terrain of DUI litigation. Those who own this guide are sure to find comfort in their journey through an unpleasant process that affects a broad spectrum of people. Given the significant costs of a DUI knowing how to survive one and defeat the typical outcome makes this book a bargain.”

Tampa Lawyer

By Deva Caprice May 17, 2015

“If you are not fortunate enough to have an attorney as capable as Mr. Ebsary as your counsel, at least you can take the distillation of his wisdom and practical experience and teach your public defender a thing or two before your day in court and then maybe you’ll stand a chance and won’t have to use your lawn mower as transportation. Good Luck! But why count on luck when the law actually can be on your side…as long as you are privy to the rare and precious factoids provided in the concise and easy to read guide. Cheers!”

A Driver


#DUI: The People’s Guide to Fighting Like An Expert

 

By W.F. ”Casey” Ebsary Jr (Tampa, Florida 2015)


DUI Book Table of Contents

 

Introduction: Do You Need a DUI Lawyer?
3-Step Roadmap to Getting Back on the Road
The Traffic Stop
DUI Checkpoints
Vehicle Seizures and Forfeitures
Checkpoint Invalidated
DUI Checkpoint Invalid
Law Enforcement DUI Checkpoint or Roadblock Manual
Wolf Packs
DUI Arrest Contests
No Bad Driving
Anonymous Tips
Traffic Stop by Non Law Enforcement
The Roadside Encounter
Field Sobriety “Tests” | Not Really
Video Recording of Police Encounters
Roadside Policy on DUI Arrests
Refusal of Roadside Testing for DUI
Five Field Sobriety Exercises
HGN – Horizontal Gaze Nystagmus
Five Things to Know About Drug Recognition Experts
Walk and Turn
One Leg Stand
Finger to Nose
ABC – Reciting the alphabet
Failure to Follow Proper Procedures
Phony Reporting Roadside Sobriety Investigation
Illegal Detention
DUI Detention After a Crash
The Arrest
Targeting Restaurants and Bars
Citizen’s Arrest
The Breath Test
Refusal to Submit to Chemical Test
Implied Consent Warning
What Does a Cop Suspected of DUI Do When Asked?
What About a Driver’s Miranda Rights?
Breath Test Results Report
Witnesses Required For Court
Broken Breath Machines
Calibration of the Breath Machine
Tinkering with Intoxilyzer 8000 Breath Machines
Roadside Breath Testing Not Used
Portable Breath Testing for Under Age 21
The Driver’s License
Florida DUI License Suspension
DUI Conviction on Driving Record for 75 Years
Summary of Florida DUI License Suspension Laws
Failure to Challenge Suspension Within 10 Days
Consequences of a DUI
Business or Employment Reinstatement
Refusal of a Blood Test
The Court
Florida Standard Jury Instruction for DUI Breath Alcohol
Jury Trial Victories
Acquittal of a DUI Charge
The Impact
Vehicle Impounded
First Time DUI Penalties
Second Time DUI Penalties
How to Go to Jail
Third time DUI Penalties
How to Get a Felony DUI
Commercial Drivers and DUI
Blood Testing
Hardship License Prohibited
Notes

Paperback Details

ISBN 9781329123335

Copyright Law Office of W.F. “Casey” Ebsary Jr.

First Edition

Published May 16, 2015

Pages 86

Paperback Full Color

eBook Details

ISBN 9781329141872

Copyright Law Office of W.F. “Casey” Ebsary Jr.

First Edition

Published May 16, 2015

File Format ePub

File Size 825.75 KB

Formats for Ebook ePub

Required Software Any ePub Reader

Supported Devices Windows PC/PocketPC, Mac OS, Linux OS, Apple iPhone/iPod Touch

Unlimited # of Devices

Flowing Text

Printable

Is the Lie Detector | Polygraph Admissible in Federal Court?

Lie Detector Polygraph

Judge says OK to Polygraph

A crew member of a ship claimed he did not know drugs were on board the ship. He was indicted in the Middle District of Florida’s Tampa Division. The indict them all, let the jury sort them out indictment charged many aboard with knowing the ship had drugs on board. This is not a rare claim where smugglers tend to minimize the need to know that 10-100 million dollars of cocaine is on board the vessel. The best way to understand the case is to read it here.

Federal Criminal Defense Attorney Court Ruling on Polygraph

“the Court finds the polygraph evidence to be admissible at trial to either impeach or corroborate witness testimony”

Update  – Comments from Lead Defense Counsel

“There were three important lessons learned from this experience: 1) it is important to have the testimony of a qualified scientist, such as Dr. David Raskin, to testify in the Daubert hearing as the polygraph examiners are usually not well-versed enough in the scientific studies supporting the technique; 2) using a highly qualified examiner with extensive prior government experience is also critical, and 3) the relevant questions must be simple enough but carefully constructed so the results of the exam are indisputably meaningful.”

“[I]it helped to submit Dr. Raskin’s declaration in advance of the Daubert hearing so that all of the detailed support for the polygraph’s admissibility was on the record in advance, making the actual hearing go much more smoothly.”

Lead Defense Counsel Contact Information is Christophir A. Kerr, 13801, Walsingham Rd.  #A-154, Largo, FL 33774, 727-492- 2551 .

Facts in Federal Drug Case

“Defendant Angulo-Mosquera, a 53-year old deckhand and cook, was indicted on September 4, 2014 in the Middle District of Florida on charges related to the seizure of 1,700 kilograms of cocaine concealed on board a freighter known as the “Hope II” in August 2014. Defendant Angulo-Mosquera is a Colombian national with no known criminal record in any country. He has never before been in the United States. Defendant Angulo-Mosquera denies any knowledge of the drugs found concealed on the Hope II and any involvement of any kind in the illegal drug trade.”

Is the Lie Detector | Polygraph Admissible in Federal Court?

A United States District Judge in Florida’s Middle District, Judge Honeywell ruled in this Order that the court would allow admission of a polygraph performed by a former FBI agent on a defendant at trial. The defendant will testify at trial and has passed a pretrial polygraph.  Here are the relevant questions:

1. Did you know those drugs were on that ship before the Coast Guard boarded the ship? Answer: No.

2. Did you know those drugs were on the Hope II before the Coast Guard boarded that
ship? Answer: No.

3. Did you know those drugs were on that ship before the Coast Guard found them in
August? Answer: No.

Polygraph Case Excerpts:

“Defendant Angulo-Mosquera plans to testify in his own defense at trial and requests that the results of the polygraph examination be admitted into evidence to corroborate his testimony. The Government objects arguing that polygraph examinations are just “one step above” junkscience and are “not suitable for juror consumption.” TR at 46:15-24, 49:16-17. The results of the polygraph examination, if admitted at trial, would be presented through expert witness testimony.”

“[T]the Court held an evidentiary hearing to determine the admissibility of the polygraph evidence and expert testimony regarding same, under Federal Rule of Evidence 702 (“Rule 702”) and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). At the hearing, Defendant Angulo-Mosquera presented the testimony of Dr. David C. Raskin, who for 44 years has conducted laboratory and field research on polygraph techniques for the detection of deception, taught university courses about polygraph techniques, trained government and law enforcement polygraph examiners, and published extensively on polygraph techniques, regarding the reliability of polygraph examinations in general and the examination in this case specifically.”

Junk Science Claim

“Defendant Angulo-Mosquera plans to testify in his own defense at trial and requests that the results of the polygraph examination be admitted into evidence to corroborate his testimony. The Government objects arguing that polygraph examinations are just “one step above” junk science and are “not suitable for juror consumption.” TR at 46:15-24, 49:16-17. The results of the polygraph examination, if admitted at trial, would be presented through expert witness testimony.”

“Thus, in determining the admissibility of expert testimony under Rule 702, courts must engage in a rigorous three-part inquiry, determining whether: (1) the expert is qualified to testify competently regarding the matters he intends to address; (2) the methodology by which the expert reaches his conclusions is sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (3) the testimony assists the trier of fact, through the application of scientific, technical, or specialized expertise, to understand the evidence or to determine a fact in issue.”

“Some factors that bear on this inquiry are: 1) whether the expert’s theories, methods or techniques can be or have been tested; 2) whether the technique, method, or theory has been subject to peer review and publications; 3) whether the known or potential rate of error of the technique when applied is acceptable; and 4) whether the technique, method, or theory has been generally accepted in the scientific community.”

Polygraph Ruling

“Thus, the Court finds the polygraph evidence to be admissible at trial to either impeach or corroborate witness testimony. Further specifics regarding the admission of the polygraph evidence will be determined at the time of trial. Accordingly, it is hereby ORDERED that Defendant’s Motion for an Evidentiary Hearing on Admission of Polygraph Evidence (Doc. 67), construed as a motion to determine the admissibility of the polygraph evidence under Federal Rule of Evidence 702, is GRANTED. The Defendant may present the polygraph evidence, through expert testimony, to corroborate or impeach witness testimony at the trial in this matter.”

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