In Moreno-Gonzalez v. State of Florida, No. SC09-2163, the Florida Supreme Court held that a law enforcement officer’s failure to sign an affidavit of support of a search warrant did not invalidate the warrant.  On May 16, 2007, a circuit court judge issued a warrant authorizing a search of a Dade County residence.  The detective and the judge initialed every page of the warrant but the detective failed to sign on the line designated “AFFIANT.” 

The defense moved to suppress the hydroponic grow house that was confiscated as a result of the incomplete warrant.  The trial court granted the defense motion holding that failure to sign a search warrant constituted a fatal flaw necessitating suppression.  The 3rd DCA reversed on Constitutional grounds.  The Florida Supreme Court affirmed the decision but disagreed with the DCA’s reasoning.  According to the high court, the absence of an affiant’s signature is a matter of statutory construction as the United States Constitution has no affidavit requirement but rather an “oath or affirmation” requirement.  The Florida Constitution has different, more specific requirements than the US Constitution.

The Florida Supreme Court defaulted to a totality of the circumstances analysis in deciding to give law enforcement a pass on meeting the statutory requirement that their search warrants be signed.  Since the detective had the best of intentions, was aware of perjury sanctions for falsifying a warrant, and she’d initialed the other pages, the FSC affirmed the DCA’s “close enough” analysis.

The Supremes have gone skating down the slippery slope when relying on law enforcement’s “intentions” to the detriment of statutory requirements.  What is at the bottom of that slippery slope is uncertain…other than there will be unbridled government authority and no Constitution anywhere in sight. 

So, am I clear to fill out my monthly check to the utility company completely except for that pesky signature line?  

The Law Offices of Colón & McNelis, P.A. aggressively represents people throughout Central Florida in Personal Injury, Social Security/Disability, Immigration, Family, Criminal Defense, and Probate matters.  Colón & McNelis, (863) 534-3777, www.colonandmcnelis.com.

D.J. v. State of Florida, SC10-1852, the State of Florida charged a juvenile with trespassing on school grounds in violation of Fla. Stat. 810.097(2).  At trial, a security guard at Charles Drew Middle School in Miami-Dade County testified that her job responsibilities included monitoring student behavior.  She recognized that the minor defendant was not a student at the school, directed him to leave the school grounds, and notified the school police officer who arrested D.J. for trespass. 

At the conclusion of the State’s case, the defense moved for judgment of dismissal due to the State’s failure to prove that the minor was directed to leave by the principal or by someone with authority to restrict access to the property.  The trial court agreed, granted the defense motion, and the State appealed.  The 3rd DCA agreed with the State that granting the defense motion was error.  The Florida Supreme Court addressed the issue of whether the State was obligated to prove the identity of the individual who issued the warning to leave the school grounds and the authority vested in that individual to assert such an order. 

The Florida Supreme Court upheld the trial court’s decision and overturned the DCA citing the foundational principle that the government must prove each element of a criminal offense beyond a reasonable doubt.  The statute provides that the offender must have been warned to leave “by the principal of such school, or his or her designee.” § 810.097(2), Fla. Stat.  The identity and authority of the person who has warned the defendant to leave the grounds of the school are essential elements of the trespass offense.  These elements must be stated in the charging document and proved beyond a reasonable doubt at trial.

With its holding in D.J., the Florida Supreme Court has asserted that there are no more free passes for the prosecution and the State is required to prove every element of a crime charged…EVERY element!  The Florida Supreme Court decided the 3rd DCA needs to go back to Crim Pro 101 and the prosecution is required to follow the law…all of it. 

The Law Offices of Colón & McNelis, P.A. aggressively represents people throughout Central Florida in Personal Injury, Social Security/Disability, Immigration, Family, Criminal Defense, and Probate matters.  Colón & McNelis, (863) 534-3777, www.colonandmcnelis.com.

    In Jardines v State of Florida, SC08-2101, the Defendant sought review of a 3rd DCA reversal of the trial court’s ruling granting a defense motion to suppress evidence gained as a result of a warrantless K9 “sniff test”.  In Jardines, law enforcement conducted a warrantless search of a private residence based upon the “sniff” of a drug detection dog nosing around the defendant’s front door.  The Court held that probable cause, not reasonable suspicion, is the proper evidentiary showing of wrongdoing that the government must make prior to conducting a dog “sniff test” at a private residence. 

    The Court held that contrary to sniff cases of luggage in airports, probing a personal porch with a police pooch’s proboscis portends profound 4th Amendment protections.  The Court stated that a sniff test at a private residence “constitutes an intrusive procedure that may expose the resident to public opprobrium, humiliation and embarrassment, and it raises the specter of arbitrary and discriminatory application.” Such invasive and overbearing law enforcement behavior constitutes “a substantial government intrusion into the sanctity of the home” and requires that “the search must be preceded by an evidentiary showing of wrongdoing.” 

    Interestingly, the court noted that the detective who testified he smelled marijuana after the dog alerted was merely taking his law enforcement cues and guidance from the dog and ostensibly “confirming” what the dog already discovered.  Jardines represents a difficult day for law enforcement—they can no longer rely on a dog’s superior investigative skills when seeking to trample the Constitution on their way into the living rooms of private citizens.  Probable cause, not probable claws, is required to violate the sanctity of a personal residence.

    The Law Offices of Colón & McNelis, P.A. aggressively represents people throughout Central Florida in Personal Injury, Social Security/Disability, Immigration, Family, Criminal Defense, and Probate matters.  Colón & McNelis, (863) 534-3777, www.colonandmcnelis.com.

    Two boys from North Carolina died in a bus accident in France. The parents sued alleging a faulty tire as the cause of the accident.  The tire was manufactured in Turkey by a company with subsidiaries in Turkey, Luxembourg, and France.  The company primarily manufactured tires for sale in Europe and Asia with a small percentage distributed in North Carolina. 

    The North Carolina court granted general jurisdiction rationalizing that the placement of the subsidiaries’ tires in the “stream of commerce” was adequate to constitute “continuous and systematic” contacts with the state. The United States Supreme Court disagreed holding that the subsidiaries were not subject to general jurisdiction in North Carolina.  The sporadic sales of the subsidiaries’ tires in North Carolina through intermediaries were insufficient to warrant the assertion of general jurisdiction. 

    A state court’s assertion of jurisdiction over an out-of-state corporation requires compatibility with the Fourteenth Amendment’s Due Process Clause and must comport with “traditional notions of fair play and substantial justice.”  Mere purchases made in the state, even if occurring at regular intervals, are not enough to justify the assertion of general jurisdiction over a nonresident corporation in a cause of action not related to those purchase transactions.

    Opinions in the wake of the watershed International Shoe decision have differentiated between general and specific or case-linked jurisdiction. A court may assert general jurisdiction over foreign corporations to hear all claims against them when their dealings with the state are “continuous and systematic”.  Specific jurisdiction, however, depends on an affiliation between the state and the issues deriving from, or connected with, the controversy that substantiates jurisdiction. These connections, however, are moderated by “traditional notions of fair play and substantial justice.”

    The USSC has classified cases involving out-of-state corporate defendants as those where the corporation’s in-state activity is “continuous and systematic” and that activity gave rise to the cause of action. Further, the commission of certain “single or occasional acts” within a state may be sufficient to render a corporation subject to the state’s jurisdiction with respect to those acts, though not with respect to unrelated matters.       

    In shielding the foreign corporation’s subsidiaries from North Carolina jurisdiction, the USSC cited the facts that the subsidiaries were organized and operating in Luxembourg, Turkey, and France; that their tires were manufactured primarily for European and Asian markets; the tires differed in size and construction from tires normally sold in United States; that the subsidiaries were not registered to do business in state, had no place of business, employees, or bank accounts in state, did not design, manufacture, or advertise their products in state, and did not solicit business in state or sell or ship tires to customers in state.

    The Supremes have put a bit of polish on International Shoe lest we tire of a classic and learn that the rubber doesn’t necessarily meet the road in North Carolina. 

    The Law Offices of Colón & McNelis, P.A. aggressively represents people throughout Central Florida in Personal Injury, Social Security/Disability, Immigration, Family, Criminal Defense, and Probate matters.  Colón & McNelis, (863) 534-3777, www.colonandmcnelis.com.

 

     President Barack Obama bungled an effort to save the life of child rapist/murderer, Humberto Leal Garcia, Jr., a Mexican national.  The President injected himself into an international controversy over Garcia's death sentence but failed to protect Garcia from his own injection.  Garcia, with the support of Barack Obama, petitioned for a writ of habeas corpus and applied for a stay of execution on the ground that his murder conviction was obtained in violation of the Vienna Convention (Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261) by failing to notify him of his right to consular assistance.  The International Court of Justice (ICJ) agreed and the President of the United States (together with the Mexican national) sought to stay the execution so that Congress could consider whether to enact legislation implementing the ICJ decision.  The President of the United States issued a “Memorandum” supporting proposed legislation purporting to implement the ICJ decision.  President Barak Obama objected to the death sentence for Garcia who was convicted of raping a 16-year old girl in 1994 then killing her by strangulation and by beating her with a 35-pound chunk of asphalt. 

    In Garcia v Texas, 564 U.S. ____ (2011), the United States Supreme Court determined that a stay of execution was not warranted because neither the ICJ decision nor the President’s Memorandum purporting to implement that decision constituted directly enforceable federal law.  Additionally, the Due Process Clause did not prohibit Texas from carrying out a lawful judgment and executing the Mexican national simply because currently nonexistent legislation might someday authorize a collateral attack on the Texas judgment.  Seven years had passed since the ICJ ruling and three years since the Supreme Court’s previous decision, therefore, a stay of execution based on the last-minute introduction of a bill in a single house of Congress was not justified.  Finally, United States refused to argue that the Mexican national was prejudiced by the Vienna Convention violation. 

    The Supreme Court ruled that the Court had no authority to stay Garcia’s death execution simply because the President issued a memorandum filled with free-ranging assertions of foreign policy consequences and lacking any persuasive legal claims whatsoever.  Garcia was executed on July 7, 2011 by lethal injection.  The Supremes made it clear to Obama, you don’t mess with Texas. 

    The Law Offices of Colón & McNelis, P.A. aggressively represents people throughout Central Florida in Personal Injury, Social Security/Disability, Immigration, Family, Criminal Defense, and Probate matters.  Colón & McNelis, (863) 534-3777, www.colonandmcnelis.com.