Talking Dirty in the Courtroom

Florida State and Federal courts have rules to stop prosecutors from making conclusions and accusations in their questions, opening statements and closings. Smart lawyers watch out for this prosecutor’s trick. If you have an active criminal case, felony or misdemeanor, speak to your criminal defense lawyer about how to defeat this prosecutor’s trick…

I have several “PAIN CLINIC” cases in my office, some in Florida Federal court and some in Florida State courts. Each time the prosecutor uses the words “pill mill” I’m on my feet. My doctor clients are physicians at a pain clinic, not a “pill mill”. Watch for words that make you look bad, like “the accused” (you are a defendant), and object. I do!

Think out of the box and look for ‘dirty words’ and tell your criminal defense lawyer to object. In Florida State criminal courts here in Fort Lauderdale and Miami, attorney Ralph Behr (me) is famous for sending prosecutors to the woodshed for bashing my clients with “dirty words” like “evildoer” and “bad man” and “criminal”. A fair trial means the prosecutor, whether in Palm Beach criminal courts or a court near you.. cannot accuse and abuse a defendant by using words that contain conclusions: that’s for the jury to determine.

In South Florida and all of its jurisdictions such as Miami, West Palm Beach, Fort Lauderdale, Hollywood, Pompano Beach, Aventura, Boca Raton and Coral Springs, many pretrial motions can be filed by the defense. A few of them are Motion to dismiss, Motion to suppress, and Motion to Sever.

If the evidence the State has against the defendant is a product of an unlawful search, the defense can move the court to suppress that evidence. If a confession or admission was obtained illegally, either by interrogating the defendant without letting him know of his Miranda rights, or by the use of threats, then the defense can move to court to suppress the confession or admission.

The Motion to Suppress needs to specifically state the particular statement or evidence sought to be suppressed, the reasons for suppression and a general statement of the facts on which the motion is based.

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Defendants Taking Pleas in Absentia

What happens if a defendant lives outside of the State or even the country, and would like to enter or accept a plea offer?
A defendant can, if he or she wishes, enter what is called a plea in absentia.
A plea in absentia is done in the form of an affidavit which the Defendant signs, indicating that he understands the consequences of his plea and that he accepts the plea offer from the Prosecutor.
This can be done anywhere as long as the form is notarized.
Once the defendant completes and signs the form in front of a notary he or she will send the document to his or her attorney who will bring it up in front of the judge.

If you know someone who wants to enter a plea in absentia, call our offices to speak with attorney Ralph Behr.

Call our offices now, 954-761-3444. Phones answered 24/7

Charged as an Accessory in South Florida

In South Florida and all of its jurisdictions such as Fort Lauderdale, Miami, West Palm Beach, Pompano Beach, Hollywood, Aventura, or Boca Raton, an individual who intentionally participates in a crime or helps a criminal before or after the crime, may be held responsible for it.

Take for instance someone who knows his friend will be going to a warehouse to commit burglary Monday night, and agrees to babysit for the burglar’s children while the burglar commits the crime.

The State needs to prove that the defendant is an accomplice by proving that they intentionally helped in the commission of a crime. The state must prove that the individual knew that the principal was going to commit a crime and he or she intended to help the crime succeed.

Another way of being responsible for a crime is being an accessory after the fact which is someone who knows that a felon has just finished committing a crime and helped the felon avoid arrest or trial.

If you have been accused of being an accessory or an accomplice, call attorney Ralph Behr. You need an experienced criminal defense attorney on your case. Call our offices at 954-761-3444

Second Chance for First Time Offenders

In South Florida and most of its counties such as Miami-Dade, Palm Beach and Broward, first time offenders being charged with a Misdemeanor have an opportunity to enter what it's called a Misdemeanor Diversion Program, or MDP.
A misdemeanor diversion program allows those first time offenders to accept responsibility for their actions, seek rehabilitation, and divert their cases from the criminal court system. The whole program is supervised by the Broward Sheriff's Office.
What does the defendant need to do upon entering the MDP?
It depends a lot on the specific facts of each case. If it's a drug related activity, the defendant would usually have to participate in a drug abuse program. If it is a battery or domestic violence case, the defendant will be required to undergo a batterer's intervention program.
Regardless of the facts of the case, all individuals entering the MDP will need to do 25 hours of community service and pay certain fees.
If the program takes 3 months, he or she will have to pay $300 to the probation office and $150 to the court. If it is a 6 month program, the defendant will need to pay $600 to the probation office and $150 to the court. The individual entering the MDP must be a resident of Broward county, although there are some exceptions. Students, for example, may reside elsewhere when school is in session, but will have to be in Broward county and have a verifiable address when they are not required in school. Another requirement of the MDP is that the defendant needs to physically chek-in once a month with the probation office.
If you are being charged with a misdemeanor and think you are eligible for the Misdemeanor Diversion Program, you need a criminal lawyer with experience who will be able to get you in the program and keep you case off of the criminal court system.
Call Attorney Ralph Behr at 954-761-3444

Did You Have A Motive?

Not only in the counties of Broward, Palm Beach and Miami-Dade but also in other areas of South Florida, when a crime is being investigated, one of the most important elements is the Mens Rea. This is a phrase in Latin which means a Guilty Mind.
The guilty mind is an important element in cases involving criminal acts such as homicide, manslaughter, and other felony crimes.
The State of Florida has the burden of proving that the element of mens rea actually existed at the time the crime was committed. In order to prove that the element was present, they may try to identify a possible motive for the perpetrator to commit the offense.
It will be easier for the jury to believe that the element of mens rea existed if they believe that the defendant had a motive to commit the crime. A motive is the reason behind a crime, for example a desire for revenge or financial pressure.
Without finding any possible motive that led the defendant to commit the crime, it is hard for the state of Florida to prove the guilty mind of the individual. However, it doesn’t mean that they will not come up with another element leading to the belief that mens rea was present.
If you are being charged with a felony, call a criminal defense attorney in South Florida for a free consultation.

Not Just A Simple Battery

According to Florida Statutes, battery can be defined as one person intentionally touching another, causing bodily harm. This is often confused with assault. The difference is that sometimes assault doesn’t require the actual touching of another human being, but only verbal assault.
In Ft Lauderdale, Miami, Palm Beach and other regions in South Florida, battery can be divided in armed battery, aggravated battery and felony battery. According to Florida rules, armed battery is when the perpetrator uses or carries a firearm at the time of the offense. Felony battery is when the perpetrator of the crime has the intention of causing great bodily harm, such as permanent disability. Aggravated battery, on the other hand, includes the intention of causing bodily harm but also the use of a deadly weapon while committing the crime.
It is important to know that in Broward County, Palm Beach County and Miami-Dade County, a person that is being accused of battery and has already been convicted of a felony battery before, committed a felony of the third degree. Punishment for a felony of the third degree is up to five years in prison.
If you or someone in your family has been accused of committing battery, aggravated battery or felony battery it is important for you to call an experienced defense attorney. If you have been convicted of a felony battery and are now being accused of another battery charge, call a South Florida criminal defense attorney for a free consultation.

Diminished Capacity or Legally Insane?

Diminished capacity and insanity are terms often confused in criminal issues. In South Florida, when we talk about diminished capacity we are talking about a mental inability, caused by intoxication, trauma, or disease, that makes the person not accountable for their actions. This means that they were not able, due to their mental status, to distinguish right from wrong. In Fort Lauderdale, Miami, and Palm Beach, the person who is alleging a defense of diminished capacity, is trying to convince the state of Florida that at the time the committed the criminal act they were not aware or even capable of being aware of the nature of their actions.
The main difference between insanity and diminished capacity is that while insanity is a legal term that is grounds for an affirmative defense, diminished capacity is a medical term. In South Florida, while insanity may consist of a full defense in a criminal trial, diminished capacity is a way of pleading to a lesser crime.
When dealing with cases of diminished capacity or insanity, it is crucial to speak to a lawyer who is qualified and experienced. If someone you know is being accused of a crime in the counties of Broward, Palm Beach and Miami, and you believe the person was not capable of knowing the nature of their acts, you should call a South Florida criminal attorney for a free appointment.

Tickets Can Become Criminal Offenses

You may have heard the news that many stoplights throughout South Florida, including Palm Springs, West Palm Beach, Coral Gables, and Broward County have cameras attached to them that are in place to monitor red light runners, now processing automated tickets for individuals who ran red lights. However, many of these tickets have been dismissed in court, especially in West Palm Beach and Palm Springs. One woman presented her passport to prove she was out of the country when she was supposedly caught on camera running a red light in West Palm Beach. Another woman brought a note from her pastor to prove that she was part of a funeral procession when she went through the light. One man pointed out that the video clearly showed his car was in the intersection when the signal changed from yellow to red, proof that he did not run the light. It is still legal to make a right turn on red, cautiously after a complete stop, unless there is a sign that specifically prohibits this action.

These and many other automated tickets, are being dismissed, with the help of South Florida attorneys. A few individuals won by using the videos to their advantage or by presenting evidence that they couldn't have been behind the wheel, but most hired South Florida attorneys who found technical arguments. Unfortunately, for some these tickets go un-noticed and the consequences are more than some people expect. These un attended tickets get processed by the court after some time, notice is sent to the address on the vehicle plate, and soon after the person fails to appear, a warrant can be ordered for the arrest of the person and/or the persons license can be suspended without their knowledge. A situation like this one causes the clerk to enter a "Traffic Criminal" case that can create a real problem for any licensed person and hinder their livelihood as well.


For example, one South Florida attorney successfully argued that the process of these automated tickets and the methods of execution, may be un constitutional and is quite burdensome and unfair. If you find yourself unfairly receiving one of these tickets or need assistance disputing a citation, or a failure to appear has been ordered against you, please contact your South Florida attorney. We can help you, call us today at 954-761-3444. Consultation is FREE!

INCOMPETENCY IN FLORIDA CRIMINAL COURTS

Florida criminal courts, like most states, recognize the inability to understand the nature of what is going on, and actively participate in your defense, as incompetency: incompetency stops the criminal trial process. If you've been charged with a criminal act in Florida, Fort Lauderdale, West Palm Beach, or Miami, and incompetency is an issue, it can be raised under the Florida rules of criminal procedure. The rule states that at any critical stage of a criminal proceeding, the issue of competency, if raised and established, stops the criminal prosecution of the case. Incompetency to proceed is raised by your criminal defense the following way: A motion to determine competency is filed with the court in which the attorney has to certify, after due diligence and a good faith belief, that the criminal defendant is incompetent proceed. In a criminal case in Florida one is incompetent to proceed if you don't understand the charges, or the allegations, don't appreciate or understand the range of possible penalties, you don't understand the adversary nature of a criminal trial, and cannot manifest appropriate courtroom behavior. The procedure requires a court to appoint three psychologists to conduct a mental health competency examination. If two of the three concur that competency is an issue; then the judge, most likely, will follow their findings and the case stops. If the issue is one of a mental illness then it allows the state two years to restore competency. All other competency questions require a residential in-custody therapy program be imposed and the state has five years to restore competency or the case can resolve with a dismissal. For more information about the difference between insanity and competency, speak with your South Florida criminal defense attorney.

Federal Pre Trial Release in Florida’s Federal Criminal Courtrooms

The U.S. constitution makes pre-trial release, called bail or bond, a right. That right exists more in the law then for those arrested in South Florida and charged in federal court. U.S. District Courts are in Miami, Fort Lauderdale and West Palm Beach. Federal courts are for cases and controversies of limited jurisdiction in civil matters and have exclusive jurisdictions for violations of federal criminal laws. The bulk of those arrested in Florida and brought before federal judges are drug importation and distribution charges (known as trafficking in Florida courts), immigration arrests, wire fraud, money laundering and an increasing number of federal arrests for violations of our Patriots Act (terrorist related charges). If you have been arrested and charged in a federal court the first judicial officer you’ll see is a U.S. Magistrate. Magistrate’s handle all bond, bail (pre-trial release) matters. In federal court you can be held in custody for three days simply on the request of the U.S. Attorneys’ Office. This is called pre-trial detention. The statute to read is U.S.C. 3142(f), the federal “first appearance” statute. For most your detention hearing is also the first appearance hearing. Magistrates in South Florida will rarely grant release on any condition if the charges involves drug trafficking in any amount more than person use amounts, weapons charges and charges brought under the Patriots Act. In the fall of 2010 a Boynton Beach Police Officer arrested by the U.S. and charged with drug trafficking was granted bail and fled to Brazil. As a result of that the Magistrates’ are ever more skeptical of granting any pre-trial release conditions, even though the right is embedded in the Constitution. Most defendants who are granted pre-trial release are able to do it because their South Florida Criminal defense attorney worked with the Assistant United States Attorney (the prosecutor in federal courts) and came before the Magistrate with an agreed set of conditions. If you are arrested and charged in Federal court you should insist on an experienced federal criminal lawyer from the day of your arrest.

Florida’s Convicted Felons Regisitration Laws

Florida has an extensive set of statutes requiring convicted felons to register. In the past these statutes were rarely, if ever and enforced, in Miami, South Florida, Broward Fort Lauderdale and the West Palm Beach area. Things have changed! Within the last six months there's been an exponential increase in the arrests for people who violate the registration of felons statutes. Florida statute 943.0435 requires sexual offenders to register. Those persons convicted of sexually motivated or sexually related offenses have come under increased supervision and control by the Florida Department of Corrections. The prosecutors in South Florida, called the State Attorney for Dade County, and the prosecutor for Broward County(Fort Lauderdale) have increased the arrests for failure to register. The current statute makes it a felony for a person, convicted of a felony, to fail to register with the local law enforcement, or Sheriff, in the county in which they reside. If you have a felony conviction in Florida, whether from Fort Lauderdale, Miami, or West Palm Beach, you should consult with a South Florida criminal defense attorney regarding the requirements for registration. The most likely way people get caught up into the registration violation traps is at traffic stops. Be certain that your drivers’ license address is correct, and reflects the county in which you are registered. If you have a withheld adjudication, then you are not under Florida law considered a convicted felon. If you have a withheld adjudication, the felony registration requirements do not apply to you. If you contact a South Florida criminal defense attorney, in Fort Lauderdale, or Miami, he or she, can tell you from the court records the correct disposition of your final disposition. Do not rely on websites to determine if you have a felony conviction. The only place to check is with the felony court clerk in which your case was filed and resolved.

Credit Card Fraud in Fort Lauderdale and Miami, Florida

The fraudulent use of credit cards and debit cards has prompted the creation of special prosecutorial task forces. The state attorney's office in Fort Lauderdale which prosecutes in Fort Lauderdale, Broward County has a special unit just for credit card and identity theft. The state attorney's office for Palm Beach County also has a special unit for identity theft cases. In recent years the federal government has provided significant funds which local law enforcement uses to focus on credit card and identity theft matters. The US attorney's office in South Florida, which brings federal criminal indictments in Miami, Fort Lauderdale, and Palm Beach, also has increased resources for credit card and identity theft cases. Federal prosecutions are usually brought under the wire fraud statutes. For cases filed under as a credit card faud prosecutor’s file under statute 817 and 812. If you are arrested in Fort Lauderdale under the theft statute the minimum felony exposure is five years. Five years because 15 years if it's more than $20,000 in total loss, it becomes a first-degree felony for over $100,000 in losses. If you're prosecuted in Fort Lauderdale or Miami for first-degree felony the maximum prison sentence is 30 years. Because the victim is usually a bank or credit card clearinghouse the individual name which is being used is not an integral part of the prosecutor's case. Identity theft prosecutions arise not only for credit card and debit card matters but also from ATM machines.

EXTRADITION

Extradition concerns laws and treaties used to transfer criminal suspects from one sovereign nation to another for prosecution. This is not to be confused with removal proceedings by the Homeland Security Department whereby people are deported from United States because of a criminal history. Extradition is also a concern when a person is wanted by another state for prosecution. By way of example, someone who was charged in Fort Lauderdale, Broward County, South Florida with a drug trafficking or drug possession charge may be found in another state. When an individual is arrested in another state and being held for transport to Florida this process is called intrastate extradition. United States Constitution and the full faith and credit clause as well as agreements between states, called intrastate compacts, come into play in this situation. A criminal suspect can also be transferred from one county to another. When Palm Beach issues a warrant for the arrest of someone charged with murder or probation violation that individual may be found and held in Fort Lauderdale. At that point it is a matter for the Sheriff to arrange for the transfer of that individual from one county to another.


Florida's Punishment Code

Florida‘s Punishment Code
In 1988 The Florida Legislature enacted The Florida Sentencing Guidelines following the lead of the Federal government’s Sentencing Guidelines. The Legislature hoped to rationalize sentences by creating an arithmetical formula for sentencing and limited judicial discretion. Now, someone convicted of drug trafficking, or possession of cocaine, or even a probation violation, would be sentenced the same throughout the State of Florida. South Florida sends the greatest number of people to prison and has been studied for the similarity of sentencing. The sentencing guidelines, now called the Punishment Code lists each crime, from assault to witness tampering, assigns it a category or range and requires judges to sentence in accord with the punishment code. There was, and remains, at outcry against the punishment code for two reasons: firstly racial minorities are statistically over-represented in the prison population and the punishment code continues that disparity. Secondly, the individual’s need for punishment by prison sentence precludes a judge’s ability to fashion punishments that are not compliant with the legislative scheme: this often creates over-harsh sentencing and injustices. A Judge can be harsher than the code but cannot go under the code unless the judge follows a limited and prescribed number of reasons for a downward departure. Your South Florida criminal defense lawyer can explain to you the system for scoring and computing felony sentences in Florida.

Mental Capacity and A Criminal Act: Part II

To successfully mount the defense of insanity in Florida criminal courts,( Miami, Fort Lauderdale, and West Palm Beach), the accused (arrested) defendant must prove that the/she was insane at the time the criminal act occurred. Insanity before or after is not a defense. Further, that the mental deficiency must be related to the specific criminal charge. Insanity in general is not a defense to an arrest or criminal law prosecution in South Florida criminal courts. In Florida criminal law the word “sanity” addresses the issue of one's ability, at the time of the act, to understand and distinguish the difference between right and wrong. This is called the McNaughton rule. The rule goes to the ability to understand the nature and quality of a defendant's act, and its consequences. In South Florida criminal law insanity goes to one's capacity to distinguish right from wrong. For more information on defenses to crimes in South Florida, whether it be a drug offense, murder, burglary, violation of probation, or other drug-related offenses, such as possession of cocaine or possession of methamphetamine, contact a South Florida criminal defense attorney. If you've been arrested in South Florida the first thing I suggest you do is speak with a South Florida criminal defense attorney as to other legal defenses you might have, including self-defense, entrapment, and a due process argument to prevent a South Florida Criminal Court from prosecuting you for the an alleged crime in Florida.

Continue reading "Mental Capacity and A Criminal Act: Part II" »

THE BRADY BUNCH IN FEDERAL COURT

THE BRADY BUNCH IN FEDERAL COURT

The friendly antics of the Brady Bunch family and TV land has nothing to do with the realities, the cold realities of criminal proseuctions in federal courts. In the public view federal courts are where our civil and constitutional rights are preserved. It is even more common for people to believe that federal court is where state court abuses are corrected. True a generation ago but not true today. Florida State criminal courts have championed fair trial rights, and left the federal courts in the dust, mingled in the dust of the lost souls who were convicted in federal criminal courts, in many cases wrongly. Florida criminal courts, Miami Fort Lauderdale West Palm Beach, give criminal defendants the right to see evidence that exonerates them. If you are arrested for drug trafficking, or any serious felony and come before a Florida criminal Court you have the right to compel the government to turn over to you evidence that might prove your innocence. Florida criminal courts find the legal basis for these rights in a federal case called Brady versus Maryland. In it a federal court ruled that defendants have the right to information that would aid in their defense, information in the possession of the state of Florida must be turned over. Any South Florida criminal defense attorney will tell you that in Florida criminal courts you will receive a discovery package in which the government turns over to you any information they have which might aid in your defense. In federal court the Brady case has been largely forgotten and ignored by the federal rules of criminal procedure. Ask your South Florida criminal defense attorney for more information about a defendant's rights in Florida criminal courts

Can the Police Search Me for Any Reason or No Reason At All?

No. A police officer can only make a search or your person (your body, your clothes, your personal space) under one of the following three circumstances:
1. You agree to the search. Your consent cannot be forced or the product of a submission to a show of force. It must be freely given, and not the product of police bullying.
2. Officer safety. But that means a real and provable reason. It can be said that police work is always dangerous and that police officer safety is always a top and legitimate concern. True enough. But a sleeping grandma or a three month old baby are not a reasonable threat and cannot be searched. Likewise, even a fully grown adult male can’t be searched for office safety unless he does something that would create a reasonable (attach a reason) to be a threat. Officer safety must be proven before a judge will allow the things found during a non-consensual search to be used to convict you.
3. Lastly (thirdly?) After a lawful arrest.
Florida criminal lawyers live and breathe by the hundreds of cases that clarify and are fact specific to the above three paragraphs. Don’t think by understanding the basic rules you can be correct in your evaluation of a fact pattern surrounding a search. Speak with a local criminal defense lawyer before you stick your foot in your mouth, or worse, get in trouble with the law. There is no substitute for knowledge and experience and there is no end to woe from ignorance and stupidity. Ask and know. Or, better still; buy a copy of my book “CAN THE POLICE LIE TO ME?” you can buy it on amazon.com for $18.95.

What is Florida Criminal Law on “Fake” ID?

In Florida you must be 21 years of age to purchase alcoholic beverages. Once 18 it has long been 21. Of course you can serve in the Army at 18 but you can’t drink until you are 21. Some young people in Florida run afoul of the criminal laws by obtaining “fake” ID. Don’t. It is an arrest able offense; it can even be a felony!
In South Florida (Fort Lauderdale, Pompano, Miami, Davie, West Palm Beach) you can be charged with a misdemeanor if you have a fake set of identification. If you have someone’s driver’s license it is felony. A felony carries a five year prison sentence and a lifetime of grief. If you use someone else’s identification you can both face criminal charges: You can be arrested for possession of a false or fraudulent drivers’ license and your friend (brother? Sister?) can be charged with contributing to the delinquency of a minor. What to do? DO NOT display fake ID. Cool down with an ice tea, not Long Island ice tea. Life is too short and cops are too mean, thinks first and then don’t do it!

The Entrapment Defense in Drug Trafficking Cases in Florida

Entrapment is one of the few defenses which are “affirmative defenses”. In cases such as drug trafficking, and conspiracy to sell or deliver cocaine, an affirmative defense is a law created avoidance of the charges. It bars conviction.
Entrapment is based on the due process rights created in both the Florida and U.S. constitution. In Florida criminal courts a subjective and objective entrapment defense can be raised. Objective defenses are argued before the judge, without the jury, and involve allegations of outrageous police actions, such as when the police take cocaine they seized from dealers, take it to a police laboratory, turn it into crack cocaine, then release it for use in sting operations. Subjective entrapment, a jury issue, argues that the accused was not looking for or seeking to commit the crime, that the opportunity was brought to him/her by the police or an agent (confidential informant), had no history of that particular crime, and was brought into the criminal enterprise by inducements engineered by the police or a police agent (confidential informant). If you believe you have been entrapped contact a South Florida criminal defense attorney and ask for a meeting to explore the current state of entrapment law in Florida criminal courts, such as Miami-Dade, Broward, Fort Lauderdale, and West Palm Beach.

The Insanity Defense in Florida

Insanity as a defense to a criminal charge in Florida can be raised, but like any defense, such as entrapment or self defense, one must admit to the crime and then raise the defense. South Florida criminal lawyers find Florida criminal juries very reluctant to accept insanity defenses. Insanity under Florida criminal law, means that due to a mental infirmity, disease or defect the accused did not know what he/she was doing or its consequences, or, although he/she knew what he/she was doing, but did not know it was wrong. If the defendant believed what he/she was doing was morally right, then he/she is not insane, if he/she was aware that it violated societal standards or knew it was against the law.
In Florida criminal courts (Fort Lauderdale, West Palm Beach and Miami) there is a presumption of sanity. That means a criminal defendant in Florida has the burden of proving the defense of insanity. The standard of proof is by clear and convincing evidence. Clear and convincing evidence is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief, without hesitation, about the matter or defense raised. Unrestrained passion or ungovernable temper is not insanity.

A Primer on Juvenile Criminal Cases

Florida criminal courts handle juveniles in a separate criminal division. A juvenile is under eighteen years old. The prosecutor can charge a juvenile in adult court and seek adult sanctions: this is referred to as a “direct file” case. The decision is entirely up to the State Attorney for the district; Fort Lauderdale, West Palm Beach and Miami-Dade are all independent criminal jurisdictions, that means the prosecutor is elected and each prosecutor (State Attorney) sets policy for his district’s criminal courts. Fort Lauderdale (Broward County), West Palm Beach and Miami (Miami-Dade County) are all different and juveniles get treated differently, it is a matter of policy, not law. Florida criminal laws also permit judges to overrule the decision to “direct file” on a juvenile: that is to seek adult sanctions. Florida criminal laws (Section 958), the “Youthful Offender Statute” permits a Florida criminal court judge to impose a maximum six year sentence (any combination of sanctions from probation to incarceration) on a juvenile, but, the sentence must be imposed before their twenty-first birthday. If you, or a family member, has been arrested in South Florida, contact criminal defense lawyer Ralph Behr for a free consultation

Your Right to Bail is in the United States Constitution

After an arrest a detained person is brought before an impartial magistrate (a judge) and has a right to a reasonable condition of release. It is the law. The only exceptions to bail are for capital charges, armed drug trafficking, kidnapping and some federal terrorist charges. At the bond hearing you have the right to be represented by an attorney. The magistrate must set a reasonable bond. A reasonable bond is one that is possible for the individual, not some arbitrary amount or standard bond. Pre-trial release is a favored program in Fort Lauderdale, where it has been recently expanded to permit non-indigent criminal defendants to be released with GPS monitors and travel restrictions. All criminal courts in South Florida hold bond hearings 365 days a year. Miami criminal courts, both federal and Florida criminal courts, set conditions of bond that permit the posting of a guarantee by personal surety, Fort Lauderdale (Broward County) does not: there you are required to post the cash amount or have a bond agent issue a “power number” for the bond amount.

What Are Federal Criminal Courts and How Do They Differ from Florida Criminal Courts?

Our national government in Washington, D.C. duplicates many Florida criminal laws. Florida criminal laws are enforced by the State of Florida in our State criminal courts. The U.S. government enforces its own set of federal criminal laws in federal criminal courts. Criminal defense attorneys have to be licensed to appear in each court. Florida criminal courts are conducted under the Florida Rules of Criminal Procedure. Federal criminal courts have their own Federal Rules of Criminal Procedure. The rules are very different and being familiar with them is essential for criminal defense lawyers. Filing dates and times, rules of evidence, motion practice; all differ significantly. Federal criminal cases have different views of search and seizure, confessions, proper and improper police procedures than Florida criminal laws. Florida has its own constitution which differs from our U.S. federal constitution. Although Florida constitutional rights can give greater protections and safeguards from governmental reach into the lives of Florida residents it cannot lessen or diminish those rights guaranteed by our federal constitution..

Getting Hot Under the White Collar? Federal Prosecutions Go Postal !

Criminal prosecutions, like skirt heights, seem to go up and down with the economy. White collar crimes, such as money laundering, telemarketing fraud, embezzlement, counterfeiting, kickbacks and honest services fraud cases are increasing in federal court. Criminal law doesn’t change, but prosecutors in federal court focus on certain crimes when the economy changes. And things have changed. Derivatives dissolved but security fraud cases have gone up, as have other federal prosecutions. Criminal defense lawyers have seen federal court white collar crimes become an increasing focus of federal prosecutors in Miami and Fort Lauderdale. If you are a “person of interest” in a federal or state criminal inquiry, call for a consultation. Know your rights and understand the process and gain some insight into how your constitution works and how the police can twist the constitution until most criminal lawyers can’t believe we are all in the same country under the same constitution. Knowledge is power.

What to Ask When Hiring a Federal Criminal Lawyer

Here are a few questions to ask when you are interviewing to hire a federal criminal lawyer:
1. Does he/she have a PACER CM/ECF number? If the answer is “what’s a PACER CM/ECF number? Hang up the phone and call the next lawyer on your list.
2. Does he/she have a subscription to the publication ‘Florida Law Weekly Federal’, it’s expensive and most lawyers won’t pay the $500.00 yearly cost, but if he/she doesn’t read it weekly then he/she is definitely NOT on top the law and federal criminal law IS CONSTANTLY changing.
3. How many federal cases are active in his/her office? Most competent and active federal criminal lawyers have, at a minimum, five active cases in federal court. Don’t bother to ask their success at trial because most federal trials end up in conviction because federal courts have become famous for railroading defendants into convictions.

Winning in a federal criminal prosecution is only a possibility if your federal criminal lawyer is a wiz on procedure, can nail evidentiary issues hard and fast, and has earned the respect (and fear) of Assistant United States Attorneys in the local federal criminal courts. Power in Federal court is earned by fighting and winning motions and procedural issues. Federal court can be a sinkhole if your Florida criminal lawyer isn’t a real federal criminal lawyer, and that means in court, in front of judges and dealing with federal court cases in a significant number of cases. At a minimum it should be 30% of a criminal lawyer’s practice before they can be a real federal criminal lawyer and not a local lawyer trying to grab-off a case that is beyond their capabilities.

Criminal Attorneys and Federal Court

Federal criminal defense attorneys in Florida appear before the federal district courts in Miami, Fort Lauderdale and West Palm Beach. Federal criminal prosecutions require defense lawyers who are skilled in federal criminal practice, know the law and statues for federal crimes, have defended white collar crimes such as mortgage fraud, money laundering, cash transaction reporting statutes, wire fraud, federal drug trafficking and drug possession law, know the federal evidence code and federal criminal court rules. A Florida federal criminal lawyer, to be effective, should know federal criminal laws backward and forward: something that comes from years in federal criminal courts. Federal criminal lawyers learn their skills by appearing in federal criminal courts, defending those accused of federal crimes in Florida and out of Florida. [this article continues on page 2 ]

Continue reading "Criminal Attorneys and Federal Court" »

Florida Prosecutions of Mortgage Fraud: Part 14 Final

In conclusion of Attorney Ralph Behr's personal thesis on mortgage fraud prosecution:

On the other hand, this defense would not be legally cognizable under § 817.545, Fla. Stat. (2009) and two other federal statutes aforementioned.115 § 817.545, Fla. Stat. (2009) concerning violations committed during the mortgage lending process do not require a person or entity to rely or to be injured by a defendant’s fraudulent activity it is enough that “..any material misstatement, misrepresentation, or omission…” is made “…with the intention that the misstatement, misrepresentation, or omission will be relied on…”116 This statute is more aligned with two other federal statutes punishing statements or omissions on applications or forms submitted to federally approved agencies that are in the business of extending credit, 18 U.S.C. § 1010 (2009) and 18 § U.S.C. 1014 (2009). The actual submittal of these forms or applications for loan or credit advances coupled with either the “…intent that such loan or advance of credit shall be offered to or accepted…”117 or “…for the purpose of influencing in any way the action of…” any federally approved agency in the business of extending credit118 would be sufficient for a conviction under either statute.


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Florida Prosecutions of Mortgage Fraud: Part 13

§ 877.54, Fla. Stat. (2009) should be reduced to an attempt because the crime was not completed.108 The defendant reasoned the corporation “…was not deceived as a result of any false representations and issued the check in an attempt to lure her presence and facilitate her arrest.”109 The court agreed with the defendant and determined the record did “…not demonstrate reliance by the victim on the defendant’s misrepresentations.”110

Furthermore, § 877.54, Fla. Stat. (2009) and § 877.10, Fla. Stat. (2009) are similar to the mail, wire and bank fraud statutes because it is evidence of a defendant’s involvement in “…the scheme to defraud and not actual fraud that is required.”111 “No particular type of victim is required…nor need the scheme have succeeded.”112 Although the government need not prove there is any reliance or injury, it must prove beyond a reasonable doubt the evidence shows a “…willful participation in [the] scheme with knowledge of its fraudulent nature and with intent that these illicit objectives be achieved.”113 However, a defendant may have a complete defense to wire fraud, bank fraud, or money laundering negating the specific intent element of the statutes if a jury determines a defendant acted in a good faith belief his or her actions were not illegal.114

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Any use of the previous article requires written permission from Attorney Ralph Behr and from this website and its subsidiaries under State and Federal Law. DO NOT copy and use the text provided above and/or publish as your own. The document may only be used for private study or distributing among peers in paper, not on internet transmission, with no intent to make profit or sell without credit being due to the original author.

Florida Mortgage Fraud Prosecutions: Part 13

Attorney Behr's mortgage fraud prosecutions series continues with the following excerpt:

§ 877.54, Fla. Stat. (2009) should be reduced to an attempt because the crime was not completed.108 The defendant reasoned the corporation “…was not deceived as a result of any false representations and issued the check in an attempt to lure her presence and facilitate her arrest.”109 The court agreed with the defendant and determined the record did “…not demonstrate reliance by the victim on the defendant’s misrepresentations.”110

Furthermore, § 877.54, Fla. Stat. (2009) and § 877.10, Fla. Stat. (2009) are similar to the mail, wire and bank fraud statutes because it is evidence of a defendant’s involvement in “…the scheme to defraud and not actual fraud that is required.”111 “No particular type of victim is required…nor need the scheme have succeeded.”112 Although the government need not prove there is any reliance or injury, it must prove beyond a reasonable doubt the evidence shows a “…willful participation in [the] scheme with knowledge of its fraudulent nature and with intent that these illicit objectives be achieved.”113 However, a defendant may have a complete defense to wire fraud, bank fraud, or money laundering negating the specific intent element of the statutes if a jury determines a defendant acted in a good faith belief his or her actions were not illegal.114

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Any use of the previous article requires written permission from Attorney Ralph Behr and from this website and its subsidiaries under State and Federal Law. DO NOT copy and use the text provided above and/or publish as your own. The document may only be used for private study or distributing among peers in paper, not on internet transmission, with no intent to make profit or sell without credit being due to the original author.

Florida Prosecutions of Mortgage Fraud: Part 12

Compared and Contrasted Against One Another

V. DEFENSES

Unlike § 817.545, Fla. Stat. (2009) and two other federal statutes concerning mortgage fraud previously discussed, both § 877.10, Fla. Stat. (2009) and § 817.54, Fla. Stat. (2009) require reliance by a person or entity by the fraudulent activity undertaken in order for a defendant to be convicted for either statute. § 877.10, Fla. Stat. (2009) specifically states this reliance requirement,102 but § 877.54, Fla. Stat. (2009) does not.103 However, the latter’s reliance requirement is laid out in the Third District Court of Appeal case, Adams v. State, 650 So.2d 1039 (Fla. 3d DCA 1995).

In Adams, the defendant gave “…an erroneous address and social security number, and misrepresented the address of…” an unregistered company the defendant owned to obtain a mortgage loan from a corporation.104 Subsequently, the company determined the information was false and notified law enforcement.105 “The police suggested issuing the check to lure the defendant to appear.”106 After exiting the corporation’s office, the defendant was arrested.107 A jury convicted the defendant and on appeal she argued her conviction for a violation of ...

To be continued in the next posting of Attorney Behr's prosecution series...


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Any use of the previous article requires written permission from Attorney Ralph Behr and from this website and its subsidiaries under State and Federal Law. DO NOT copy and use the text provided above and/or publish as your own. The document may only be used for private study or distributing among peers in paper, not on internet transmission, with no intent to make profit or sell without credit being due to the original author.

Florida Prosecutions of Mortgage Fraud: Part 11

Attorney Behr's mortgage fraud prosecutions series will continue with this portion of the article:

Dissimilar to the Florida statute, other states require “…a pattern of residential mortgage fraud…”99 to be proven beyond a reasonable doubt before being adjudicated of a higher penalty. Other states have even set out elemental qualifications for patterns of mortgage fraud. North Carolina’s legislature requires “…five or more mortgage loans which have the same or similar intents, results, accomplices, victims or methods of commission or otherwise are interrelated by distinguishing characteristics…”100 Kentucky, Georgia, Arizona, Mississippi and Nevada describe a pattern of residential mortgage fraud “…that involves two (2) or more mortgage loans…”101 Requiring state prosecutors to prove “a pattern of mortgage fraud” ensures those persons who intend to conduct schemes to defraud persons and lending institutions are truly deserving of heightened felonies. On the other hand, by not requiring “a pattern of mortgage fraud” the Florida Legislature has not only made Florida Assistant State Attorney jobs easier, but has also allowed those persons who conduct multiple acts of mortgage fraud to escape with only third degree felony convictions as long as the scheme total does not amount to $100,000.00.

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Any use of the previous article requires written permission from Attorney Ralph Behr and from this website and its subsidiaries under State and Federal Law. DO NOT copy and use the text provided above and/or publish as your own. The document may only be used for private study or distributing among peers in paper, not on internet transmission, with no intent to make profit or sell without credit being due to the original author.

Florida Mortgage Fraud Prosecutions: Part 10

Attorney Behr's mortgage fraud prosecutions series continues with the following excerpt:

ii. State

Dissimilar to legislation by the federal government, the State of Florida and other states have specific promulgated legislation to prosecute mortgage fraud. Florida has three different statutes regarding mortgage fraud. The first two statutes are more concerned with the actual mortgage transaction while the last revolves around the process in the obtainment of a mortgage. The first statute, § 877.10, Fla. Stat. (2009) prohibits “…any person to knowingly make, issue, deliver, or receive dual contracts, either written or oral…” for the “…same parcel of real property…” one with “…the true and actual purchase price and..” and another reflecting “…a purchase price in excess of the true and actual purchase price…” used to induce mortgage investors “…to make a loan commitment on such real property in reliance upon the stated inflated value…” is guilty of a second degree misdemeanor.94 The second statute, § 817.54, Fla. Stat. (2009) concerns any person who “…obtains any mortgage, mortgage note, promissory note, or other instrument evidencing a debt from any person or obtains the signature of any person…” “…by color or aid of fraudulent or false pretenses…” is “…guilty of a felony of the third degree…”95

Lastly, the third and final statute, § 817.545, Fla. Stat. (2009) was promulgated for material misrepresentations or omissions in the “mortgage lending process.”96 § 817.545, Fla. Stat. (2009) was instituted to combat what Florida and other states have determined to be a serious problem, residential mortgage fraud.97 To battle against this serious issue of residential mortgage fraud, states have enacted legislation normally termed residential mortgage fraud acts to punish two different degrees of conduct committed during the mortgage lending process. Generally, as in other states, violations of § 817.545, Fla. Stat. (2009) are third degree felonies, however, exposure to a second degree felony under this statute is possible if “…the loan value stated on documents used in the mortgage lending process exceeds $100,000…”98 This monetary value qualifier for what Florida’s legislature considers to be more abhorrent conduct is inconsistent with other states’ mortgage fraud statutes.


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Any use of the previous article requires written permission from Attorney Ralph Behr and from this website and its subsidiaries under State and Federal Law. DO NOT copy and use the text provided above and/or publish as your own. The document may only be used for private study or distributing among peers in paper, not on internet transmission, with no intent to make profit or sell without credit being due to the original author.

Mortgage Fraud and Florida Prosecution: Part 9

Attorney Behr's mortgage fraud prosecutions series continues with the following excerpt:


18 U.S.C. § 2314 Transportation of stolen goods, securities, moneys, fraudulent State tax stamps, or articles used in counterfeiting


Under this statute, a person who enables assists or intends to enable property with a value of $5,000.00 or more into interstate commerce or foreign commerce by a scheme enabled through the use of material misrepresentations could be convicted under the statute.89

In United States v. Grintjes, 237 F.3d 876, 877 (7th Cir. 2001), the defendant a mortgage broker and his co-defendant Thomas Younk, a client who owned a real estate company allegedly obtained “…inflated appraisals of properties, use the inflated appraisals to obtain mortgages, purchase the properties for significantly less than the amount of the mortgage, and pocket the rest of the loan.”90 The defendant was indicted for “…aiding and abetting a fraudulent scheme involving the interstate transfer of funds… ”91 “Grintjes testified that he never independently inspected the properties Younk sought to finance, nor did he ever verify the appraisals.”92 He also testified that it was not uncommon in the mortgage broker industry not to inspect verify the appraisals.93

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Any use of the previous article requires written permission from AttorneyRalph Behr and from this website and its subsidiaries under State and Federal Law. DO NOT copy and use the text provided above and/or publish as your own. The document may only be used for private study or distributing among peers in paper, not on internet transmission, with no intent to make profit or sell without credit being due to the original author.

Florida Prosecution of Mortgage Frauds by Criminal Lawyer Ralph Behr: Part 8

South Florida Criminal Defense Lawyer Blog is proud to present the next installment of Attorney Behr's mortgage fraud prosecutions series:


18 U.S.C. §1956 Laundering of monetary instruments

&

18 U.S.C. §1957 Engaging in monetary transactions in property

derived from specified unlawful activity


Both statutes essentially have the same purpose of preventing persons from legitimizing proceeds obtained illegally although there are differences. 18 U.S.C. § 1956, is concerned with any financial transaction concerning proceeds of a “specified unlawful activity”73 whenever action is focused to keep the criminal activity from being discovered, or to hide the source or current possessor of the funds, or to avoid the mandatory disclosures under the Bank Secrecy Act under Title 31 U.S.C.74 Conversely, provisions of 18 U.S.C. § 1957 is applicable if a person “…knowingly engages or attempts to engage in a monetary transaction in criminally derived property of a value greater than $10,000 and is derived from specified unlawful activity…”75

In United States v. Moncrief, 133 Fed.Appx. 924 (5th Cir. 2004), both of these statutes were instituted in a case which the government claimed to be “…the largest mortgage-loan-fraud operation ever to be prosecuted.”76 The case involved Meis Enterprises which was owned and operated by the Meis family.77 Mei Enterprises was a conglomeration of several businesses operated by members of the Mei family.78 Mei Enterprises operated a construction company and several real estate companies.79 Although the assortment of companies had differing bank accounts and officers in charge, Mei Enterprises “…operated out of one common office.”80

The alleged end result of the mortgage fraud scheme was to collect “…large amounts of cash by inducing mortgage lenders to provide the Meis with loans that were $50,000 to $80,000…” over what “…it cost the Meis to purchase the real estate that served as the collateral for the loan.”81 In order to obtain the loans, “…the Meis orchestrated sham real estate transactions in which the Meis would appear to sell a particular property, which…” would overlap “…with actual sales in which the Meis would purchase, for the first time, the very same property.”82 Purportedly, the Meis first would find a property for sale and “…acting through one of their realty companies such as Hathaway Properties, would contract to purchase the property from its owner.”83

Third parties or straw buyer would serve as a temporary purchaser usually Frank Mei Sr. to complete “…a parallel sham transaction that would be used to obtain an inflated loan.”84 Mortgage brokers in one of the Mei Enterprises would falsify employment and income information on loan application to lenders.85 Eventually, Moncrief, a residential real estate appraiser became involved in the Mei scheme.86 Allegedly, Moncrief used the Mei’s formula for over inflating the value of selected properties and “…was involved in more straw buyer transactions than any other appraiser that the Meis use…”87 which exposed him to the money laundering violations.88

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Any use of the previous article requires written permission from Ralph Behr and from this website and its subsidiaries under State and Federal Law. DO NOT copy and use the text provided above and/or publish as your own. The document may only be used for private study or distributing among peers in paper, not on internet transmission, with no intent to make profit or sell without credit being due to the original author.

South Florida Mortgage Fraud Prosecution by Ralph Behr: Part 8

The next installment of Attorney Behr's mortgage fraud prosecutions series:


18 U.S.C. §1956 Laundering of monetary instruments

&

18 U.S.C. §1957 Engaging in monetary transactions in property

derived from specified unlawful activity

Both statutes essentially have the same purpose of preventing persons from legitimizing proceeds obtained illegally although there are differences. 18 U.S.C. § 1956, is concerned with any financial transaction concerning proceeds of a “specified unlawful activity”73 whenever action is focused to keep the criminal activity from being discovered, or to hide the source or current possessor of the funds, or to avoid the mandatory disclosures under the Bank Secrecy Act under Title 31 U.S.C.74 Conversely, provisions of 18 U.S.C. § 1957 is applicable if a person “…knowingly engages or attempts to engage in a monetary transaction in criminally derived property of a value greater than $10,000 and is derived from specified unlawful activity…”75

In United States v. Moncrief, 133 Fed.Appx. 924 (5th Cir. 2004), both of these statutes were instituted in a case which the government claimed to be “…the largest mortgage-loan-fraud operation ever to be prosecuted.”76 The case involved Meis Enterprises which was owned and operated by the Meis family.77 Mei Enterprises was a conglomeration of several businesses operated by members of the Mei family.78 Mei Enterprises operated a construction company and several real estate companies.79 Although the assortment of companies had differing bank accounts and officers in charge, Mei Enterprises “…operated out of one common office.”80

The alleged end result of the mortgage fraud scheme was to collect “…large amounts of cash by inducing mortgage lenders to provide the Meis with loans that were $50,000 to $80,000…” over what “…it cost the Meis to purchase the real estate that served as the collateral for the loan.”81 In order to obtain the loans, “…the Meis orchestrated sham real estate transactions in which the Meis would appear to sell a particular property, which…” would overlap “…with actual sales in which the Meis would purchase, for the first time, the very same property.”82 Purportedly, the Meis first would find a property for sale and “…acting through one of their realty companies such as Hathaway Properties, would contract to purchase the property from its owner.”83

Third parties or straw buyer would serve as a temporary purchaser usually Frank Mei Sr. to complete “…a parallel sham transaction that would be used to obtain an inflated loan.”84 Mortgage brokers in one of the Mei Enterprises would falsify employment and income information on loan application to lenders.85 Eventually, Moncrief, a residential real estate appraiser became involved in the Mei scheme.86 Allegedly, Moncrief used the Mei’s formula for over inflating the value of selected properties and “…was involved in more straw buyer transactions than any other appraiser that the Meis use…”87 which exposed him to the money laundering violations.88

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Any use of the previous article requires written permission from Ralph Behr and from this website and its subsidiaries under State and Federal Law. DO NOT copy and use the text provided above and/or publish as your own. The document may only be used for private study or distributing among peers in paper, not on internet transmission, with no intent to make profit or sell without credit being due to the original author.

Florida Prosecution of Mortgage Frauds by Criminal Lawyer Ralph Behr: Part 7

South Florida Criminal Defense Lawyer Blog is proud to present the next installment of Attorney Behr's mortgage fraud prosecutions series:


18 U.S.C. §1344 Bank Fraud

Persons who knowingly executes or makes an attempt to execute a scheme or ploy to “…defraud a financial institution; or to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution by means of false or fraudulent pretenses, representations, or promises…” may be convicted under this statute.65

In United States v. Walsh, 75 F.3d 1 (1st Cir. 1996), the defendant was under indictment for a scheme allegedly carried out “…by directing his employees to obtain 29 specific loans through the use of deceptions so that customers could purchase condominiums from Walsh and his associates.”66 The defendant along with other investors “…purchased apartment buildings or complexes, converted the property into condominiums, and sold the condominiums to customers, using the unit sales to pay off the acquisition financing.67 The defendant also usually served as a trustee representative and legal counsel for a trust set up to acquire the buildings.68 “During 1986, sales of units in one of the projects started to fall behind schedule and the trust began to have difficulty repaying its acquisition loan.”69 The defendant subsequently discovered a bank “…made mortgage loans available rapidly-with no verification of income, assets or down payments-but the loans required a twenty percent down payment and secondary financing was prohibited.”70

Along with the first failing projects, others followed suit and the defendant instructed his employees to arrange loans “…for unit purchasers and to falsify documents submitted to…” the bank “…to conceal the existence of secondary financing (and in some cases third mortgages as well).”71 Loans were eventually defaulted on and the bank “…incurred substantial losses.”72

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Knowing The Law SHOULD Be Required, Especially in Florida

A prominent South Florida defense lawyer and fellow classmate of mine from the good old days of law school at Hofstra, Norm Kent, posted a write-up on a book I recently published, Can The Police Lie To Me?, regarding laws in an easy-to-read format. I just would like to thank Norm for the free advertisement and would also like to point how the 'non-lawyer' person should have some method of obtaining information regarding the law as it is pertinent to them.

Did you know that the police can search you on the basis of someone's lie? This is true, BUT anything found under the search can be thrown out under the following tests: basis of the informant's knowledge, veracity, credibility, reliability, and totality of the circumstances.

Don't be intimidated by anyone and especially the police, if you are a legal citizen in your actions. The book also has many other important pieces of information that you might be interested in learning.

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Is Having a Board Certified Lawyer Important?

An overlooked quality that one should seek out in a criminal defense attorney is the rigorous qualification of being Board Certified. Certification is the highest level of evaluation conducted by The Florida Bar pertaining to the experience and competency of an attorney in areas of law that are recognized for certification by the Supreme Court of Florida. During certification the bar examines the attorney's skill, special knowledge, and proficiency in their area of law, as well as other areas of law, including the ethics and professionalism in practice.

There are only 23 Board Certified Criminal Trial lawyers in Broward County, all of varying ages, backgrounds, and knowledge bases. Choosing the one right for you is pivotal if you wish to win any court case you engage in. You want one with insight, thoroughness, aggressiveness, and experience.

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