In the first case, the defendant was pulled over by police for a routine traffic stop.  The officer had a trained K-9 with him and noticed that the driver of the truck was shaking and breathing rapidly.  The driver refused to give his consent for a search of the truck so the officer walked his K-9 dog around the vehicle’s exterior.  The dog alerted and a search of the truck revealed ingredients for making methamphetamine.  The defendant’s criminal defense attorney moved at trial to suppress evidence of the drug ingredients and claimed that the search was a violation of the Fourth Amendment.  The motion was denied.  The Florida Supreme Court agreed with the trial court and the U.S. Supreme Court affirmed the conviction, finding that the dog’s alert outside the vehicle was sufficient justification for the search of the truck.

The second case involved the use of a dog at a private residence.  Police in Miami arrived at a house they believed was being used to grow marijuana.  Without getting a warrant, police walked a K-9 up to the front porch of the house.  The dog alerted to the presence of drugs and the officers used that alert to get a search warrant.  A later search of the house led to the discovery of marijuana.  Unlike the previous case, decided a month earlier, the Court held that the actions of police did constitute a search under the Fourth Amendment and that the search was unreasonable because the police did not have probable cause before the dog alerted on the house.  Even though police did not actually enter the home, the Court found that the porch was part of the home itself for Fourth Amendment purposes.

The author is a Jacksonville criminal defense attorney and represents individuals charged with a crime in state, Federal and military courts.

Gideon was forced to defend himself at trial and despite his claim of being innocent, he was convicted and sentenced to the maximum term of five years in prison.  The primary evidence against him was the testimony of one witness who testified that he saw Gideon leaving the pool hall with a wine bottle and money.  From his jail cell, Gideon handwrote a letter appealing his case to the U.S. Supreme Court after the Florida Supreme Court denied his claim for relief.  Gideon argued that his constitutional rights were violated by the denial of his request for an appointed attorney.  Ironically, Gideon was appointed an attorney to represent him during the appeal and that lawyer was Abe Fortas, a future justice of the Supreme Court.

The Supreme Court agreed with Gideon and ordered a new trial, this time with the assistance of a trial lawyer.  At his second trial, Gideon’s lawyer impeached the testimony of the sole witness against Gideon.  After deliberating for one hour, the jury returned a verdict of not guilty.

Many are familiar through TV crime dramas or movies with the famous Miranda warnings.  What is not always understood about the rule first announced in 1966 by the Supreme Court is the limitations on the rule and the possible remedy if there is a violation of the rule by the police.  There are also significant distinctions between Miranda and the rights a military suspect is entitled to under Article 31, a rule that predates the Miranda decision by over a decade.  The biggest limitation on the Miranda rule is that a suspect must be in custody to trigger the requirement to advise them of their rights.  A person is considered to be in custody when a reasonable person in the same circumstances would not feel that they were free to leave.  Assuming a civilian defendant was in custody and was subjected to questioning by law enforcement without first being advised of their rights, the remedy is the exclusion of the incriminating statements at trial.  A violation, however, does not mean that a criminal prosecution cannot continue if there is other evidence a crime was committed.

By comparison, Article 31 requires that anyone who is subject to the UCMJ, whether or not they are a designated law enforcement officer, advise a military suspect of the nature of the allegation, that the person has a right to remain silent, and that anything they say may be used as evidence against them regardless of whether the suspect is in custody.

A recent published decision from the Eleventh Circuit Court of Appeals illustrates this distinction in the context of a child pornography prosecution of an active duty Navy member in Federal court.  The defendant was charged in Federal court with violating federal child pornography laws after his ex-wife found images of child pornography on his personal computer that she took when she moved out of the house.  She turned the computer over to agents from the Naval Criminal Investigative Service (NCIS) who sent an agent to his workplace to interview him.  The defendant was told that he was not in custody and he was not handcuffed or retrained.  Prior to questioning, the agent advised the defendant of his Article 31 rights using a standard military form.  After acknowledging his rights, the defendant then made incriminating statements that were later introduced in evidence after his motion to suppress the statements was denied.

The basis of the defendant’s motion to suppress his incriminating statements was that the waiver form he signed did not satisfy the Fifth Amendment and Miranda because the military form was incorrect in describing his right to an appointed civilian attorney if he could not afford one.  The court did not address the issue of whether he was in custody because it found that even if he was not free to leave, the military form reasonably and adequately conveyed the Fifth Amendment and Miranda rights even if it did not mention those rights by name.

Before trial, the criminal defense attorney filed a motion to suppress evidence of the drugs as an unlawful search and seizure and argued that the color inconsistency alone was not a sufficient basis to justify the investigative stop of the vehicle.  During the hearing on the motion, the officer admitted that the only thing out of the ordinary was the color of the vehicle being different from the registered information on file with the Department of Highway Safety and Motor Vehicles.  The trial court denied the motion and the defendant was convicted and sentenced to six years in prison.

Concluding that changing the color of a vehicle is not itself illegal and that the State does not require an owner to report a change in a vehicle’s color, the appeals court held that the color discrepancy alone was not a sufficient basis to justify an investigative stop and that evidence of the drugs seized should have been suppressed.

If you have questions about a criminal law matter, contact an experienced Jacksonville criminal defense attorney to discuss the specific facts of your case.

The facts of the case were that an active duty military member was questioned by civilian law enforcement officials after he reported that his two minor children had been kidnapped.  During the initial stages of the civilian investigation, the accused made two statements that turned out to be false.  The court held that in order to determine whether a false statement is official, the critical question is whether the statement related to the official duties of either the speaker or the hearer and whether those official duties fell within the scope of the UCMJ.  Clearly, if the member makes the false statement while in the line of duty, it will be an official statement.  Likewise, if the statement is made to another military member carrying out a military duty or to a civilian who is performing a military function (for example, an NCIS or CID agent), the statement will be considered an official statement.  In this case, however, the accused member made the false statements to a civilian law enforcement official who was acting in a purely civilian capacity and the accused was not in the line of duty at the time the statements were made.  As a result, the court found that the evidence was not legally sufficient to support a finding of guilty of making a false official statement under Article 107.

If you have a question about your military justice case, contact an experienced military defense lawyer.

The consequences of failing to obtain or losing one’s security clearance can be severe as it will likely lead to your termination from Federal employment.  In addition, the government could bring criminal charges for submitting a false statement under the U.S. Code.  The maximum possible punishment for this offense is 5 years in prison and a $250,000 fine.  If the government attempts to revoke your clearance, you will receive a letter from the agency involved.  This letter will detail the basis for the government’s proposed action and will explain the rights you have in connection with the process.  You will first have the opportunity to submit written matters in rebuttal to the proposed action.  This is your first chance to challenge the factual basis of the proposed revocation and you should take advantage of this opportunity to correct any inaccurate statements and provide any supporting documentation.  While you can do this without an attorney, the assistance of an experienced national security lawyer may assist you in the process.

There are several reasons why an individual’s application may be denied or why an existing clearance may be revoked.  The reasons include:  drug involvement, sexual behavior, other criminal conduct, foreign influence or preference, personal conduct, alcohol or drug involvement, and emotional, mental or personality disorders.  The most common reason for security clearance revocations is for financial reasons.  Essentially, the concern is that if an individual is in significant debt, that person may be more susceptible to bribery in order to satisfy outstanding debts.  With the economic downturn of the last several years, many honest employees have had to defend their clearances as credit card debt and housing foreclosures have escalated.

The Application Process

If you are submitting your first clearance application or seeking renewal of an existing clearance, the first step in the process is completing the SF-86.  The form is completed on-line today and it can be a tedious process to gather all the required information and complete the questionnaire accurately.  The applicant will then be interviewed personally by an investigator, usually a contractor hired to conduct the investigations.  The investigator will also interview your references, run a credit and criminal background check, and verify the information you provided in your application.  If all goes well, your clearance will be issued, generally within six months of your application.  However, if things do not go well, you may receive a notice of the government’s intent to deny your clearance.  This letter will contain what is known as a Statement of Reasons (SOR) that details the specific reasons for the denial.  As mentioned above, you will then have the chance to submit rebuttal materials for consideration.

The Appeal and Hearing Procedure

If you have received notification that the government is attempting to revoke your security clearance, you will be advised of the hearing procedure by your respective adjudication agency.  The agency involved will depend on your employer.  An Administrative Judge presides over the hearing and the record of the hearing will be transcribed by a court reporter.  The government may or may not be represented by a lawyer and you have the right to have a lawyer represent you during the hearing.  The procedure is similar to a civil or criminal trial with opening statements, direct and cross examination of witnesses, presentation of evidence, and closing argument.  There is, however, no jury and the judge will make a recommendation to the agency based on the evidence presented.  The hearing is generally held in the geographic area of your employer but it may be held via video teleconference with the judge participating from another location.  After the hearing, the judge will prepare a recommended decision and forward it to the agency that will make the final decision.

If you have concerns over your security clearance or have been notified that the government is seeking to revoke your clearance, you should contact an experienced security clearance attorney to discuss the specific facts of your case.

The alteration of the chemical compounds presents challenges to criminal prosecutors who must prove that the substance actually contains one of the banned ingredients.  Nearly all of the states and the Federal government have some ban on chemicals used in the substances.  The Federal government is seeking to add to the number of chemical structures that would be illegal.

The military generally has a broader prohibition on the use of such substances as service regulations prohibit the use of any controlled substance “analogues” such as designer drugs, natural substances, or chemicals, that is used with the intent to induce “excitement, intoxication and stupefaction of the central nervous system.” Before the chemical compounds used in Spice were listed as controlled substances under the Federal Controlled Substances Act, such cases were usually prosecuted as an orders violation under U.C.M.J. Article 92.  As a result of the alteration of the compounds, the military may well go back to charging this offense as an orders violation to avoid the necessity of proving the specific compound in a particular sample included one of the banned compounds.

If you are being investigated or have been charged with using or possessing an illegal drug, you should consult with an experienced criminal defense attorney to discuss the particular facts of your case.

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As previously discussed in this post, non-vessel operating common carriers (NVOCCs) licensed by the Federal Maritime Commission (FMC) may now utilize an exemption from the requirement to publish rates in a tariff by entering a Negotiated Rate Arrangement (NRA) with shipper customers.  This option may result in significant savings in tariff publication expenses and increased confidentially assuming the NVO meets certain conditions detailed below.

As background, the FMC’s regulations implementing the Shipping Act previously required all NVO’s to publish rates in a tariff.  Many in the ocean transportation industry questioned the continued utility of tariffs in today’s modern shipping environment.  Maintaining an up-to-date tariff with all rates covering all services, cargo and ports can prove a challenging and expensive undertaking.  In addition, violations of the tariff publication rules could subject an offender to a maximum penalty of $30,000 per knowing and willful violation.

In April 2011, a final rule became effective authorizing the use of NRAs.  An NRA is a written and binding arrangement between a shipper and a licensed NVO to provide a specific transportation service between origin and destination for a stated quantity of cargo.  The transportation may occur on and after a particular date or within a specified time period.  If an NVO uses a NRA and meets the conditions described below, it is exempt from publishing its rate in a public tariff.

As a threshold issue, in order to use an NRA the NVO must first be licensed by the FMC.  Second, the NVO must post a prominent notice in its rules tariff and bill of lading that the rate is pursuant to a NRA.  Third, the NVO must provide the public with free electronic access to its rules tariff that states it will use NRAs.  A rules tariff is still required but the expense and maintenance required for this is significantly less than that for a full rates tariff.  Fourth (and a key requirement), the NVO and the shipper customer must agree to the NRA in writing before the cargo is received for shipment.  While there is no specific format required by the FMC to document the agreement (a detailed email is sufficient so long as it indicates confirmation and consent of both the NVO and the shipper), it should include all the details of the shipment.  Finally, the NVO must keep documentation of the NRA on file for 5 years and must make that documentation available promptly to the FMC if requested.

Eric Roper is a former trial attorney with the FMC’s Bureau of Enforcement and currently holds the rank of Commander in the Reserve Component of the U.S. Navy’s Judge Advocate General’s Corps.  His practice includes representing clients in the maritime transportation industry.

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The military continues to target and prosecute service members under the Uniform Code of Military Justice (UCMJ) who are accused of using or selling Spice, a type of synthetic marijuana.  The continued emphasis on this type of prosecution in the military serves as a reminder of the importance of seeking the immediate assistance of a criminal defense lawyer if you are questioned or suspected of having used Spice or any other controlled substance.

Many media articles have recently reported the results of Navy investigations in San Diego that led to 64 sailors being disciplined and processed for administrative separations from ships assigned to the Navy’s Third Fleet.  Similar cases have been reported at other military commands around the country including the service academies.  Although many of the media reports state that the accused members “will be” kicked out of the military service under a zero-tolerance policy, all military members who are accused of a criminal offense have rights afforded to them under the UCMJ and applicable service regulations.  Any reference to zero-tolerance refers to the policy of all the military services to initiate administrative separation proceedings for members who are accused of unlawfully using drugs.  It does not, however, mean that the members will automatically be discharged from the service.

If you are suspected and questioned about the wrongful use of any controlled substance, you are first entitled to remain silent and to consult with a criminal defense lawyer before answering any questions from law enforcement or command security personnel.  Although Navy and Marine Corps members assigned to or embarked on a vessel do not have the right to refuse non-judicial punishment (NJP), they do have the right to an administrative separation board and to representation by a criminal defense lawyer if the military attempts to separate them with an other than honorable (OTH) discharge.  If you are notified of an administrative separation for drug abuse, you should not waive any of your rights, including the right to the board, before you talk with a defense lawyer.

If you have questions about a case involving Spice or any other controlled substance, you may contact the Law Office of Eric Roper for a free, confidential initial consultation.