WELCOME TO THE OFFICIAL RICHARD E GERSTEIN JUSTICE BUILDING BLOG. THIS BLOG IS DEDICATED TO JUSTICE BUILDING RUMOR, HUMOR, AND A DISCUSSION ABOUT AND BETWEEN THE JUDGES, LAWYERS AND THE DEDICATED SUPPORT STAFF, CLERKS, COURT REPORTERS, AND CORRECTIONAL OFFICERS WHO LABOR IN THE WORLD OF MIAMI'S CRIMINAL JUSTICE. THIS BLOG HAS BEEN CALLED "THE DEFINITIVE BLOG ON MIAMI CRIMINAL LAW" BY THE NY TIMES, THE WASHINGTON POST, THE POPE, AND DONALD TRUMP WHO ALSO ONCE SAID IT WAS "REALLY GREAT". POST YOUR COMMENTS, OR SEND RUMPOLE A PRIVATE EMAIL AT HOWARDROARK21@GMAIL.COM

Thursday, July 15, 2010

THIRD DCA ROUNDUP-BONUS SUPREME COURT CASE EDITION.

Because after all, this is a legal blog and not a nutrition blog. You wanted a legal discussion? You got it.

Just Do the right thing Reemberto.....
In McDonald v. State, the defendant was convicted and sentenced as a GORT (trivia Q- which classic SCFI movie from the 50's has a robot named Gort? Bonus Q- what are the words in that movie that must be told to Gort to save the earth? Hint. Ask Klatu. )
He filed a rule 3.850 challenging his eligibility as a GORT offender and the state confessed error. The case was remanded and the defendant was sentenced without the GORT sanctions. Fast forward to his release and he is told he must register as a repeat offender which he clearly was not. He filed a motion before Judge Diaz and inexplicably, it was denied. Not any more.


There were six criminal opinions released on July 14. Five of them are one line affirmed opinions with a cite. McDonald was the only written opinion of substance. Must be a lot of Judges on summer sabbatical on the campus of FIU.

BONUS FLORIDA SUPREME COURT DECISION:

QUERY: Does the reading of Miranda warnings by a police officer during an otherwise consensual encounter turn that encounter into a seizure under the 4th Amendment?

The 2nd DCA said "yes", the 4th DCA said "no" , (the 3rd DCA questioned the viability of the 4th amendment anymore and chastised the officer for reading Miranda rights when a confession is clearly covered these days under the "inevitable discovery once they beat him long enough" rule.) and the Florida Supreme Court said........


In Caldwell v. State, that reading Miranda warnings does NOT turn a friendly chat with Officer Fluffy into a seizure under the 4th Amendment.

We note from the outset the divergent positions taken by the two opinions certified to be in conflict. For its part, the Fourth District seems to have concluded that as a per se matter, an officer‟s reading of Miranda warnings during an otherwise consensual encounter will always result in a Fourth Amendment seizure. See Raysor, 795 So. 2d at 1072. By contrast, the Second District has reasoned that because the warnings are intended to be a protective measure, Miranda warnings given during a consensual encounter may contribute to a seizure finding within the totality-of-the-circumstances framework. See Caldwell, 985 So. 2d at 605. Thus, we are presented with two questions of law. First, does the reading of Miranda warnings result in a per se seizure under the Fourth Amendment? Second, if the first question is answered in the negative, what impact do the warnings have within the totality-of-the- circumstances/reasonable person analysis set out in Mendenhall?...


In Popple v. State, 626 So. 2d 185 (Fla. 1993), this Court identified three levels of police-citizen encounters. The first level, a “consensual encounter,” involves minimal police contact and does not invoke constitutional safeguards. During a consensual encounter, an individual is free to leave at any time and may choose to ignore the officer‟s requests and go about his business. Popple, 626 So. 2d at 186. The second level is an “investigatory stop,” during which an officer “may reasonably detain a citizen temporarily if the officer has reasonable suspicion that a person has committed, is committing, or is about to commit a crime.” ...


The issue we must resolve in this case is whether Officer Crisco‟s actions transformed what began as a first-level consensual encounter into a second-level investigatory stop. See Popple, 626 So. 2d at 186....


We emphasize that Miranda warnings are not required in any police encounter in which the suspect is not placed under arrest or otherwise in custody under Ramirez. See McCarty, 468 U.S. at 440 (noting “the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda”)...


We first address whether Miranda warnings, as a per se matter, will always

transform a consensual encounter into a seizure under the Fourth Amendment...

As we noted in G.M., “[t]he United States Supreme Court has consistently maintained that per se rules are inappropriate in Fourth Amendment analyses of whether a „seizure‟ has occurred.” 19 So. 3d at 978...


In accordance with the cases discussed above, we hold that to the extent the Fourth District determined that the mistaken administration of Miranda warnings results in a seizure as a matter of law, its conclusion was error. The proper test is whether, based on the totality of the circumstances, a reasonable person would feel

free to end the encounter and depart. While an individual act on the part of an officer may constitute a show of authority that contributes to a seizure finding, we again reject the notion that any single factor, taken alone, will be conclusive in every case in which it appears

Having rejected the Fourth District‟s conclusion that Miranda warnings will always result in a seizure during an on-the-street police encounter, we must determine to what extent, if any, Miranda warnings increase the coercive nature of such an encounter...


Miranda warnings are a formality of arrest and are required only at the time of an arrest or prior to custodial interrogation. Further, the warnings are associated in the public mind with the spectacle of an individual being placed under arrest. Therefore, it is not unreasonable to conclude that an individual who is given Miranda warnings during what begins as a consensual encounter may interpret those warnings as a restraint on his or her freedom....


Based on our above discussion, we believe that the reading of Miranda warnings during a consensual police encounter might add to the coercive nature of that encounter under at least some circumstances. ...


Further, we hold that Miranda warnings do not result in a seizure as a matter of law. While we do not discount that possibility that Miranda warnings may increase the coercive atmosphere of a

police-citizen encounter outside the context of a custodial interrogation, we find that the warnings did not result in a seizure in this case.


Rumpole says: We're going to form the Lawyers for Per Se Rules club. Who's in?






22 comments:

Anonymous said...

The Day the Earth Stood Still

-What's my prize Rump? You got a van? SFL refuses to lend his out.

Rumpole said...

You gotta answer the bonus question. In the original- not the crapy remake- when Klatu is in the hospital he tells his earth friend he has to go see Gort and tell him certain words or Gort will destroy the earth. Answer that and I'll see about SFLs Van.

The Devil's Advocate said...

The Day the Earth Stood Still - Klatu Barata Nikto

Anonymous said...

Klatu benito nitckto
DS
ps it is not in the hospital but the cab ride that Klatu (Micheal Renee) tells her he is afraid what GORT could do, he could destroy the earth)
pss what TV show did the kid in the orginal movie appear in ?

Anonymous said...

"Klatu Barada Nikto" was the phrase Patricia Neal was required to say to Gort at Michael Remy's request to save the world.

Anonymous said...

'Klatu Verata Nictu'

BTW- what was so wrong with the remake?

Anonymous said...

Klatu barrata Niktu

Anonymous said...

Klaatu barada nikto.....

Anonymous said...

Give us something more challenging Rump.

Anonymous said...

"Klaatu barada nikto"

Anonymous said...

Team Merrigan's lawsuit fails a second time. Judge Garrison throws out complaint to eject Golburgh from the ballot.

Rumpole said...

The phrase was indeed "KLATU BARRATA NICTO" and in answer to the question about what was so wrong with the remake was that I waited the entire movie for the classic words that saved the earth and they cut the whole scene out. It ruined the movie for me.

fake thomas the train said...

Blecher=Sir Toppem Hat.

Anonymous said...

Rump can you look into this whole Fast Freddy Moldovan/Alex Michaels scheme to pack the bench with "their" kind of judges? And while you're at it, check out their Sicilian messenger boy Ray "Rocket" Rodriguez a/k/a "Ray-Ray", a/k/a "I'll take you down and ruin your day Ray".


PS Blecher=Sir Toppem Hat.

hipster dofus said...

It's the new hip way to end your comment!!!
Blecher=Sir Toppem Hat- becomes....

B=STH.

Try it. Everyone in the pool!!

Anonymous said...

What a long friggin hot wasted week. They should close the courthouse for the summer except for arraignments and jail trials.


Oh yeah, B=STH..

Hey, it is kinda cool.

Anonymous said...

Abe Laeser may lose his job as chief special master in Miami Beach. Looks like he's pissing off lobbyists and politicians.

http://www.miamiherald.com/2010/07/16/1734209/miami-beachs-chief-judge-may-lose.html

Anonymous said...

The stupidest blog comments of the year.

Anonymous said...

Does Blecher even practice law anymore? I haven't seen him in a courtroom in about 2 years.

Anonymous said...

I agree with closing the courthouse in the summer months except for arraignments and jail trials. Also loosen up the dress code, no jackets during summer months!!! If not, what the hell does the 8th Amendment stand for??

Anonymous said...

move over cat killer!

http://www.miamiherald.com/2010/07/17/1734509/aventura-man-accused-of-having.html

sir toppham blecher said...

You know, I checked it out on you tube and he does look exactly like sir toppham hat.