Citizen Aware Of Police Presence Is Seized For Fourth Amendment Purposes - Supreme Court of Florida

On Thursday, the Supreme Court of Florida released its decision in G.M., etc. v. Florida (SC08-1102) and concluded "that flashing lights are an important factor but not the only one judges must consider when deciding if police made a show of force before they suspected a crime."  [See Miami Herald here].  You can also read a story in the Herald Tribune here.

The court affirmed in part and reversed in part the Third District's opinion in G.M. v. State, 981 So. 2d 529 (Fla. 3d DCA 2008), which had certified conflict with Armatage v. State, 954 So. 2d 669 (Fla. 1st DCA 2007); Koppelman v. State, 876 So. 2d 618 (Fla. 4th DCA 2004); Errickson v. State, 855 So. 2d 700 (Fla. 4th DCA 2003); Young v. State, 803 So. 2d 880 (Fla. 5th DCA 2002); Siplin v. State, 795 So. 2d 1010 (Fla. 2d DCA 2001); Hrezo v. State, 780 So. 2d 194 (Fla. 2d DCA 2001); Brooks v. State, 745 So. 2d 1113 (Fla. 1st DCA 1999).  Justice Pariente concurred in part dissented  in part and Chief Justice Quince joined her opinion.

The opinion stated:

It strains the bounds of reason to conclude that under these circumstances, a reasonable person would believe that he or she was free to end the encounter with police and simply leave. See Mendenhall, 446 U.S. at 554. Moreover, it would be both dangerous and irresponsible for this Court to advise Florida citizens that they should feel free to simply ignore the officers, walk away, and refuse to interact with these officers under such circumstances. Instead, as a matter of safety to both the public and law enforcement officers, we conclude that a citizen who is aware of the police presence under the specific facts presented by this case is seized for Fourth Amendment purposes and should not attempt to walk away from the police or refuse to comply with lawful instructions.

However, that did not end the discussion.  The trial court's must determine when the suspect actually became aware of the police lights.  In this case, the court noted:

When asked about his conduct when he first observed Officer Smith at the window, G.M. replied, “I had marijuana in my lap and I was rolling.” The police vehicle was positioned behind the parked vehicles, and G.M. was seated with his back toward the unmarked vehicle and his head lowered. It is logical to conclude from this evidence that G.M. did not see the emergency lights at that time, nor was he aware of the police presence until Officer Smith actually appeared at the window beside him. G.M.‟s conduct is inconsistent with a person who has observed police lights and the presence of law enforcement. G.M. did not place the marijuana in his mouth until after Officer Smith appeared at the window and identified himself. If G.M. had been aware of the lights or the police presence, logic dictates that he would have attempted some furtive action before Officer Smith appeared at the car window, and the officer would not have seen and smelled the smoke or found G.M. with the marijuana in plain view. Therefore, our Fourth Amendment analysis of when G.M. was seized is based upon a conclusion that G.M. was not aware of the activated police lights and did not become aware of the police presence until Officer Smith actually appeared at the window of the vehicle in which he was seated.

Broward Judge Sentences Eric Kurt Patrick To Death

As reported it the SunSentinel and Palm Beach Post, Broward County "Circuit Judge Ilona Holmes imposed the death sentence today" in the Eric Kurt Patrick case.  Based upon the articles, Mr. Patrick admitted to targeting gay men after his release from a nine-year prison sentence. Patrick was sentenced "to death for hog-tying, beating, strangling and robbing a 72-year-old man in Oakland Park."  In June, the jurors in his trial voted 7-6 to recommend the death penalty.  For an article in the SunSentinel about the jury recommendation see here.  An article in the Palm Beach Post at the time of his February conviction can be found here.   The Broward Sheriff Office issued a press release at the time of his arrest which can be found here.

FCC Investigating Google Voice

The FCC has started a probe of the Google Voice service.  Google Voice was previously discussed here and here.  I find it to be a very useful service.  You can visit the Google Voice Blog here and the Google Voice homepage here.  An article in the Wall Street Journal article can be found here.  This is the result of AT&T's complaint to the FCC about Googlve Voice whic was discussed here.  Here, PC World believes AT&T will "make peace with google."  The letter from the FCC is below, which interestingly cites to Google's Public Policy Blog, and a response from Google's attoreys can be found here in a blog post titled "Sex, conference calls, and outdated FCC rules."

The Google Voice logo above is a trademark of Google, Inc.

Death Warrant Signed For Execution Of Paul Beasley Johnson

On Wednesday, Governor Crist signed a death warrant for the execution of Paul Beasley Johnson.  The execution is scheduled to occur on November 4, 2009.  Johnson was convicted for the 1981 muders "of a cab driver, a good Samaritan who gave Johnson a ride and a deputy in Lakeland." [See Post on Politics]. 

You can view the docket for Mr. Johnson's 13 appeals to the Florida Supreme Court here.  The lone active appeal can be seen here.  The Florida Supreme Court's opinion in case number No. SC01-2182 can be found here. 

Johnson v. State, 438 So. 2D 774 (Fla. 1983): Affirming death sentence.

Johnson v. Wainright, 498 So. 2D 938 (Fla. 1986): Granting petition for habeas corpus and ordering new trial.

Johnson v. State, 608 So. 2d 4 (Fla. 1992): Affirming death sentence.

Johnson v. State, 769 So. 2d 990 (Fla. 2000): Affirming denial of postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850.

Johnson v. Moore (Fla. 2002): Denying habeas corpus petition.

The scheduling order entered by the Florida Supreme Court is below:

Warrant Schedule

Jessica Lunsford Killer John Couey Died On Death Row

A motion to dismiss was filed in the John Evander Couey case because Mr. Couey has died.  [See here.] 

Mr. Couey was convicted of first-degree murder by asphyxiation of Jessica Lunsford, burglary of a dwelling with a battery, kidnapping of a child under 13 with intent to commit a sexual battery, and sexual battery on a child under 12.

You can see all prior filings with the Florida Supreme Court in this case here.

New FTC Rules On Blogs, Twitter, Online And Celebrity Endorsements

The FTC issued new rules this week relating to blogs. Articles in the New York Times can be found here and here.  The New York Times said:

the Federal Trade Commission has now promulgated guidelines that compel celebrities and bloggers and those horror hybrids, blogger-celebrities, to reveal when they are compensated for any association with products.

Think of poor Gwyneth Paltrow! Her weekly GOOP newsletter is filled with heartfelt recommendations of services, products, experts and restaurants. This means one free garganelli at Babbo and, blammo: the F.T.C. may clap her in what are most likely non-hypoallergenic shackles. Every product-related Twitter comment and blog post must now be annotated with legalese.

And the other article:

The new regulations are aimed at the rapidly shifting new-media world and how advertisers are using bloggers and social media sites like Facebook and Twitter to pitch their wares.

The F.T.C. said that beginning on Dec. 1, bloggers who review products must disclose any connection with advertisers, including, in most cases, the receipt of free products and whether or not they were paid in any way by advertisers, as occurs frequently. The new rules also take aim at celebrities, who will now need to disclose any ties to companies, should they promote products on a talk show or on Twitter. A second major change, which was not aimed specifically at bloggers or social media, was to eliminate the ability of advertisers to gush about results that differ from what is typical — for instance, from a weight loss supplement.

Additionally, the FTC Guideline Endorsements are below.

Ftc Guidelines Endorsements

Supreme Court of Mississippi Issues Important Insurance Opinion Relating To Hurricane Katrina Damage - Corban v. USAA

In Corban v. United Services Automobile Association a/k/a USAA Insurance Agency (NO. 2008-IA-00645-SCT), the Supreme Court of Mississippi issued an important decision relating to an insurance claim filed by a Long Beach, Mississippi resident whose home sustained damage during Hurricane Katrina.  An article in the Sun Herald can be found here.  It looks as though it is being billed as a win for the insurer by some and the insured by others.  However, the Sun Herald article probably has it right when they quote "Joseph Lavitt, a Berkeley Law School professor" who said "the Corbans' battle is far from over. Either party may yet prevail under today's ruling."

No reasonable person can seriously dispute that if a loss occurs, caused by either a covered peril (wind) or an excluded peril (water), that particular loss is not changed by any subsequent cause or event. Nor can the loss be excluded after it has been suffered, as the right to be indemnified18 for a loss caused by a covered peril attaches at that point in time when the insured suffers deprivation of, physical damage to, or destruction of the property insured...The insured’s right to be indemnified for a covered loss vests at time of loss. Once the duty to indemnify arises, it cannot be extinguished by a successive cause or event...The same principle applies in reverse. In the case of a loss caused by an excluded peril, that particular loss is not changed by any subsequent covered peril or event. Nor can that excluded loss become a covered loss, after it has been suffered.

***

The ACC clause applies only if and when covered and excluded perils contemporaneously converge, operating in conjunction, to cause damage resulting in loss to the insured property

***

Thus, a finder of fact must determine what losses, if any, were caused by wind, and what losses, if any, were caused by flood. If the property suffered damage from wind, and separately was damaged by flood, the insured is entitled to be compensated for those losses caused by wind. Any loss caused by “[flood] damage” is excluded. If the property first suffers damage from wind, resulting in a loss, whether additional “[flood] damage” occurs is of no consequence, as the insured has suffered a compensable wind-damage loss.  Conversely, if the property first suffers damage from flood, resulting in a loss, and then wind damage occurs, the insured can only recover for losses attributable to wind.

***

The ACC clause is inapplicable here. All “direct physical losses” under Coverages A, B, and C which are caused by wind are covered. All “direct physical losses” under Coverages A, B, and C which are caused by “[flood] damage” are excluded. Any “[flood] damage” losses to which a covered peril (in this case, wind) “contribut[ed] concurrently” are excluded.

Florida Supreme Court Oral Argument Press Summaries - October 2009

Press summaries for cases being argued before the Florida Supreme Court this month are below and can be found here:
Supreme Court of Florida Oral Argument Press Summaries

Third District Reverses Fee Award For Insufficient Notice - $31,000 In Fees For Default Judgment

In 1445 Washington Limited Partnership v. Lemontang (3D09-21), the Third District reversed the trial court's award of attoreys' fees in the amount of $31,000 after only eight days notice.  The Third District held it was insuficient notice to prepare for an evidentiary hearing and that no evidence was offered to support the $31,000 amount for the entry of a default judgment.  The court stated:

Here, the partnership was not afforded reasonable notice or an opportunity to be heard before the trial court awarded attorney’s fees. Lemontang served the motion for attorney’s fees and the notice of hearing at the partnership’s place of business only a few days before the scheduled hearing. This left the partnership with insufficient time to prepare for an evidentiary hearing. Additionally, the trial court’s order awards Lemontang’s counsel $31,500 in fees without stating what, if any, evidence Lemontang presented to prove that the amount was reasonable for a simple default action.

*Disclaimer: Terrance "TW" Anderson and/or GrayRobinson, P.A. were involved in the above-referenced action.