Note on citations:  An attorney went on a DCA's website to find an opinion and it was not listed on the day cited in my blurb.  I put the date of the FLW volume in my cites on these things, not the date of opinion.  I write these for my own research and it allows me to quickly find the written opinion in my FLWs.  Sorry about the confusion JF.

CRAWFORD ISSUE – DISCOVERY DEPOSITIONS:  State v. Lopez, 33 Fla. L. Weekly S23 (Fla. Jan. 11, 2008).  Whether a statement to a police officer is “testimonial” depends on whether the purpose of the interrogation is to assist police with an immediate emergency.  Statements made after the “emergency” is over would be testimonial. 

Also, this case holds that a discovery deposition does not qualify as a “prior opportunity to cross-examine.”  If the declarant does not testify and the statement is “testimonial,” taking a deposition does not make the statement admissible even if it falls under a hearsay exception.

CONSENSUAL ENCOUNTER v. DETENTION:  McKnight v. State, 33 Fla. L. Weekly D91 (Fla. 1st DCA  Jan. 11, 2008).  Police were investigating complaints about drugs being sold at 718 Day Ave.  Police go to that address looking for a black male named Washington and see McKnight sitting in a car outside the address.  As the police approached, McKnight opened the car door but remained inside.  The police did not block the vehicle in any way.  The officer told McKnight that he was performing an investigation and asked if McKnight was Washington.  When McKnight said no, the police asked for his ID to verify that he was not the person they were investigating and to have a name for the police report indicating to whom the officers spoke.  After McKnight gave the police an ID with red borders, the police would not let him leave because they suspected he had no DL.  He was eventually arrested for driving on a suspended license.  The court held that prior to the police seeing the ID, there was nothing more than a consensual encounter.  Once the police saw the ID, they then had reasonable suspicion that McKnight was driving on a suspended license thus warranting a detention.

STATEMENT – INVOKING RIGHT TO COUNSEL:  Hunter v. State, 33 Fla. L. Weekly D101 (Fla. 1st DCA Jan. 11, 2008).  Once a suspect invokes his right to counsel, a subsequent statement may be admitted only if the State proves that the accused initiated contact with the police. 

RESTITUTION:  Butler v. State, 33 Fla. L. Weekly D102 (Fla. 1st DCA Jan. 11, 2008).  A written estimate not admitted as a business record is hearsay and cannot be the only evidence to establish a restitution amount.

SELF DEFENSE:  Wilson v. State, 33 Fla. L. Weekly D117 (Fla. 4th DCA Jan. 11, 2008).  Aleman case.  Wilson’s charges stemmed from a fight with some “youths.”  Wilson wanted the jury to hear that six months earlier, there was a verbal altercation between Wilson and the youths; three months after that they tried to entice Wilson into a fight; and that they had driven past Wilson’s house every day for the entire six months leading up to the incident in question. Aleman would not allow the testimony.  This evidence was relevant to a self-defense claim.  Case reversed.

SEARCH OF SHARED RESIDENCE:  Prophet v. State, 33 Fla. L. Weekly D124 (Fla. 4th DCA Jan. 11, 2008).  Police officers put Prophet in their police car.  They then go to his house and a co-resident consents to a search.  Before searching, they talk to Prophet but don’t tell him they are going to search his house.  The U.S. Supreme court has held that the police do not have to secure consent from a physically absent tenant after they get consent from another tenant.  This is a bright-line rule that literally means the other tenant has to be at the threshold of the house and actually objects to the search.  The fact that Prophet was close to the resident and was not informed of the search does not make a difference.

FAILURE TO YEILD ON A BIKE – STOPPING FOR A TRAFFIC INFRACTION:  State v. Young, 33 Fla. L. Weekly D133 (Fla. 4th DCA Jan. 11, 2008).  M. Kaplan case.  Police officer stops Young primarily because she suspected Young of committing another crime.  The legal reason the police gave was that Young committed a traffic infraction by crossing an intersection on a bike without yielding to a stop sign.  The police officer testified that she did not know whether a crime had been committed.  The court held that the officer’s subjective plays no role in whether the stop was legal.  The only question is whether the officer could have stopped Young for a traffic infraction.

DUI – COMMENTING ON RIGHT TO REMAIN SILENT:  Concha v. State, 33 Fla. L. Weekly D135 (Fla. 4th DCA Jan. 11, 2008).  M. Kaplan case.  Asking the arresting officer whether a DUI suspect who refused to do roadside exercises at the BAT facility did not “demand to show the jury any roadsides, any exercise, meaning though the video” is a comment on Concha’s right to remain silent.  Suggesting that “Concha knew he was intoxicated because he did not ask to perform the sobriety tests when he had the opportunity at the Bat facility. . .was fairly susceptible of being interpreted as a comment on Concha’s right to remain silent.  Concha had a right not to say anything and not to demand an exculpatory procedure.”

FELONY DRIVING ON A SUSPENDED LICENSE – PRIOR CONVICTIONS – HABITUAL TRAFFIC OFFENDER:  State v. Alhindi, 33 Fla. L. Weekly D137 (Fla. 4th DCA Jan. 11, 2008).  Holmes case.  After the state charged Alhindi with DWLS for driving while on a habitual suspension, Alhindi successfully had two prior convictions vacated.  Judge Holmes granted a motion to dismiss.  The court reversed finding that to prove a prima facie case is that DMV designated Alhindi as a habitual offender and that he was driving.  All the state has to show is that you are a habitual offender and you received notice of that designation.

WARDLOW ISSUE:  Doe v. State, 33 Fla. L. Weekly D139 (Fla. 4th DCA Jan. 11, 2008).  Imperato case.  Even in a high drug/crime area, simply driving off when police approach does not come under the purview of  Wardlow.  Something more is needed than just pulling away in a normal manner.