STRIP SEARCH – PROBABLE CAUSE USING A CI:  Jenkins v. State, 33 Fla. L. Weekly S147 (Fla. March 7, 2008).  A CI offered to call a drug dealer called “D.”  The CI had previously ordered drugs from D and had his phone number.  The CI could only say that D was a tall, black male.  The CI called D while the officer listened to only one side of the conversation and heard the CI place an order for cocaine and to make the delivery at a gas station known for drug activity.  The CI said that D would be there in 15 minutes and would be driving a “brown boxy 4-door chevy.”  Fifteen minutes later the officer sees the “box Chevy-ish car” and the CI indicates that D is driving.  Based on these facts, the officers had probable cause to arrest D.

The officers search the car and find nothing.  Eventually, they pull Jenkins’ waist band forward and see a baggie with cocaine stuck between his butt-cheeks.  The court held that even if this was considered a strip search, the drugs would be admissible because evidence found in violation of the strip-search statute does not have to be suppressed.  Also, the court found that the search on the scene was permissible because none of Jenkins’ genitals were exposed to the public.

INFORMATION – MULTIPLE ACTS IN ONE COUNT – CHILD SEX OFFENSES:  Whittingham v. State, 33 Fla. L. Weekly D612 (Fla. 4th DCA March 7, 2008).  O’Connor case.  The charges in this case arose for a multi-year course of child sexual abuse.  The State grouped various types of abuse into single counts.  The child’s testimony indicated multiple, indistinct acts occurred within a certain range of time.  On appeal Whittingham argued that by charging so many acts within one count, the jury could have returned a non-unanimous jury verdict.  Whittingham relied on Perly v. State, 947 So. 2d 672 (Fla. 4th DCA 2007), holding that fundamental error occurred when the State charged one count of escape but during trial presented facts that proved that there were two times Perly could have committed the crime.  In closing the prosecutor argued that either act could have constituted escape.  The court reversed finding fundamental error because the State invited a possible non-unanimous jury verdict.  In this case, the court found no fundamental error for two reasons:  1) child sex cases are different because victims’ memories often fade and 2) the prosecutor did not affirmatively invite a non-unanimous jury verdict in closing.  Defense would have to object to the information or at least ask for a bill of particulars to preserve error.

CORRUPTION BY  THREAT:  Kositsky v. State,  32 Fla. L. Weekly D614 (Fla. 4th DCA March 7, 2008).  Fogan case.  After being arrested for DUI, Kositsky told the arresting police officers that he would “slit their throats” if they removed the handcuffs.  (Kositsky also made other threats but the court dealt only with the “slit the throat” threat because that was the only threat alleged in the information.)  The Court held that Fogan should have granted a JOA because the threat to slit the officer’s throat “if the cuffs were removed” could not have ahead the intent of influencing the performance of an act as required by the statute.  If anything, it would have the opposite effect.  Farmer dissented and noted that because drunk people often run off at the mouth, although Kositsky may have violated the statute, a prosecution of this type is “ill advised and excessive.”

POSSESSION WITH INTENT:    Valentin v. State, 33 Fla. L. Weekly D617 (Fla. 4th DCA March 7, 2008).  Officer sees Valentin drop a white object. The object was a clear ziplock bag that contained several smaller bags of cocaine.  The officer testified that based on his training and experience the drugs were packaged for sale with a street value of about $340 dollars.  The officer also testified that it is possible that the amount and packaging could also be consistent with personal use.  Without more, a JOA should have been granted as to the “intent to sell” element.  Because the state’s own witness said the amount and packaging possibly could be consistent with personal use, the state did not exclude every reasonable hypothesis of innocence.

PRO SE MOTION TO WITHDRAW PLEA:  Sheppard v. State, 33 Fla. L. Weekly D605 (Fla. 3d DCA March 7, 2008).  Any pro se motion to withdraw plea is a nullity unless client unequivocally discharges counsel.  This holds true even if represented by a PD.

EXPERT TESTIMONY IN CHILD SEX ABUSE CASES:  Oliver v. State, 33 Fla. L. Weekly D627 (Fla. 5th DCA March 7, 2008).  OK for state to call expert to testify to typical behaviors of children who have been sexually abused.

WITNESS TAKING FIFTH AT TRIAL:  Milton v. State, 33 Fla. L. Weekly D622 (Fla. 1st DCA March 7, 2008).  State cannot call witness who will take fifth at trial.  In such an instance, the witness cannot be cross-examined and just by the State direct question and getting no response from the witness raises an inference of what the testimony would have been.