Articles Posted in Sex Crimes

This topic will consider whether judges in the State of Florida will follow the law involving criminal sex charges that society considers heinous. Remember, each case involving a sex charge is different and must be reviewed on its own merit. The principal question here is whether judges differentiate between the admittance of evidence in a serious sex charge versus a lesser non-sex charge. The simple answer is, “they should.” However, an experienced attorney who handles sex charges will tell you that many judges will look for any reason to admit evidence and hold the defendant accountable. So, what does this mean? The clearest way to explain this is from a recent hearing in Orange County, Florida in State v. Green (2018-CF-16350-A-O).

The main issue in this case revolved around whether consent given by a third party would allow law enforcement to seize the property of the defendant. In simple terms, the police knock at your door, and someone else who lives at the residence allows the police to search your things. What was ultimately found was the basis for very serious charges to be brought and should that evidence be suppressed, then the State would have no ability to prosecute further. That’s a tall order for any judge, but if the defense presents its evidence properly, the facts are established without question, and the law is outlined thoroughly, then the Court must and will follow the law.

Attorney Anton Nace represented Mr. Green, who was charged with multiple counts of unlawful possession of materials depicting a sexual performance by a child and sexual battery on a child under 12. The police seized evidence at his residence, and this was allowed by a resident of his home when they allowed the police to enter, search, and retrieve personal property belonging to Mr. Green. Importantly, the third party was asked by the officer to retrieve any electronics Mr. Green owned and bring them to the officer executing the search. So, what is so tricky with this issue? Standing. Standing is an issue often overlooked by other attorneys but here, it became a very important detail that allowed Mr. Green to prevail on the motion to suppress. In order to raise a 4th Amendment, claim of an unreasonable search and seizure, a defendant must have standing. That is, the defendant must demonstrate a right to privacy in the particular item searched and seized.

Sexual crimes in the state of Florida are very serious and must be thoroughly investigated by your attorney either prior to being charged or arrested or after you are charged or arrested. The first question we look at is what the State Attorney’s process is in deciding who gets investigated for a sex crime and who ultimately gets charged or arrested.

The short answer is the state attorney will charge someone with a sex crime from the evidence or facts they believe to be true at the time. An investigation can start when a citizen calls or files a complaint against a person who may have committed a sex crime. An example would be an adult inappropriately touching a minor and another person saw this and called the police. In this scenario, the police will immediately contact the potential wrongdoer either by phone or in person. Another example would be photographs of illegal sexual activity that were discovered and someone turned them over to law enforcement.

In either scenario, at this point, if you agree to speak with law enforcement, your testimony will be used against you, and you can be misinterpreted or tricked into making a confession. Once this is done it is very difficult to undo it. It is more beneficial for the accused to have an attorney to act as a go-between the accused and law enforcement. Your attorney may be able to relay information through an investigation to the State Attorney with the goal of not being charged at all or receiving a lesser charge.

Someone who has been convicted of a sexually related crime will be required by the court to register as a sex offender or sexual predator. Those crimes can include child pornography, sexual misconduct, lewd or lascivious offenses with a minor, etc. A sexual offender and sexual predator are two different terms, depending on the number of convictions on your record. A sexual predator is typically the more dangerous of the two, having committed and been convicted of at least two 2nd-degree sexual felonies or at least one 1st-degree sexual felony.

The sex offender registry is a public list that displays your name, picture, address, and criminal offense. In some cases, the list will also provide date of birth, weight, and height, among other things. This information is made available to the public on a law enforcement-managed website. All of this information is provided to your local law enforcement when you register, and when required to register, your name remains on that list for life. If you fail to register or re-register when required, you can be charged with a 3rd-degree felony, punishable depending on the number of offenses. If your first offense, is punishable with six months of electronic monitoring by the police; a 2nd offense requires a one-year minimum of electronic monitoring; a 3rd offense requires a 2-year minimum of electronic monitoring.

Being charged and convicted with a sexually related criminal offense is not a situation you want to be in, but being placed on the registry after being released into the community will continue to have long-lasting, harmful effects. It may prove very difficult to find employment, you will have to follow state regulations on the distance you reside from schools and playgrounds, neighbors will be able to discover your crimes on the registry, and you can get in more legal trouble if you fail to update your registration yearly as required. In addition to being placed on the sex offender list, you will also be required to make the local police aware when in their county and to inform them of plans to travel to other Florida counties.

The police showed up at my door and accused me of having sexual relations with a woman who was underage. There was consent and she told me she was 20 years old. She turned out to be 16 years old. What should I do?

If the police show up asking questions, you should not answer any of their questions or make any statements to them regarding the accusations. Once they leave, call an attorney who specializes in criminal defense and explain the police are making these alleged accusations against you. The attorney will provide you with legal advice by explaining your next steps and advising you to not contact the other party involved, or speak to the police without an attorney present.

In Florida, having sexual relations with a minor can result in criminal charges, leading to prison time and hefty fines. The age of sexual consent is 18 years old- anyone under the age of 18 is considered a minor. Regardless of the minor giving consent, Florida law declares minors to be incapable of giving informed consent.

The police have asked me to turn over my cellphone and laptop so that they can search it for illegal material and child pornography. I don’t have anything to hide, but I don’t want to turn anything over unless I really need to. What do the police need to get a search warrant for my electronics?

Under the 4th Amendment of the U.S. Constitution, as well as under the Florida Constitution, the police cannot search through information on your computer, laptop, cellphone, tablet, or other electronic device without either your consent or a search warrant. If you refuse to give consent, then a police officer or other law enforcement agent would need to provide a sworn affidavit to a magistrate or judge stating the grounds for probable cause. The affidavit would need to provide specific information showing that there is a high probability that law enforcement will find illegal material on your devices if they were allowed to search them.

Many people wonder how law enforcement could possibly know whether their devices contain illegal material such as child pornography. Most tips that law enforcement receives regarding child pornography come from internet service providers, such as Google or Safari. Internet service providers are private companies. Given that 4th amendment protections only apply to invasions of privacy committed by government actors and not private individuals or companies, the 4th amendment does not protect you from private companies turning over information they have to law enforcement. For example, if an internet service provider becomes aware of an image of child pornography, it can report that image, including providing the web server and address, to law enforcement. Law enforcement can then use this information to establish the probable cause they need to get a warrant for uploads or downloads of this illegal material.

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After conversations with Tom, who knew I would settle for nothing less than a FULL DISMISSAL due to my innocence, I hired him. His firm of Adams and Luka did the due diligence by interviewing witnesses and the police who were on the scene, as well as starting a dialogue with the State Attorney. After gathering statements from witnesses, Tom was able to present a strong argument on my behalf to the State Attorney on why the case should be dismissed. If the State Attorney was not willing to dismiss the case, Tom was ready to take the case to trial.

The result by Thomas Luka: Case Dismissed.

I am 53 years old with a spotless record and glad to keep it that way thanks to the time, effort, hard work, and professionalism of the Adams and Luka and Tom Luka.

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