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Law enforcement has broad discretion to enforce the laws. Still, it’s sometimes surprising to see how far a case can proceed before a court overturns a conviction. In fact, the defendant in a recent Florida grand theft decision was arguably doing his job as a repo man when he was charged with grand theft auto and theft of property. It wasn’t until the appeals court heard his case, after a conviction, that he was cleared of the crimes.The defendant was formerly a bail bond agent, who had his license revoked. He started working with another agent to provide bond premium financing. One individual sought his services for a loan and provided the title to her vehicle as security. After she defaulted on the loan, the defendant re-possessed her vehicle. The defendant and his co-worker notified the police that the re-possession occurred as a result of delinquent loan payments. The car owner had several personal belongings in the car. She reported to the police that her car and its contents had been stolen. The defendant was arrested and charged with grand theft auto and theft of property. His defense attorney moved for judgment of acquittal on all of the charges because the defendant lacked the requisite intent for grand theft auto, and the theft charge would be a double jeopardy violation. The trial court denied the motion.

The crime of theft is a specific intent offense. Under Florida law, specific intent requires that the prosecution show that the defendant was aware that he or she was unlawfully taking another party’s property. In contrast, Florida courts have held that a person who takes possession of another party’s property with the good-faith belief that he or she has a right to the property lacks the specific intent to commit theft.

The court noted that the defendant re-possessed the vehicle in broad daylight and contacted police to report that he re-possessed the vehicle as a result of non-payment on the loan. The court rejected a statement made by the defendant that he would not return the vehicle even if its owner paid the amount past due. Reliance on that statement was improper because the analysis should fixate on the defendant’s intent at the time the dispossession occurred. The court could only identify one possible conclusion as to the defendant’s intent:  he took it as collateral for the unpaid loan. The court also ruled that the theft charge be dropped because it constituted a double jeopardy violation. As a result, the appeals court reversed the trial court’s decision with an order to vacate the convictions for grand theft auto and theft of property.

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Crimes with a statute of limitations are required to be prosecuted within a defined period of time. This helps ensure that evidence for the prosecution is still available at trial and encourages law enforcement to actively seek to resolve crimes. A Florida appeals court recently determined that the limitations period had expired against a criminal defendant who was charged with lewd and lascivious conduct, a Florida sex crime.The defendant was the former boyfriend of the alleged victims’ mother. After the mother abandoned her children, they were placed in their grandmother’s care. The defendant continued to be a part of the children’s lives. The two children, along with their brother, went to the defendant’s apartment one day to clean it. At the time, the two children in question were 12 years old and 10 years old. The defendant allegedly engaged in sexual acts with both the 12-year-old and the 10-year-old while they were cleaning his home. On the 12-year-old’s next birthday, the defendant gave her an inappropriate, sexually suggestive birthday gift. When the girl’s grandmother found it, she prohibited the defendant from having any further contact with the children.

The applicable statute of limitations, at the time of the crime, for lewd and lascivious molestation of a child between the ages of 12 and 16 years (Florida Statutes Section 800.04(5)(c)) was three years from the date that the crime was committed. However, the limitations period for that offense does not begin to run until the victim has reached the age of 18 or the violation has been reported to law enforcement.

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As cell phones have risen in popularity, criminal prosecutors now use cell phone records to build their cases. Cell phone records can show such records as calls made or received, text messages, and even proximity to cell towers. Although cell phone records do not provide specific GPS coordinates of a person’s whereabouts, prosecutors often rely on the location of a cell tower to relay the general location of a criminal defendant at the time the alleged crime occurred.The St. Petersburg murder trial of a man accused of killing a confidential informant is relying heavily on testimony derived from a review of cell-tower data that allegedly implicates the defendant. The court heard testimony from a detective who reviewed the defendant’s cell phone records on the night of the alleged murder. His testimony stated that the defendant made calls to the victim moments before the shooting occurred, allegedly to set up a fake drug deal as a way to lure the victim onto a deserted street. In addition, the detective’s testimony traced the approximate location of the defendant, stating that the defendant allegedly picked up an accomplice, drove to the area of the crime, and then went to a hotel room, where he met with other alleged accomplices. The detective tested this theory by driving the same route and confirming that the same cell towers that picked up the defendant’s calls also picked up his calls along the way.

Although criminal prosecutions often rely on cell phone records, Florida law does not give law enforcement free access to those records. Florida Statute section 934.23 authorizes law enforcement to require the disclosure of cell phone records from an electronic communication service only pursuant to a warrant issued by a judge of a competent jurisdiction. In order to obtain a warrant, the law enforcement officer is required to offer specific facts showing that there are reasonable grounds to believe the contents of an electronic communication are relevant to an ongoing criminal investigation.

If law enforcement officials obtain a warrant, the electronic communication service, such as a wireless provider, may be required to disclose certain defined types of information. For instance, records of call duration, cell phone type, subscriber number or identity, credit card associated with customer’s phone, and phone connection records are all available to law enforcement officials under Florida law.  These records may provide the type of evidence prosecutors need to establish the facts of a crime, but they are only legally available with a warrant.

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