First, let me address the couple that had a dispute of some sort, the police or deputies were called, and one person was arrested. This often happens due to the “preferred arrest” policy of the “primary aggressor” of the incident. The couple may have been drinking, things escalated, words were exchanged, the house was trashed, and law enforcement responded by a call from someone. Maybe it was a neighbor calling in a disturbance complaint.

The next factor is that the next day, cooler heads prevailed. This couple had years vested in their relationship and suddenly, there’s a No-Contact Order by the court and everything is at stake including financial security and family separation.

This couple ultimately wants to reconcile and to reunite. But how does that happen now?

Here is where a good investigator with soft-skills and good timing can be very useful. The listed victim on the report will be contacted in some manner either by phone, text, or perhaps a cold-call visit. Be sure to discuss with your client (the defendant) first to strategize your approach, and if she/he agrees to speak freely with the investigator, a sworn affidavit requesting that charges be dismissed will be taken.

In the wake of Covid, it has become more acceptable to take sworn-recorded phone statements or even better, start the conversation by phone and if agreeable, do a virtual call via Zoom, Signal, or another video calling format. Zoom has a record button, and it will save it to the cloud or on your computer. It’s a great tool for statements now, and a very powerful one to present on behalf of your client or your attorney’s client.

Often when I cold-call the victim of the Domestic, I bring a blank form titled “Waiver of Prosecution.” I have also heard this called a “Request Not to Prosecute” form, or even just a blank witness statement form could suffice. Having a written form or statement completed by the victim is still a very powerful message to the prosecutor and the court. And since you are there, take a 2-minute audio statement too. Why not do both?

Now keep in mind, this is the type of Domestic charge stemming from a couple wishing to reconcile and to avoid prosecution. This is not the approach for the Domestic Battery type of charge where physical abuse is the issue. Frequently these charges are spawned from words, a slammed door, a broken household item(s), and because law enforcement have these “preferred arrest” policies in place, one was taken into custody.

The last part of this defense strategy is that the defendant agrees to counseling, couples counseling, behavior management, or some other variety of therapy. Before you approach the victim, be sure that this part of the process is a definitive part of the plan. Typically, returning to your client and the attorney of the defendant with a recorded statement, a written Waiver of Prosecution or both will be very useful.

In closing, Domestic arrest cases involving these three pragmatic steps of …

1. The couples’ intent to Reunite
2. The Waiver of Prosecution or Recorded Statement
3. The Proactive Planning for Counseling

…will result in a better outcome and gives the attorney a formula for success.

If you have any questions or concerns, get started by contacting me.

Issues to attack and challenge the drug charges. As an investigator on your case, I am always going to investigate the stop, the search, the evidence provided to prove the case. Let’s start with Possession assuming that the police got into a car or home and have made a seizure.

Possession by whom?

The defendant’s identity must be proven in court Beyond a Reasonable Doubt. This comes into play when there is no direct possession of the alleged drug. For example, if it was in a vehicle. Other people might have been in the car or others at the residence or business that you were located. Are these factors in your case?

Any Reasonable Doubt about the person’s identity and their possession of it might also be called Constructive Possession.

Constructive Possession

Constructive possession is significantly more difficult to prove, and the State must show that while someone who does not actually possess the illegal contraband, that they have the intent and the ability to control dominion over the drug or contraband.

So, here’s the question, did you exercise care, custody, and management over the drugs? If not, how can the prosecutor prove it? She cannot! Reasonable Doubt exists. Remember, the police only need Probable Cause to arrest, but to convict, the threshold is much higher.

Knowledge – the culpable mental state or Mens Rea. Can the prosecutor prove your knowledge of the drugs?

The prosecutor must prove that you knowingly possessed the drugs. If you were in another person’s vehicle, did you really have control and knowledge of the drugs in someone else’s car?

What if it’s your car? Did you loan it to someone before taking possession of the car again? These are valid questions and could be part of a defense strategy.

Hypothetically speaking, if you were traffic stopped and somehow the police searched your car, and they find meth or coke under your seat or in your glovebox. Then, they still must prove possession. How are they going to achieve that? DNA, fingerprints, your own admission. Don’t talk to the police about the drugs. Invoke your rights and make them work for it. Will they be able to prove the drugs are yours?

Search and Seizure

Even if the drugs were proven to be your drugs and can prove your knowledge, was the stop legal? Was the search legal? Did they talk you without reading your constitutional rights (Miranda Warnings)?

If the police made a mistake on the stop, the search, the K9, or any part of that, the evidence seized will not be admissible in your case.

How did the police come in contact with you? Or in other words, what made him traffic stop you?

Warrant and Warrantless Searches

Cops have to establish probable cause to search and for a warrant. They cannot just enter your home or any home without a warrant. In a vehicle, they need Probable Cause that they can clearly explain to the court. If not, the case is a waste of the court’s time and will likely not go further than preliminary hearings.

Remember During a Police Confrontation to…

• NEVER GIVE CONSENT to search
• Ask if the stop is being recorded
• Only provide essentials, ID, Insurance, and your correct address.
• Do NOT tell the police where you are going or where you came from
• Do NOT admit to anything

Fighting a drug case in Florida and if it goes Federal is critically important. The penalties may often lead to years in prison. You must have the right Criminal Defense investigator to boldly and critically tear into the case.

If you have any questions or concerns, please contact me for help

Silence is Golden

First and foremost, utilize your right to remain silent. Simply answer questions about your identity, but do not elaborate about where you started your journey or where your destination is. That is your business and not the business of the police. You must assume that your words are being recorded, so remember that everything you say can be used against you. Certainly, do not comment about the alleged traffic stop violation or if you feel compelled to say something in your own defense, simply deny it.

Consent to Search

If you have read any other article that I’ve put out, this answer is obvious. NEVER GIVE CONSENT. Simply comply with the police. Compliance is not consent. If they do not have probable cause to search your vehicle without a warrant, don’t help them. Refuse consent, be polite and professional. We will help you fight the good fight later.

To Sign or Not to Sign the Citation

Short answer is just sign the ticket if the officer wants your signature. It’s not an admission of guilt. You can fight the charge(s) in court later but in some situations by refusing to sign the ticket, you will give the police a reason to arrest you, and then they can search your car in a “Search Incident to Arrest” and that is not beneficial to your circumstances.

Arrested after Traffic Stop

Don’t argue, don’t resist, and certainly don’t bad mouth. Remember, you’re probably on video. We want the ordinary observer that will be watching this later to see that the officer could not provoke you into bad behavior. Once the police arrest you, ask for an attorney immediately and well before they read you the Miranda warnings. If the police begin to question you after you’ve asked for an attorney, they are wrong, and this will help you later, but remember that silence is golden when it comes to answering the police officer’s questions. Trust me, their questions are intended for you to incriminate yourself.

If you have comments or concerns, please feel free to contact me

First, let’s address that nearly all of the cases that I am assigned, gun charges stem from a traffic stop and vehicle search. So I’ll talk about that dynamic. Obviously, we want to start at the beginning.

How did the police come in contact with you? Or in other words, what made him traffic stop you?

The Officer’s Traffic Stop

Cops have to establish a Reasonable Suspicion for a stop – cops often refer to it as “the PC for a stop” but the stop itself is based upon a reasonable suspicion that you committed a crime or you are about to. As an investigator, I am attacking the reason for the stop.

Nowadays, cops have video or should have video, if they don’t, that’s an area for your attorney to attack. What are they hiding?  We are in the transparency era. The video is the best partner you can have as a police officer.

When I’m reviewing the case and looking for the reason for the stop, I’m looking for articulable reason for the stop. I’m checking the exact location of the alleged infraction and looking for potential witnesses and 3^rd party video too.

If the stop can be suppressed, everything that follows will be excluded. That means the evidence, the gun, will be removed as evidence. The next part of my investigation is to determine how they got into the car – which means did they execute a legal search?

Why Did the Officer Search Your Vehicle?

Before the police, deputies, or detectives can search your vehicle, they need Probable Cause to search it based upon certain factors, or you can voluntarily grant them permission to search. This is referred to as a Consent Search. And let me tell you this… NEVER GIVE CONSENT!

Listen carefully, if the police want consent to search your vehicle, they don’t have probable cause. Don’t give in. If it seems as if you have no choice because the cop says something like, “You might as well give me consent because I’m calling for the dog,” or, “I’m going to search it anyways,” or “if you’ve got nothing to hide, just step out. It will only take me two minutes.” Don’t fall for it.

Here in Florida, the cops love to say that they “smell marijuana” but the smell alone is not enough. In your case, if this terminology was used by the police, I’ve got strategies and investigative methods to examine that.

Your responses to their questions are critical to the police establishing Probable Cause, so don’t voluntarily offer up statements, and never incriminate yourself or admit to anything. Your words may help the police create Probable Cause. Choose your words carefully, or just clam up.

But the cops can also use other means to establish probable cause. If they see something in Plain View, they may order you out of the vehicle to search based upon that observation. So keep a clean car.

Another common method the police use to search your car is by summoning a canine handler to have his dog do a perimeter search. Most importantly, the police may NOT delay your stop just to get a dog on-scene to sniff the exterior of the car. So if there was a delay, we can exploit that the police violated case law and policy as well. For that matter, how did the dog alert? Was the alert on video? Training records of the police are crucial here too. As the investigator, this is a huge area of interest and my attorneys can challenge many factors in the dog sniff to establish Probable Cause.

Over the years, cops have gone unchallenged in this area. Not anymore. The canine is no longer a free pass for the police to create Probable Cause out of thin air, but you’ll need an investigator with the knack to crack that part of the case!

Possession – Did you have Knowledge and can the Prosecutor Prove it?

Can the police point to your knowledge of the possession with direct evidence or circumstantial evidence?

Where was the gun located? How many people were in the car? Is your DNA or prints on the gun? Many officers contaminate the gun and/or don’t bother going through with this step. Was the gun in a bag, under a seat, or right next to you? All of these variables help to defend your case.

Direct evidence usually comes from your words – so don’t tell the police anything that is going to help them link the gun to you. The police might also say that the gun was within arm’s reach or “ready-at-hand” is another popular phrase. But was it? Could you contort your arm to reach for it while in a bag and in the backseat? That circumstantial evidence could be challenged and ending up a very weak part of the prosecutor’s case.

Fighting a gun case in Florida and if it goes Federal is critically important. The penalties may often lead to a decade or more in prison. You must have the right Criminal Defense investigator to boldly and critically tear into the case.

-David Ferrante

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Insurance fraud is a crime. And the savings to companies by utilizing an experienced field investigator could be millions in payouts.

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This article originally appeared on my LinkedIn page