2nd Amendment

Florida’s First Post-Bruen 2nd Amendment Case

Florida’s first post-Bruen Second Adamendment case confirms that a felon cannot possess a firearm. Quoting Heller: “nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons…” That line from Heller was repeated in McDonald v. Chicago and, while Bruen doesn’t re-affirm that …

5th Amendment

During a DUI Stop, Are Police Required to Tell the Driver that Her Lawyer is on the Phone? (Florida v. Alyssa Abache)

During an investigation of a car crash, police moved one driver away from others, advised her that he was conducting a criminal investigation, and read her Miranda warnings. He then requested that she perform field sobriety exercises. Before beginning, however, another person “held up a cell phone, stated that [the …

1st Amendment

Are Ordinances Prohibiting Begging Constitutional in Florida? (Florida v. Watrous)

The following order is from a County Court in Lee County, Florida. It has little to no value as precedent. That said, the reasoning is well-organized and appears solid (there is always a chance for appeal). So here is the long legal answer to a simple question: is it constitutional …

4th Amendment

Florida Police Can (1) Search Your Car After Smelling Marijuana and (2) Cut a Hole in Your Underwear to Find Drugs (Jevin Hilliard v. Florida)

Florida drivers (and those in the car) should be aware that it is fairly well-settled that police have probable cause to search a car and occupants during a traffic stop based on “the faint odor of cannabis.” But how far can the search go? We find out in Jevin Hilliard …

1st Amendment

Florida Statute Criminalizes School Shooting & Bombing Threats – How Does Law Enforcement Locate People Who Post Online Threats? (O.P-G. v. Florida)

Two days after the Parkland School shooting in Broward County, a middle school student twenty miles away in Miami Lakes, Florida decided to post on YouTube the following: “I[’]m going to shoot my school in [F]lorida[.] [I’]m only 13[.] I got bull[ied] and [I’]m getting my revenge with my guns[.] …

4th Amendment

When Can You Withdraw Consent for a DUI Blood Draw in Florida? (Florida v. Jennifer Ivie)

A Florida driver was involved in an accident, taken to the hospital, and interviewed by police who were conducting a DUI investigation. The officer spoke with the driver, advised her of her Miranda rights, conducted at least one visual test, and otherwise detected signs of intoxication. The officer asked the …

1st Amendment

The First Amendment and the Hurdles to Obtain an Injunction in Florida for Social Media Cyberstalking (Derek Warren Logue v. Lauren Frances Book)

A Florida trial court entered an injunction for stalking against the appellant for, among other things, posting a picture of the appellee’s house with her address, a song video with obscene title and lyrics, and a cartoon depicting the appellee with an obscene reference. The appellant filed an appeal, claiming …

1st Amendment

Three Steps to Understanding Why Government Officials Cannot Block Users on Social Media (Knight First Amendment Institute et al. v. Donald J. Trump et al.)

There is some confusion about the recent Second Circuit opinion as to how, on a private social media platform, a government official, using a personal account, cannot block other users. The following three step process should lead just about everyone to understand the outcome. The case is Knight First Amendment …

1st Amendment

“Valid Grounds for Employment Action” Deemed Not Enough for Stalking Injunction under F.S. 784.048 (Klenk v. Ransom)

Florida’s First District Court of Appeal held today that a respondent’s behavior may be enough for an “employment action” (presumably, for termination due to sexual harassment) but, in this case, was not enough for the “exacting standard” for an injunction against stalking under Florida Statute 748.048. The case is Joseph …

1st Amendment

Applying “Old” Laws to New Technology: Smartphones, Recordings, Privacy (at FAU)

Special thanks to attorney / instructor Larry Buck for inviting me to speak to his Florida Atlantic University “Law in the Real World” honors class about my practice, particularly how we apply traditional laws to new, emerging technologies. We discussed: drone regulation First Amendment and social media (US v. Hobgood, …

4th Amendment

Can A State Search Cellphone of Person on Probation Without Warrant or Probable Cause? (Florida v. Mark Leroy Phillips, Sr.)

Florida’s Fifth District Court of Appeal considered the question whether, under the Fourth Amendment, the State of Florida could search the cellphone of a man on probation for child abuse convictions (and who was a registered sex offender) when there was no warrant or reasonable suspicion. The court, in Florida …

1st Amendment

Is a Demand for an Apology = Extortion? (Social Media & First Amendment:U.S. v. Hobgood)

In the song, “Hello,” Adele sings as a jilted lover, calling “a thousand times… to tell you I’m sorry.” It became a hit song in 2015. Contrast that with the facts of U.S. v. Hobgood, out of the Eighth Circuit, where the defendant had a brief romantic relationship with “KB,” …

1st Amendment

3D Gun Printing: Bad Idea the First Amendment Likely Will Permit

I read with interest Thomas Julin‘s article, “Weaponized First Amendment Does Not Protect Blueprints for Weapons” in the Daily Business Review. The link is here. Tom sets out the current status of the debate, cites an authority, and concludes that the First Amendment “will not protect publication of information for …

Constitutional Law

South Dakota v Wayfair – A Dormant Commerce Clause Case Will Likely Hit Intenet Etsy and Ebay Sellers with State Sales Tax

If you sell enough on Etsy and eBay, you may find yourself having to report sales tax in your buyers’ states. A recent opinion from the U.S. Supreme Court, South Dakota v. Wayfair, Inc. et al., is likely going to lead to new hassles for internet merchants, including possibly individual …

4th Amendment

US Supreme Court Touches on Social Media (Facebook) Discovery in Collins v. Virginia (2018)

On May 29, 2018 the U.S. Supreme Court issued a case involving a Fourth Amendment search of a motorcycle parked on the curtilage of a home.  In Collins v. Virginia (8-1), SCOTUS held that a motorcycle parked in an enclosed area of a driveway was within the curtilage of the …