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Frequently Asked Criminal Law Questions - Part I

CRIMINAL DEFENSE FORUM

By: Mark Eiglarsh

Introduction
Having worked in the criminal arena for over 13 years, I am often approached and asked numerous criminal law related questions. Attorneys and non attorneys share many of the same inquiries. Below are several of those commonly asked questions, with answers, that I hope will provide some assistance. When can the police stop and search someone on the street?
Generally, a police officer has the right to stop someone if they suspect that individual may be involved in criminal activity. The officer must be able to specifically articulate the facts upon which he is relying to justify "the stop." Once a lawful stop takes place, an officer, who reasonably feels in danger, may perform a limited "pat down" search of the suspect. This search is limited solely for the discovery of possible weapons that the suspect may be carrying. Therefore, officers must confine their search to places that they would reasonably expect to find a weapon. An officer who conducts a pat down search for weapons and looks through someone's wallet, for example, may be performing an unlawful search. The defendant whose wallet yields a baggie of Cocaine, may have a strong argument to suppress the contraband, assuming that he is ultimately charged with unlawful possession of a controlled substance.

What is White Collar Crime?
In 1939, while speaking to the American Sociological Society, Edwin Sutherland coined the phrase, "white collar crime." He defined the phrase as "crime committed by a person of respectability and high social status in the course of his occupation." Today, white collar crime has evolved to typically refer to a type of offense committed by business people, professionals, and public officials through deception for financial benefit. The Commerce Clause of the U.S. Constitution gives the federal government the authority to regulate white collar crime. The FBI estimates that white collar offenses cost the United States more than $300 billion annually. What is the difference between probation, parole, and pardon?
Probation is a part of a defendant's sentence ordered by a judge. It permits the offender to live in the community, often under the supervision of a probation officer. Offenders serving probation generally must report to their probation officers once a month, and submit to random drug screenings. An offender may be asked to perform a myriad of other special conditions as a requirement of their probationary period. Probation may be in lieu of jail time, or proceed and/or follow a jail term.

Parole, which is granted to an inmate by the board of parole or commission, permits sentenced prisoners to live in the community under the supervision of a parole officer after he serves a portion of his prison sentence. If a parolee violates the conditions of his release, he may be sent back to prison to serve out the remainder of his sentence. Florida has abolished parole.

After an offender receives a pardon, that individual is completely forgiven from all the legal consequences of his crime and his conviction.

If the police have a warrant to search a house, can they search wherever they want?
Generally no. The parameters of where officers are permitted to search within a house hinges upon what authority the judge gave to the police when signing the warrant. For example, if the warrant seeks authority to search a home for stolen cars, then a search of the bathrooms and/or the refrigerator may be unlawful.

What is the difference between assault and battery?
If the victim is touched or struck against his/her will, then a battery has occurred. If the victim had a well founded fear that violence was imminent, however, wasn't actually touched, then an assault has taken place.

In Florida, can I tape a telephone call without permission?
No. In most states, including Florida, one must first secure permission from the parties being recorded. Surreptitious tape recordings by telephone are illegal in Florida and in most States. The following states require consent of all parties to the conversation prior to taping: California, Connecticut, Delaware, Florida, Illinois, Maryland, Massachusetts, Michigan, Montana, New Hampshire, Pennsylvania and Washington.

About The Author:
Mark Eiglarsh is a former prosecutor who specializes in exclusively State and Federal criminal defense and forfeiture matters. An "AV Rated" attorney, Eiglarsh teaches litigation skills at the University of Miami School of Law. Mark can be contacted at the Law Offices of Mark Eiglarsh, at (305) 674-0003 and/or via e-mail at Mark@EiglarshLaw.com. His web address is www.EiglarshLaw.com.