Musca Law Blog


What To Do Immediately After a Boating Accident Caused by BUI

The year 2015 saw the highest number of boating injuries in Florida in the past five years, at 438 total injuries. Though the number of boating fatalities was down last year – at just 55 compared to 73 in 2014 – Florida is leading the nation in the number of deaths by boating. The primary causes of Florida boating accidents includes:

  • Collision with vessel;
  • Collision with fixed object;
  • Falls on PWC;
  • Falls overboard; and
  • Flooding/swamping.

Alcohol played a role in nearly 20 percent of all Florida boating accidents.

If you were recently charged with boating under the influence in Florida, and if your alcohol use caused an accident, you need to contact a Florida BUI attorney right away. At Musca Law, our legal team can help you craft a strong defense to your BUI charges. By evaluating the circumstances of your case, we may be able to reduce your charges, or even get them dropped entirely.

Your Responsibilities As a Boat Operator in Florida

As a boat operator in Florida, you have just as much responsibility to the boaters around you as you do to drivers on the road, or pedestrians in the street. By accepting the responsibility of boat operator, you simultaneously agree to not act in a negligent, dangerous, or careless manner. Boating under the influence is negligent, dangerous, and careless all at once.

If you were arrested after your accident for consuming alcohol while operating a personal water vessel, you may be in serious trouble. To avoid being charged with a BUI and the consequences of a BUI conviction, there are a couple of things you may wish to do:

  • Contact a boating under the influence criminal defense attorney right away; and
  • Do not incriminate yourself by apologizing for any injuries accrued, do not apologize for causing the accident, and do not make any other incriminating statements. If possible, remain silent until your attorney is present, and only speak about the accident once you have discussed with them what to say.

Punishment for a BUI Conviction

If you are convicted of causing an accident while boating under the influence, you face the possible penalties a number of penalties as detailed by Florida Statutes 327.35. To be sure, for a first violation you may face a fine of between $500 and $1,000 and imprisonment for six months; for a second violation, you may face a fine of $1,000 and $2,000 and imprisonment for nine months; and you may face greater penalties for additional offenses, including higher fines, longer periods of imprisonment, and vehicle impoundment.

Protect Yourself and Hire a Florida BUI Defense Lawyer

At Musca Law, our boating under the influence defense attorneys advocate for individuals who have been convicted or charged with boating under the influence. A BUI conviction can severely affect your life—especially if your actions resulted in an accident and injuries. To ensure the best possible outcome to your BUI case, contact our boating under the influence defense attorneys today at (800) 687-2252 to learn more about how we can help you.


To Blow Or Not To Blow?

We understand that if you are pulled over and asked to take a DUI test – whether it be a breathalyzer test, urinalysis, or field sobriety test – your first instinct may be to refuse, especially if you have had anything to drink prior to getting behind the wheel. However, while some may tell you that refusing to take a chemical or field sobriety test is your right – and it is – your refusal implies guilt. And if the authorities believe that you are guilty of drinking and driving, they will subject you to further legal action.

If you were recently pulled over for a DUI check, and if you refused to take a breathalyzer test, urine test, or to perform the field sobriety test, contact a Miami DUI attorney right away to evaluate the circumstances surrounding your case, and to build a defense to your DUI test refusal.

Your Defense to Refusing a Field Sobriety Test

If you refused to perform the standard field sobriety test, you may be able to build a defense around the fact that you were nervous, and that your nervousness could have caused you to fail the test and thereby implicate you for a DUI that you did not commit. Furthermore, you may be able to argue that your clothes—especially the type of shoes that you were wearing—were not conducive to a field sobriety test, and again, that you did not want to implicate yourself because of factors that you could not control at the time.

Finally, under Florida Statute 322.2615, refusal to perform a field sobriety test alone does not subject you to legal penalties, including the standard one-year driver’s license suspension that typically comes with a chemical sobriety test refusal. If your license was suspended because of your refusal, you have a right to contest the suspension, on top of defending your choice to not take the test in the first place.

Refusing a Chemical Sobriety Test

While refusing to take a field sobriety test in Florida is not grounds for suspension, refusing to take a chemical sobriety test is. In fact, your refusal to take a chemical sobriety test, such as a breathalyzer test, blood test, or urine test, can be submitted as evidence in DUI criminal proceedings. If convicted of a DUI on the grounds of your refusal, you will be subject to a one-year driver’s license suspension. This is due to Florida’s implied consent law, which means that all drivers who hold a valid Florida’s driver’s license have agreed to submit to a chemical sobriety test when they are suspected of driving under the influence simply by accepting the privilege to drive in Florida.

If you should refuse a chemical DUI test a second time, your license will be subject to suspension for an additional 18 months. Furthermore, you may be charged with a first-degree misdemeanor and subject to up to $1,000 in fines and one-year imprisonment.

What Constitutes As a Refusal?

Under Florida law, a simple “no” would be construed as a refusal to take a field sobriety test or chemical sobriety test. Furthermore, if the plaintiff was unable to provide sufficient samples required for a chemical sobriety test, if they gave neither a “yes” nor “no” response, or if they grew argumentative with the arresting officer, then the arresting officer may take the response for a refusal.

Consult a Florida DUI Attorney

At Musca Law, our drunk driving defense attorneys advocate for individuals who have been convicted or charged with driving under the influence. A DUI charge can severely affect your life and any opportunities you may or may not encounter in the future. To ensure that your life is not negatively affected by a DUI charge, contact our drunk driving defense attorneys today at (800) 687-2252 to learn more about how we can help you.


Drug Possession Laws in Florida: Do You Have a Defense?

What started as a fun game of Pokemon Go ended up with drug possession charges for a Miami man, according to a recent report in the Miami Herald. While playing the popular augmented reality game, the man was pulled over by an officer who saw him exhibiting suspicious behavior. As he rolled down the window of his vehicle, a hefty cloud of marijuana floated out of the car. Police conducted a search and found a bag of pot, and arrested the man on possession of a controlled substance. The case raises questions about drug possession crimes in Florida and the penalties for violating the law.

What Proof do Prosecutors Need to Charge Someone with Possession?

To prove the crime of drug possession, a Florida prosecuting attorney must show that:

  • The drug is a controlled substance as defined by Florida law, usually by crime lab analysis;
  • The defendant knew or should reasonably have known the drug is illegal and that it was present on his or her person; and,
  • The defendant had control over the substance

Having control over the drug is straightforward if the substance is in your pocket, purse, or other container on your person. However, a prosecutor can still demonstrate control if you have power over the location of the drug, such as having it in your car or motorcycle.

What are the Penalties for Violating Florida’s Drug Possession Laws?

There are a range of punishments for possessing a controlled substance, depending on the type of drug involved. Possession of some controlled substances is considered a felony, while it may be a misdemeanor in other cases.

  • Second Degree Misdemeanor: You could be sentenced up to 60 days in prison and a fine up to $500
  • First Degree Misdemeanor: A sentence might include imprisonment up to one year, plus probation and fine up to $1,000.
  • Third Degree Felony: You may be required to serve five years in prison and pay a fine not to exceed $5,000.
  • Second Degree Felony: Your prison sentence may be up to 15 years, with a fine up to $10,000.

In the case of marijuana possession, if you have less than 20 grams of the drug, the charge is a first degree misdemeanor.

Are There Any Defenses to a Drug Possession Crime?

It is possible to beat a drug possession charge by presenting defenses to the claim. Options include:

  • You lacked knowledge that the drug was a controlled substance;
  • You had a prescription for the drug, as issued by a healthcare professional;
  • Police created a situation of entrapment; or,
  • The search that turned up the controlled substances was unlawful, as a violation of your Fourth Amendment civil right against unlawful search and seizure.

If you have been charged with drug possession in Miami-Dade County, you need a qualified lawyer to represent your interests. An attorney with experience in these types of cases will fight for your rights and present proper defenses to ensure the best possible result. For more information on drug possession crimes in Florida, please contact the lawyers at Musca Law Criminal & DUI Defense to schedule a consultation.


Burglary is a Crime in Florida, No Matter What You Take

A recent story out of Palm Bay, Florida demonstrates that burglary is a crime, even if the items you take do not have significant value. Florida Today reported on an incident where men entered a home while the owner was sleeping and stole two packs of sausages and bread rolls. Surveillance cameras caught the perpetrators, and neighbors reported seeing three men matching the descriptions captured on the film. Regardless of the nature of the loot, burglary is a criminal offense that carries significant penalties. Hunger is not an excuse, but there are certain defenses to burglary crimes that a Florida criminal attorney can help you present in court.

Overview of Florida Law on Burglary

Burglary falls into the category of property crimes; specifically, it is the term used to describe entry onto the premises belonging to someone else, with the intent to commit an unlawful act. A Florida prosecuting attorney must prove:

  • That you entered the property;
  • You acted with intent to commit a crime, such as theft; and,
  • You were not authorized to enter onto the premises.

It is possible to show that you were not authorized to enter the premises if you were initially allowed by the property owner, but the permission was revoked or expired. The prosecutor must prove all of these elements to convict you of burglary, so the omission of even one factor might result in an acquittal.

Criminal Penalties for a Burglary Conviction

In Florida, prosecuting attorneys may charge you with a first, second, or third degree felony for burglary, depending on the circumstances. If you used a vehicle to damage the property or cause more than $1,000 in damage to the dwelling or structure, you might be charged for a first degree felony. Second degree felony burglary may be the charge if you did not harm any occupants of the property and did not use a deadly weapon during the incident.

The penalties for burglary vary, but all involve both imprisonment and fines:

  • Third Degree Burglary: A prison sentence up to five years, plus a fine not to exceed $5,000;
  • Second degree Burglary: A maximum imprisonment term of 15 years, along with a fine of $10,000; and
  • First Degree Burglary: A prison sentence that may include a life prison sentence, and fine up to $10,000.

If you have a prior criminal history, any prison sentence can be higher than the terms mentioned above.

Defenses to Burglary

You do have the right to present any defenses when charged with burglary, such as:

  • The owner of the property gave you permission to be on the premises;
  • The premises were a public place or open to the public; or,
  • You did not have the intent to commit a crime before entering or while on the property.

If you have been charged with burglary in Florida, you need a qualified lawyer to fight for your rights and protect your interests. An attorney with experience in these types of cases will present proper defenses to ensure the best possible result. For more information on burglary cases in Florida, please contact the lawyers at Musca Law Criminal & DUI Defense to schedule a consultation.


Beating a Felony DUI in Florida: Know Your Defenses

DUI3There is a difference between a misdemeanor and a felony under Florida law, even when the offense is a violation for driving while under the influence of alcohol or drugs. A recent Miami ABC Local 10 News report highlighted how a DUI charge can turn into a case with severe legal, financial and personal consequences under certain circumstances. There are defenses to a felony DUI in Florida, and hiring an experienced attorney will ensure the best possible outcome for your case.

How can I be charged with felony DUI?

There are a few situations where you may be charged for a felony DUI:

  • You have three or more DUI offenses within a 10-year period;
  • You are charged with a fourth DUI within any amount of time; or,
  • Your actions caused serious bodily injury or death to another person, no matter how many violations in your past.

To be a felony DUI as a result of harming someone else, that person must have suffered serious bodily injury. An injury that causes permanent disability, a risk of death, bodily disfigurement, or long-term loss of bodily functions may be considered serious injury, depending on the circumstances.

What are the penalties for a felony DUI conviction in Florida?

The penalties vary depending on the circumstances leading up to your felony DUI charge:

  • If the offense is your third DUI in 10 years, you may be sentenced to up to five years in prison; however, there is a mandatory jail sentence of 30 days. In addition, there is a minimum fine of $2,000, which could reach $5,000 depending on the judge’s decision.
  • A fourth offense for DUI is a felony punishable by 1-5 years in prison, plus a fine of $2,000-$5,000.
  • If your felony DUI charge involves serious bodily injury to someone else, you can be imprisoned up to five years and fined up to $5,000. You may also be sentenced to probation for a period after your release.
  • A felony DUI that causes death to another person, the penalties are quite severe. You could be sentenced up to 15 years in prison, followed by probation up to 15 years after you are released.

In addition to criminal penalties, your driving privileges may be suspended or even permanently revoked depending on the facts of your case.

Do I have any defenses for felony DUI?

You may be able to beat a felony DUI if you’re able to successfully challenge:

  • The Stop: A law enforcement officer must have probable cause to pull you over, which means a reasonable suspicion that you are driving while intoxicated. If the officer didn’t have a valid reason, you may be able to defend the stop.
  • Field Sobriety Tests: These tests are used to determine your impairment, such as by walking a straight line or touching your finger to your nose. If there are reasons besides intoxication that you cannot perform these tests, you may have a defense.
  • Chemical Tests: Blood, breath, and urine tests are subject to error if the machines aren’t properly maintained and the test conditions are monitored. You may defend against a felony DUI if there are errors in the testing.
  • Reading of Your Rights: If a law enforcement officer doesn’t advise of your rights, including the right to remain silent and consult with a lawyer, you may be able to defend against felony DUI charges.

If you’ve been charged with a felony DUI in Florida, you need a qualified lawyer to represent your interests. An attorney with experience in drunk driving cases will fight for your rights and argue your legal defenses to obtain the least severe penalties allowed by law. For more information on felony DUIs and potential defenses, please contact the lawyers at Musca Law to schedule a consultation.


Appealing A Criminal Conviction in Florida: The Third Time Is The Charm For Miami Man

IMusca_Innocent_Guiltyn many instances, whether or not you were given a fair trial will not become apparent until a verdict or ruling is made in favor of the other side. It is important to realize that a guilty verdict is not the end of the road. Earlier this year, Dwaine Merchant walked away from not only a murder charge but a murder conviction as well.

In 2007, Merchant was arrested for shooting a man. During jury deliberations in his first trial, the judge declared a mistrial because the court discovered that two jurors were brother and sister. In his second trial, Merchant was found guilty and sentenced to life in prison. He appealed the conviction and during the third trial, the court ruled the original mistrial was a mistake and because of the 5th Amendment due process protection against double jeopardy, Merchant could not be tried again.

What Constitutes Grounds For Appeal Of A Criminal Conviction?

Pursuant to the United States Constitution, due process is a basic human right of both citizens and non-citizens within U.S. states and territories. This assurance is inferred as part of the 5th and 14th Amendments. In particular, the 5th Amendment provides that no person shall be deprived of life, liberty or property without due process of law. The 14th Amendment contains similar language but it focuses on state and territory implementation of due process, thus ensuring that basic human rights are adhered to at all levels of our government.

In addition to the assurances provided in the 5th and 14th Amendments, the 6th Amendment of the Constitution provides that a person accused of a criminal offense has a right to a speedy trial before an impartial jury. Unfortunately, just because the U.S. Constitution mandates it does not mean criminal defendants always receive due process and a fair trial. Some arguments a person may have on appeal include but are not limited to:

●    Juror misconduct
●    Incorrect law applied
●    Sentencing errors
●    Ineffective legal counsel
●    Prosecutor ethical violations
●    False arrest

Nine years after he was initially arrested, Merchant is a free man solely because he didn’t give up his defense. A defendant will not generally appeal a conviction based on a jury’s interpretation of the facts because a jury’s job is to interpret the facts of the case. Rather, an appeal must be based on legal technicalities. An experienced criminal defense attorney is imperative when appealing your case because criminal appeals require understanding of criminal procedural rules and timelines.

If You Weren’t Given A Fair Trial, We Can Help You

Firm founder John Musca has many years of successfully arguing appeals at the state and federal level. John Musca and his team of Florida criminal defense attorneys are recognized for revisiting guilty verdicts with creative and problem solving solutions. It can take time to build an argument for your appeal and much of the time the clock starts ticking as soon as your guilty verdict is handed down. Immediate legal action is necessary.



Battery in Florida: What is the Difference Between a Felony and a Misdemeanor Charge?

Criminal DefenseIn July of this year, a tourist’s beach trip was cut short when he was attacked by a Florida man wielding a shovel. The shovel actually belonged to the tourist, who had been digging a hole on the beach, but 53-year-old Christopher Carosella from Tampa subsequently picked up the shovel and attacked the tourist as the tourist was walking back to his hotel. The attack resulted in non-life threatening bruising and abrasions but Carosella was charged with aggravated battery.

In the state of Florida, aggravated battery occurs when a person intentionally touches another person and:

● Intentionally or knowingly causes great bodily harm, permanent disability or disfigurement or
● Uses a deadly weapon.

You can also be convicted of aggravated battery if you knew or should have known that the injured party is pregnant. Aggravated battery is considered a second degree felony with punishment as severe as up to 15 years in prison and fines up to $10,000.

What is a Deadly Weapon Under Florida’s Aggravated Battery Laws?

A charge of aggravated battery versus simple battery can mean the difference between a felony conviction or a misdemeanor conviction. Penalties for a misdemeanor are much less severe than those for a felony. Rather than 15 years imprisonment and thousands of dollars in fines, punishment for a second degree misdemeanor is only a maximum of 60 days in jail and up to $500 in fines.

One of the crucial issues you may face if charged with aggravated battery is whether or not you used a deadly weapon. Obviously, guns and knives are inherently deadly weapons, but what about a shovel as with the incident discussed above?

A shovel isn’t a deadly weapon unless it is used in a way that is likely to cause severe bodily injury. In the case above, it could be argued that Mr. Carosella used the shovel in such a way that it constituted a deadly weapon. Then again, if the man’s injuries were not severe, it’s possible the shovel shouldn’t be treated as a deadly weapon. Only an experienced criminal defense attorney can help you develop the appropriate legal defense for your situation.

If you are charged with aggravated battery, there are certain defenses available to you. Perhaps the most obvious is that of self-defense. Under Florida law, a person can use force if the person reasonably believes their force is justified in defending themselves or another against another’s unlawful force. In most cases, you cannot use deadly force in self-defense but there is an exception. If you reasonably believe your life or another’s life is under imminent threat, you may use deadly force so long as you are not also engaged in criminal activity and you have a right to be where you are.

Florida Criminal Defense Attorney Ready to Help You

If you or someone you know has been charged with aggravated or simple battery in Florida, you need to contact an experienced criminal defense attorney right away. An effective defense can save you thousands in fines and reduce or eliminate the amount of prison time you may be facing. Musca Law is a team of criminal defense attorneys with over 100 years of combined experience defending charges of all nature, including weapons charges. Please call us any time of the day for a free consultation.


Almost a year after college student reported assault, Naples spa owner arrested

When a 21-year-old woman bought a Groupon last year for a massage at Enta Thai Spa on Tamiami Trail in Naples, she expected to leave relaxed and pain-free.

Instead, the college student, who was home for summer break, said she felt “disgusted,” “taken advantage of,” and “violated.”

Bovaphanh Phomphakdy, the woman’s masseur who also owns the spa, was arrested Tuesday on a charge of sexual battery without serious injury. He is accused of penetrating the woman. Phomphakdy, also known by his nickname Enta, was released Wednesday on a $25,000 bond.

The Naples Daily News does not identify sexual assault victims.

“It was one of the worst experiences of my entire life,” she explained. “I felt like I was just a piece of meat.”

Her frustrations didn’t end with the assault. Though she immediately reported the incident to the Collier County Sheriff’s Office and underwent rape testing the same day, an arrest wasn’t made until Tuesday — nearly a full year after the assault occurred.

It took the Florida Department of Law Enforcement nearly seven months to determine the presence of male DNA inside the victim and send the report to the sheriff’s office. Once the report was received by the sheriff’s office, another two months passed before a warrant to obtain Phomphakdy’s DNA was sought. It then took at least five more weeks before those results were returned to the sheriff’s office.

According to police reports, the woman told deputies Phomphakdy inched his hands into her underwear before she felt something penetrate her.

“At one point while she was on her side and the male was standing behind her, she felt something warm enter her vagina more than an inch,” the police report states. “She immediately told the male to stop and ended the massage.”

“I’d never had a Thai massage before so I didn’t know,” she explained in an interview. “I thought he just needed to get lower on my back. I thought he knew what he was doing, so I trusted him.”

She was unsure whether he used his fingers or genitalia, according to the report.

“It really upset me how he denied it immediately. He’s an absolute scumbag,” she said. “I never thought that could happen to me.”

Phomphakdy, who co-owns the spa with his wife, denied the allegations when deputies interviewed him, saying it’s possible the woman felt a bottle of oil he carries on his belt enter her, according to the report.

“There’s no way that Bovaphanh Phomphakdy, who worked so very hard to establish this successful massage parlor, would jeopardize that business for a solitary fleeting moment of gratification,” said John Musca, Phomphakdy’s attorney. “He’s an intelligent man. There’s no way.”

Phomphakdy’s wife, Vanina Phomphakdy, agreed. She said in an interview that her husband’s DNA could have been found in the woman if she touched herself after he massaged her hands.

When the young victim received a call from Collier Sheriff’s Detective Scott Peterson notifying her of Phomphakdy’s arrest on Tuesday, she broke down.

“I just burst into tears. I was a mess, but a happy mess,” she said.

She hadn’t heard from Peterson or anyone else working on the case since August. “I was absolutely shocked. I didn’t even know other DNA had been found.”

Part of the delay was the result of ongoing problems at FDLE.

“Our turnaround times are a result of an extensive loss of trained analysts and a huge influx of sexual assault kits that had previously been unsubmitted,” said Steve Arthur, an agency spokesman.

Peterson also cited a heavy workload as a reason for the delay in seeking a warrant. “It took around two months because we’re always in backlog,” he said. “That’s just how it works.”

The warrant was issued on the same day Peterson completed it, according to the arrest report.

It typically takes four-to-six months for rape kits to be processed, according to Project Help, a nonprofit in Collier County that provides counseling for victims of sexual assault and administered the victim’s rape kit. However, starting July 1, all kits must be tested within 120 days of their submission.

“Seven months is a long time to wait, there’s no excuse for it,” said Eileen Wesley, the Executive Director of Project Help, referring to the length of time it took for the victim’s kit to be processed. “Hopefully this new law will give victims less stress in the process going forward.”

By Annika Hammerschlag of the Naples Daily News


Charges dropped in 2010 Collier child porn case

COLLIER COUNTY, FL – A Collier County man accused of a sickening crime is free tonight.

Deputies arrested 40-year-old Robert Hinote in 2010 after they found disturbing child porn images on his computer in East Naples. But in court Friday, the state announced it will not charge Hinote for the crime.

The hearing only lasted a few minutes. The prosecutor told the judge they did not have enough evidence to move forward with the case — meaning Hinote will walk away from these charges. Close to 200 child porn charges were dropped.

Hinote was not in the courtroom, but his attorney gave us a statement.

“It means a big sigh of relief. It means Mr. Hinote can start putting his life together again, and get on with his life,” said defense attorney Marquin Rinard.

In 2010, investigators found hundreds of child porn videos and pictures inside Hinote’s home. The videos and photos showed children as young as four years old having sex.

But the defense argued investigators searched Hinote’s home without a warrant. Therefore, a judge ruled the evidence could not be used in court.

“It’s always surprising when we lose a motion to suppress. But we respect the appellate court, and we will move forward,” said assistant State Attorney Deborah Cunningham.

We went back to Leawood Circle where deputies arrested Hinote in 2010. A neighbor told us he was there when the arrest happened, and lived across the street from Hinote.

“He was a good guy. He played with my kids. He was outside all the time playing — nothing wrong,” said neighbor Luis Velez.

A new family now lives in that home. Neighbors say Hinote moved to Miami a few year ago. Now that he’s off the hook, they say all they can do is hope he’s learned his lesson.

Maybe he got conscience of what he did, and maybe now he will do something different,” said Velez.
Investigators say Hinote was sharing Internet with a neighbor when they linked them to the child porn four years ago. They investigated him for a month before making the arrest. Authorities thought they had a major child porn suspect off the streets.

Posted: Nov 21, 2014

Prosecutors plan to drop charges against confessed child porn hoarder

NAPLES, Fla. – On Robert Hinote’s computer, detectives found hundreds of child pornography files.

When they talked to Hinote, he confessed to hoarding the images and videos of children as young as 4 engaged in sex acts.

If a jury convicted him on all 275 child porn possession charges, he faced a mandatory minimum sentence of about 70 years in prison.

Yet in the coming days, possibly as soon as a Friday court hearing, Hinote, 41, formerly of East Naples, will be cleared, with all charges against him dropped.

Prosecutors said this week they’re planning to dismiss the case against Hinote, the result of Collier sheriff’s deputies illegally entering his home in 2010. Investigators said they had a strong case against Hinote, who has since moved to South Florida, but his prosecution fell apart when a judge tossed all the computer evidence because deputies failed to obtain a proper search warrant.

“There are certain guidelines set out in the laws and Constitution to protect the rights of citizens, and right to be secure in their house and property is one of the most sacred rights we have,” Hinote’s lawyer, Marquin Rinard, said this week.

The decision to throw out the evidence hinged on a unique set of circumstances.

In March 2010, deputies identified an Internet Protocol address used by Hinote’s neighbor as trafficking in child pornography. Deputies obtained a search warrant for the neighbor’s house, finding a wireless router that the neighbor said Hinote had installed and they shared.

When deputies discovered no child pornography at the neighbor’s home, their attention turned to Hinote. Two deputies, Sgt. Ken Becker and Detective Scott Rapisarda, knocked on Hinote’s front door and spoke with him on a front porch.

Deputies offered Hinote two options as they got a new search warrant: He could leave the house as it’s locked up, or he could go back into his home and a deputy would follow him in. Hinote, who’d been smoking marijuana with a female friend, let the deputies in, saying he had nothing to hide.

The deputies did not, however, tell Hinote he could tell them to go away until they had a new search warrant. Their concern, Rapisarda later said at a deposition, was they wanted to ensure “that there’s no evidence that’s going to be destroyed.”

Although Hinote invited the deputies in, he testified at a September 2013 hearing that he felt he had no other choice.

“They explained to me that they were going to come into my house had I said ‘yes,’ `no,’ maybe,’ any which way,” Hinote testified.

Prosecutors argued Hinote legally consented to the search.

Maresca, the assistant state attorney, noted Hinote asked, “Don’t you guys need a warrant?” when Becker and Rapisarda spoke with him on the front porch, an acknowledgement that he knew his rights. Hinote wasn’t pressured by deputies, Maresca said, and volunteered to cooperate throughout the search.

“The police were very professional to the defendant,” Maresca argued in September 2013. “They weren’t threatening him in any way.”

Ultimately, Shenko sided with Hinote, finding their lack of search warrant and front porch conversation constituted an illegal search.

Prosecutors appealed Shenko’s ruling to the Second District Court of Appeals, which affirmed Shenko’s decision without comment in early October.

Asked about the prospect of a confessed child pornography downloader avoiding prosecution, Maresca said “my personal opinion is not relevant.”

“We litigated the issue, we appealed the issue, the Second DCA ruled, and that’s why we have appellate courts for,” Maresca said.

Speaking in generalities, and not specifically about Hinote, Rinard said violations of state and federal laws by well-intended police occasionally lead to guilty defendants being set free.

“For the freedom we enjoy as Americans, that’s part of the price we pay,” Rinard said. “I’m not saying that applies in this case, though.”

Posted: Nov 6, 2014
Source: Naples Daily News

Naples man with child porn charges could be off the hook

COLLIER COUNTY, Fla.- A big blow for law enforcement. WINK News confirms a major child porn case in Collier County could be thrown out.

Attorneys for 40-year-old Robert Hinote say they expect hundreds of charges to be dropped against their client.

They say Collier County Deputies illegally searched his home back in 2010. Hinote’s attorneys say an appeals court agreed with a local judge to throw out all the evidence taken from Hinote’s home.

The State Attorney’s Office can’t confirm to WINK News if and when they may drop the charges. The Collier County Sheriff’s office did not want to comment on this case.

Deputies say they initially searched a home in 2010 where they thought child porn files were being shared online, but they didn’t find anything.

Deputies say they were then led next door to Hinote’s home. Deputies say he gave them permission to search his computer.

But WINK News has obtained brand new documents that show a judge granted a motion to suppress all the evidence taken from Hinote’s house, including the graphic images on his computer.

Hinote’s attorney, John Musca, claims deputies did not have a search warrant for the defendant’s home.

The State Attorney’s Office appealed the judges ruling, but WINK News just learned, the 2nd district court of appeals upheld that decision, meaning the evidence cannot be used.

Posted: Nov 6, 2014


Criminal Defense for Your Teen or Young Adult

Sometimes adults are not the only ones that have to deal with a criminal or even federal offense. Teens and young adults are prone to making poor decisions and which can lead them to run-ins with the law. Just as must attention needs to taken if not more in cases that deal with young adults, because the law applies much differently.

Some young adult criminal charges may include:

  • Underage DUI
  • Fighting in public places
  • Vandalism
  • Theft
  • Concealed weapons
  • Narcotics
  • “Talking back” to police officers

Whatever the matter may be, many young adults are held accountable for “stupid” things they did without thoroughly thinking through, and the now consequences can be grave if not handled with care and attention.

Teen Criminal Charges and Effects on Career & Education

Without the proper steps taken from the very beginning, your teen’s education and career can be at stake. There are devastating effects from underage misdemeanors and charges like DUI. Future college applications and requests for financial aid can be denied if previously convicted of such crimes. Also, with-holding such information can lead to expulsion from campus or even charges of perjury. Hiring a lawyer from day-one can help prevent these occurrences in the near future.

Hiring a Lawyer to Expunge Teen Crime History

Each state has its own policies in regards to teenage criminal defense. After reaching the age of 18, anyone is granted the possibility of expunging, or sealing, their criminal records. Usually, a time period of five years must have passed since the crime was committed. Taking these aspects into consideration, attempting to expunge a case is a great way to greatly improve the current and future situation of any young teen with a criminal record.

One of the most important things here is good advice and instruction from a mentor figure. With the occasional reminder pointing to the fact that many of the things that happen in the late night or early morning hours, can result in decisions, or mistakes, that can affect one’s entire future and change their life forever.

If unfortunately, your teen or young adult is caught and convicted of a criminal defense, take the time to choose the right layer that can give them a solid chance at having a normal and privileged future they most likely deserve.

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