Street Crime is Down - White Collar Crime is UP

The good news is that street crime is down. A recent study attributes the decrease in street crime to the fact that people carry less cash nowadays. According to the National Bureau of Economic Research (NBER) Working Paper: Less Cash, Less Crime: Evidence from the Electronic Benefit Transfer Program (No. 19996, 3/14) crimes have decreased since the 1990s due to welfare recipients using debit cards instead of receiving checks or paper food stamps. Cash benefits, child support payments, and food stamps are all automatically loaded onto an EBT card, no cash in the process. The abstract for that paper states:

"It has been long recognized that cash plays a critical role in fueling street crime due to its liquidity and transactional anonymity. In poor neighborhoods where street offenses are concentrated, a significant source of circulating cash stems from public assistance or welfare payments. In the 1990s, the Federal government mandated individual states to convert the delivery of their welfare benefits from paper checks to an Electronic Benefit Transfer (EBT) system, whereby recipients received and expended their funds through debit cards. In this paper, we examine whether the reduction in the circulation of cash on the streets associated with EBT implementation had an effect on crime."

Attributing the decline in crime to less cash, is a new perspective. Law enforcement and social scientists have explained the decrease in crime in a number of other ways.

One of the reasons often cited for the decline in crime is that we lock up so many people nowadays. According to the Prison Policy Initiative - "Looking at the big picture requires us to ask if it really makes sense to lock up 2.4 million people on any given day, giving us the dubious distinction of having the highest incarceration rate in the world."

Another piece of the puzzle is that we now have far more laws than in the past. People can break a law that they never new existed, and find themselves behind bars. The old saying, ignorance of the law is no excuse, no longer applies. Nobody knows all the laws. According to an article in The Economist:

"The number of federal laws has risen from 3,000 in the early 1980s to over 4,450 by 2008. Many of these have poor intent requirements, meaning people are being locked up not to keep the rest of society safe, but for technical violations of laws they may not have known existed."

If the pace of law creating has continued, then, now in 2014, we have double the number of laws as we did in the 1980s. And we are only counting federal laws. State and local law makers also have to justify their existence by continuing to create and pass more and more laws everyday.

More prisons and jails. Follow the money. The cheapest labor anywhere, even less than third world countries is found right here in America at the Gray Bar Hotel. There are now over 100 private prisons in the United States. Quoting an article about the prison industry in general:

"The prison industry complex is one of the fastest-growing industries in the United States and its investors are on Wall Street. “This multimillion-dollar industry has its own trade exhibitions, conventions, websites, and mail-order/Internet catalogs. It also has direct advertising campaigns, architecture companies, construction companies, investment houses on Wall Street, plumbing supply companies, food supply companies, armed security, and padded cells in a large variety of colors.”

According to the Left Business Observer, the federal prison industry produces 100% of all military helmets, ammunition belts, bullet-proof vests, ID tags, shirts, pants, tents, bags, and canteens. Along with war supplies, prison workers supply 98% of the entire market for equipment assembly services; 93% of paints and paintbrushes; 92% of stove assembly; 46% of body armor; 36% of home appliances; 30% of headphones/microphones/speakers; and 21% of office furniture. Airplane parts, medical supplies, and much more: prisoners are even raising seeing-eye dogs for blind people."

And THAT was the good news. The bad news is that although street crime, crime for cash is down. White collar crime is thriving. The stats presented below are not recent. However, the rate of increase seems to be similar or accelerated since the 1990s. This is an excerpt from a early 2000s article on the National White Collar Crime Center's website (NW3C):

"White collar crime is a term that is applied to nonviolent crimes committed in business situations by individuals, groups or corporations for the purpose of financial gain. Most white collar crimes are associated with some type of fraud, often involving a lending institution, such as a bank or insurance agency.

Examples of white collar crime include: antitrust fraud, bankruptcy fraud, bribery, computer fraud, credit card fraud, counterfeiting, embezzlement, identity fraud, insider trading, insurance fraud, kickbacks, money laundering, obstruction of justice, perjury and price fixing.

White collar crime is steadily on the rise, thanks to our technologically advancing society, which relies on the increased use of cellular phones and computers to access personal and financial information. The National White Collar Crime Center (NW3C), a nonprofit agency that supports state and local police in their efforts to prevent, investigate and prosecute economic and high-tech crime, reports that while arrests for violent crimes have decreased in recent years, arrests for white collar crimes - especially fraud and embezzlement - have increased.

The rise in white collar crime incidents has also contributed to a rise in cost to the nation. According to National Fraud Center statistics, the cost of economic crime has risen from $5 billion in 1970 to $100 billion in 1990, and is only expected to increase as occurrences become more frequent. ....

Statistics from NW3C also approximate that one in three households is the victim of white collar crime, yet of these, only 41 percent report the incident. Of the small number reported, only 21 percent are handled by a law enforcement or consumer protection agency."

Corporate crime inflicts far more damage on society than all street crime combined. Whether in bodies or injuries or dollars lost, corporate crime and violence wins by a landslide.

The FBI estimates, for example, that burglary and robbery -- street crimes -- costs the nation $3.8 billion a year.

The losses from a handful of major corporate frauds -- Tyco, Adelphia, Worldcom, Enron -- swamp the losses from all street robberies and burglaries combined.

Health care fraud alone costs Americans $100 billion to $400 billion a year. The savings and loan fraud -- which former Attorney General Dick Thornburgh called "the biggest white collar swindle in history" -- cost us anywhere from $300 billion to $500 billion.

Recent White Collar Crime Stats

The latest available data from the Justice Department show that during January 2014 the government reported 561 new white collar crime prosecutions. According to the case-by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC), this number is up 0.5% over the previous month.

The largest number of prosecutions of these matters in January 2014 was for "Fraud-Financial Institution", accounting for 15 percent of prosecutions. Prosecutions were also filed for "Fraud-Other" (15%), "Fraud-Tax" (14.1%), " Fraud-Identity Theft-Aggravated" (13.2%), "Fraud-Federal Program" (9.6%), "Fraud-Identity Theft-Other" (7.8%), "Fraud-Health Care" (6.2%), "Fraud-Other Business" (3.6%), "Fraud-Computer" (2.7%), "Fraud-Telemarketing" (2.1%).

Remember, only a small percentage of white collar crime is even reported. And a scant 21% of the reported crimes are ever prosecuted.

In an article by Ben Steverman "Why Drug Lords and Criminals Are SoRisk-Averse" on Bloomberg.com, "convicted felon Sam E. Antar says stock-picking -- trusting in people and numbers you can’t directly verify -- sets you up as a mark for the unscrupulous. Antar was the chief financial officer of Crazy Eddie, Inc., an electronics chain led by Sam’s cousin, Eddie Antar. The chain collapsed under the weight of its fraud in 1989. “Investors live on hope and it’s the criminal’s job to take advantage of that hope,” Antar says:

'If I wanted to be a scam artist today, I could be very, very successful,” he says. “I’d probably have less risk of being prosecuted and far less risk of going to prison.'

So do you think that the worldwide mortgage crisis is the result of sloppy paperwork? Far more harm is done to consumers by a thief with a briefcase than by an army of purse snatchers.

Too little - but not too late - we can still punish the banksters that put U.S. citizens out of their homes

A recent NY Post article caught my eye:

March 8, 2014

Ex-Jeffriestrader guilty of fraud

A federal jury found former Jefferies Group trader Jesse Litvak guilty of defrauding clients on mortgage bond trades, a victory for the government as it probes whether banks cheated their customers in the years after the financial crisis.

After reading about Litvak I wondered whether it is fact or urban myth that no top level bankers have gone to jail for perpetrating mortgage fraud. The Securities and Exchange Commission charged Angelo Mozilo of Countrywide with insider trading and securities fraud in 2009 for selling shares of his company while publicly proclaiming it was in fine shape. But those were civil charges, which Mozilo settled with $67.5 million in fines and a lifetime ban from serving as an officer of a public company. A criminal investigation was dropped.

In 2011, Michael J. McGrath Jr., former president of U.S. Mortgage Corp., was sentenced to 14 years in prison for orchestrating a conspiracy that defrauded credit unions and Fannie Mae of $136 million.

According to the DOJ press release - 2/24/11

Michael J. McGrath, Jr., the former president and controlling shareholder of closely-held U.S. Mortgage, previously pleaded guilty before U.S. District Judge Katharine S. Hayden to one count of mail and wire fraud conspiracy and one count of money laundering. Judge Hayden also imposed the sentence today in Newark federal court.

According to documents filed in this and related cases and statements made in court:

Beginning as early as 2002 to January 27, 2009, McGrath conspired to fraudulently sell Fannie Mae hundreds of loans belonging to various credit unions. Other members of the conspiracy included U.S. Mortgage’s chief financial officer and its servicing manager, Leroy Hayden. McGrath directed Leroy Hayden, who provided numerous reports to credit unions falsely stating that loans that had been sold were still in the credit unions’ portfolios, to falsify records to conceal the fraudulent sales.
McGrath admitted that he devised the scheme to prop up U.S. Mortgage, and that he used the proceeds to fund U.S. Mortgage’s operations, his personal investments, and investments he made on U.S. Mortgage’s behalf.

The pace of the fraudulent sales increased during 2008 and early 2009. On January 27, 2009, dozens of law enforcement agents executed a search warrant at U.S. Mortgage and CU National’s Pine Brook headquarters. In the following weeks, U.S. Mortgage and CU National commenced bankruptcy proceedings. Hundreds of U.S. Mortgage employees lost their jobs as a result.

In addition to the prison term, Judge Hayden sentenced McGrath to three years of supervised release. McGrath also consented to forfeiture of the proceeds of his crimes and $14 million of his assets that the government has seized or frozen. The Court postponed entry of a restitution order so that the victims’ losses could be properly allocated. The total loss amount, previously estimated at around $139 million, has been calculated as being somewhat less. The restitution order is expected to require McGrath to pay more than $136 million in restitution to his victims.

In 2011, Lee Bentley Farkas, the former chairman of a private mortgage lending company, Taylor, Bean & Whitaker (TBW), was convicted for his role in a more than $2.9 billion fraud scheme that contributed to the failures of Colonial Bank, one of the 25 largest banks in the United States in 2009, and TBW, one of the largest privately held mortgage lending companies in the United States in 2009.
After a 10-day trial, a federal jury in the Eastern District of Virginia found Farkas guilty of one count of conspiracy to commit bank, wire and securities fraud; six counts of bank fraud; four counts of wire fraud; and three counts of securities fraud.   At sentencing, one July 1, 2011, Farkas faced a maximum prison term of 30 years for the conspiracy charge and for each count of bank fraud, 20 years for each count of wire fraud related to TARP, 30 years for each count of wire fraud affecting a financial institution and 25 years for each securities fraud count.   Farkas was remanded into custody.

According to court documents and evidence presented at trial, Farkas and his co-conspirators engaged in a scheme that misappropriated more than $1.4 billion from Colonial Bank’s Mortgage Warehouse Lending Division in Orlando, Florida, and approximately $1.5 billion from Ocala Funding, a mortgage lending facility controlled by TBW.   Farkas and his co-conspirators misappropriated this money to, among other things, cover TBW’s operating expenses.   The fraud scheme contributed to the failures of Colonial Bank and TBW.  

“Today a jury convicted Lee Farkas of orchestrating one of the longest and largest bank fraud schemes in the country,” said U.S. Attorney Neil H. MacBride [at sentencing]. “In 2008, Lee Farkas boasted that he ‘could rob a bank with a pencil.’  And he did just that.  His staggering greed led him to steal nearly $3 billion from Colonial Bank and other investors.   Farkas’s mammoth fraud contributed to the toppling of a financial institution and the ripple effects were felt from Wall Street to Main Street.   Now he’s being held responsible for the financial ruin he left in his wake.”

Evidence at trial also established that Farkas and his co-conspirators caused Colonial BancGroup to file materially false financial data with the SEC regarding its assets in annual reports contained in Forms 10-K and quarterly filings contained in Forms 10-Q.   Colonial BancGroup’s materially false financial data included overstated assets for mortgage loans that had little to no value that Farkas and his co-conspirators caused Colonial Bank to purchase.   Farkas and his co-conspirators also caused TBW to submit materially false financial data to the Government National Mortgage Association (Ginnie Mae) in order to extend TBW’s authority to issue Ginnie Mae mortgage-backed securities.

According to court documents and evidence presented at trial, Farkas also personally misappropriated more than $20 million from TBW and Colonial Bank to finance his lifestyle, including purchasing multiple homes, scores of cars, a jet and sea plane, and restaurants and bars.  

Federal prosecutors are still exploring new strategies for criminally charging Wall Street bankers who packaged and sold the bad mortgage loans behind the financial crisis, including using an old law intended to punish individuals for scamming commercial banks. The old law is FIRREA -

FINANCIAL INSTITUTIONS REFORM, RECOVERY AND ENFORCEMENT ACT OF 1989
AN ACT - To reform, recapitalize, and consolidate the Federal deposit insurance system, to enhance the regulatory and enforcement powers of Federal financial institutions regulatory agencies, and for other purposes. Which includes the following provision:

(2)  SPECIAL RULE FOR CONTINUING VIOLATIONS--
In the case of a continuing violation, the amount of the civil penalty may exceed the amount described in paragraph (1) but may not exceed the lesser of $1,000,000 per day or $5,000,000.

It all sounds like too little. But its not too late.U.S. citizens continue to lose their homes to foreclosure despite media proclamations that the foreclosure crisis is well behind us. ITS NOT. Mortgages initiated in recent history, since 2002 or so, are riddled with misrepresentation and fraud. It's not too late to punish those who steal the wealth of U.S. citizens.

It's the Law - CoParenting Course

Divorcing parents are required to take a CoParenting Course, formally called the Parent Education and Family Stabilization Course. The Florida Association of Legal Document Preparers now offers the CoParenting Course online through the site - www.faldp.org. Online 24/7, for only $39.00. DCF approved - no additional charge for certificate of completion.

  

FloridaCoparenting.com is a DCF-approved provider of an online Parent Education and Family Stabilization course that fulfills State requirements. We know how stressful and complicated divorce can be, which is why we’ve made this part of the process as streamlined as possible. Learn vital information to improve your transition into co-parenting without the added stress of attending a Florida parenting class in person.
Register in minutes and start the course right away. You can complete the course at your own pace and when you’re done, instantly print out your official certificate at no extra cost. In addition, a money back guarantee and 24/7 customer support staff ensures your experience is risk-free and simple. Simply click here to get started!

 

61.21  Parenting course authorized; fees; required attendance authorized; contempt.--

(1)  LEGISLATIVE FINDINGS; PURPOSE.--It is the finding of the Legislature that:

(a)  A large number of children experience the separation or divorce of their parents each year. Parental conflict related to divorce is a societal concern because children suffer potential short-term and long-term detrimental economic, emotional, and educational effects during this difficult period of family transition. This is particularly true when parents engage in lengthy legal conflict.

(b)  Parents are more likely to consider the best interests of their children when determining parental arrangements if courts provide families with information regarding the process by which courts make decisions on issues affecting their children and suggestions as to how parents may ease the coming adjustments in family structure for their children.

(c)  It has been found to be beneficial to parents who are separating or divorcing to have available an educational program that will provide general information regarding:

1.  The issues and legal procedures for resolving time-sharing and child support disputes.

2.  The emotional experiences and problems of divorcing adults.

3.  The family problems and the emotional concerns and needs of the children.

4.  The availability of community services and resources.

(d)  Parents who are separating or divorcing are more likely to receive maximum benefit from a program if they attend such program at the earliest stages of their dispute, before extensive litigation occurs and adversarial positions are assumed or intensified.

(2)  The Department of Children and Family Services shall approve a parenting course which shall be a course of a minimum of 4 hours designed to educate, train, and assist divorcing parents in regard to the consequences of divorce on parents and children.

(a)  The parenting course referred to in this section shall be named the Parent Education and Family Stabilization Course and may include, but need not be limited to, the following topics as they relate to court actions between parents involving custody, care, time-sharing, and support of a child or children:

1.  Legal aspects of deciding child-related issues between parents.

2.  Emotional aspects of separation and divorce on adults.

3.  Emotional aspects of separation and divorce on children.

4.  Family relationships and family dynamics.

5.  Financial responsibilities to a child or children.

6.  Issues regarding spousal or child abuse and neglect.

7.  Skill-based relationship education that may be generalized to parenting, workplace, school, neighborhood, and civic relationships.

(b)  Information regarding spousal and child abuse and neglect shall be included in every parent education and family stabilization course. A list of local agencies that provide assistance with such issues shall also be provided.

(c)  The parent education and family stabilization course shall be educational in nature and shall not be designed to provide individual mental health therapy for parents or children, or individual legal advice to parents or children.

(d)  Course providers shall not solicit participants from the sessions they conduct to become private clients or patients.

(e)  Course providers shall not give individual legal advice or mental health therapy.

(3)  Each course provider offering a parenting course pursuant to this section must be approved by the Department of Children and Family Services.

(a)  The Department of Children and Family Services shall provide each judicial circuit with a list of approved course providers and sites at which the parent education and family stabilization course may be completed. Each judicial circuit must make information regarding all course providers approved for their circuit available to all parents.

(b)  The Department of Children and Family Services shall include on the list of approved course providers and sites for each circuit at least one site in that circuit where the parent education and family stabilization course may be completed on a sliding fee scale, if available.

(c)  The Department of Children and Family Services shall include on the list of approved course providers, without limitation as to the area of the state for which the course is approved, a minimum of one statewide approved course to be provided through the Internet and one statewide approved course to be provided through correspondence. The purpose of the Internet and correspondence courses is to ensure that the parent education and stabilization course is available in the home county of each state resident and to those out-of-state persons subject to this section.

(d)  The Department of Children and Family Services may remove a provider who violates this section, or its implementing rules, from the list of approved court providers.

(e)  The Department of Children and Family Services shall adopt rules to administer subsection (2) and this subsection.

(4)  All parties to a dissolution of marriage proceeding with minor children or a paternity action that involves issues of parental responsibility shall be required to complete the Parent Education and Family Stabilization Course prior to the entry by the court of a final judgment. The court may excuse a party from attending the parenting course, or from completing the course within the required time, for good cause.

(5)  All parties required to complete a parenting course under this section shall begin the course as expeditiously as possible. For dissolution of marriage actions, unless excused by the court pursuant to subsection (4), the petitioner must complete the course within 45 days after the filing of the petition, and all other parties must complete the course within 45 days after service of the petition. For paternity actions, unless excused by the court pursuant to subsection (4), the petitioner must complete the course within 45 days after filing the petition, and any other party must complete the course within 45 days after an acknowledgment of paternity by that party, an adjudication of paternity of that party, or an order granting time-sharing to or support from that party. Each party to a dissolution or paternity action shall file proof of compliance with this subsection with the court prior to the entry of the final judgment.

(6)  All parties to a modification of a final judgment involving a parenting plan or a time-sharing schedule may be required to complete a court-approved parenting course prior to the entry of an order modifying the final judgment.

(7)  A reasonable fee may be charged to each parent attending the course.

(8)  Information obtained or statements made by the parties at any educational session required under this statute shall not be considered in the adjudication of a pending or subsequent action, nor shall any report resulting from such educational session become part of the record of the case unless the parties have stipulated in writing to the contrary.

(9)  The court may hold any parent who fails to attend a required parenting course in contempt, or that parent may be denied shared parental responsibility or time-sharing or otherwise sanctioned as the court deems appropriate.

(10)  Nothing in this section shall be construed to require the parties to a dissolution of marriage to attend a court-approved parenting course together.

(11)  The court may, without motion of either party, prohibit the parenting course from being taken together, if there is a history of domestic violence between the parties.

Situational Third Down Slot Backs of the Legal World

I read Mark D. Killian's Florida Bar Article (2/15/14) "Legal freegans’ are looking to ‘eat your lunch". In my opinion, Mr. Killian in particular, and perhaps the Florida Bar in general, has missed the point. First, I wasn't sure what or who a "freegan" might be, so I looked it up. According to Wikipedia:

"FreeganBeliefs

Freeganism is based on the idea of anti-consumerism and that there is little need to purchase new goods because of the waste that society has produced and because they want to help the environment. The writings of sociologist and anthropologist Marcel Maus inspire many values of freeganism. Mauss studied the relationship between forms of exchange and the social culture. Not only do freegans use their finds for personal use, they also share their items and use them for free distribution. They believe that the general public greatly misuses resources because of the ideals and activities of mass consumerism and do not want to contribute to the consumerist society."

So, to extrapolate (or torture) the term then, a "legal" freegan is happy to take the legal left overs, the legal crumbs, in order to avoid the waste generated by the masses' endless demand for legal products. I don't think so. Apparently, freeganism was once explored on Oprah, wherein a show guest explained how she found castaway food, furniture, clothing, even housing, through urban foraging techniques, including curb shopping, and dumpster diving. For some, these practices are both political statements and lifestyle choice. However, I suspect that for many, freeganism is survival, plain and simple; and many embrace the label rather than think of themselves as poor.

The subheading of Killian's Florida Bar article is: "Advanced technologies and nonlawyer entities are encroaching on the traditional practice of law". I say thank goodness and its about time, but, of course, I am not a lawyer. I am pleased to know that nonlawyer entities and advanced technologies, are, in fact, "encroaching" on the traditional practice of law. Mind you, the Florida Bar has never really defined the "practice of law", so we can't quite be sure what the practice of law is, but, I guess ... maybe, like pornography, we know it when we see it. The "encroaching" part is what caught my attention.

By the people, for the people, and of the people. The last time I checked, the courthouses are built with, and, the court staff are paid with tax dollars. Judges are public servants.

Consumers should not be relegated to gathering legal crumbs. Without access to the legal system, consumers are excluded from justice.

http://www.justice.gov/atj/opa/pr/speeches/2010/atj-speech-100809.html

In a 2010 speech the ABA Pro Bono Publico Awards Luncheon, Laurence H. Tribe, Senior Counselor for Access to Justice, stated:

"Law and justice are not synonymous.  Law is a means. Justice is an end.  As we know all too well, law has not always operated to advance the cause of justice.  In American history, as in the history of the world, law has at times served to enslave and oppress, to obfuscate and entrap rather than clarify and liberate.  Defined at its most basic level, the mission of the Access to Justice office that the President and the Attorney General asked me to lead is to release the liberating and equalizing energies latent in our nation’s legal heritage – to help make the lofty rhetoric of “equal justice under law” into everyday, on-the-ground reality, making justice an active verb."

"As the Attorney General has repeatedly remarked, ours is a justice system in crisis, both in indigent defense and when it comes to providing adequate civil legal assistance for the poor, the working class, and the struggling middle class:

• When only the wealthiest among us have their legal needs met, justice will remain an unrealized ideal.

• When a public defender, buried in a mountain of work, has only moments to absorb the facts of a case before standing up to represent her client in court, justice is not alive and well. 

• When poor kids, theoretically entitled to counsel under Gideon and Gault, waive that right without legal advice in a flurry of legal proceedings incomprehensible to them, never understanding the long-term consequences such a decision can have for their opportunity to go to school, get a job, or enter the military, justice remains only a distant hope. 

• When so many people are evicted from their homes or lose custody of their children or are deprived of their ability to seek asylum in this country without the guiding hand of counsel, justice is not a reality."

"The problems we face aren’t episodic. They are systemic. Over half of those who qualify for and seek assistance from the 137 principal federally-funded legal assistance programs must be turned away because the level of available funding is so low.  Many of them have no other option.  They simply become more vulnerable to injustice because they are poor. And many millions more remain vulnerable to the shattering impact of a single event – a home foreclosure, a denial of medical or veteran’s benefits, a denial of help for a sick or troubled child.  These are the millions in our shrinking middle class who face devastation because, for them, the price of justice is too high."

"You have all heard of the trickle-down theory – the theory that, if we help those at the top, those at the bottom will eventually benefit from the fallout.  I’ve never been convinced about that. But I am convinced that, if we help those at the bottom, we will necessarily raise the level of the great river that flows when barriers to justice are lowered.

The challenge, of course, is to do just that — to use our privileged positions as guardians of the law to lift up the most vulnerable and needy among us – when so much else competes for our attention.  “The road is long,” say the lyrics of one of my favorite songs, 'With many a winding turn/ That leads us to who knows where/ Who knows when/ But I’m strong/ Strong enough to carry him/ He ain’t heavy, he’s my brother.'"

And in response to Jordon Furlong's sports analogy as far as whether attorneys' roles should be that of a quarterback, a wide receiver, or a situational third down slot back, I say the latter. In my ideal world, attorneys aspire to the legal equivalent of the masterful cat-like agility of Kansas City's Jamaal Charles -- and leave document preparation to document preparers.

You don't need an electrician to change a light bulb.

You don't need a doctor to apply a band-aid.

And you don't need an attorney to prepare a legal form.

Warrantless Searches

The Fourth Amendment of the United States Constitution states:

“right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause . . . and particularly describing the place to be searched, and the persons or things to be seized.”

Over the years, court rulings have interpreted the exact meaning of those words. One of the landmark cases is called Mapp v. Ohio which laid the ground work for the exclusionary rule. Fruits of the poison tree. In Mapp v Ohio officers searched a residence without a warrant and found evidence of pornography. 

Facts - Mapp v Ohio:

On May 23, 1957, police officers in a Cleveland, Ohio suburb received information that a suspect in a bombing case, as well as some illegal betting equipment, might be found in the home of Dollree Mapp. Three officers went to the home and asked for permission to enter, but Mapp refused to admit them without a search warrant. Two officers left, and one remained. Three hours later, the two returned with several other officers. Brandishing a piece of paper, they broke in the door. Mapp asked to see the “warrant” and took it from an officer, putting it in her dress. The officers struggled with Mapp and took the piece of paper away from her. They handcuffed her for being “belligerent.”

Police found neither the bombing suspect nor the betting equipment during their search, but they did discover some pornographic material in a suitcase by Mapp's bed. Mapp said that she had loaned the suitcase to a boarder at one time and that the contents were not her property. She was arrested, prosecuted, found guilty, and sentenced for possession of pornographic material. No search warrant was introduced as evidence at her trial.

In a 6-3 decision, the Court overturned the conviction, and five justices found that the States were bound to exclude evidence seized in violation of the 4th Amendment. In the majority opinion, Justice Tom Clark declared: “We hold that all evidence obtained by searches and seizures in violation of the Constitution [is] inadmissible in a state court…. Were it otherwise…the assurance against unreasonable…searches and seizures would be [meaningless].”

Since then, 1957, the times have changed and so have the courts. Subsequent court decisions have eroded the absoluteness of the exclusionary rule, creating exceptions such as Nix v. Williams, 1984 (inevitable discovery rule), and U.S. v. Leon, 1984 (“good faith” exception)

In general a warrantless search must be a consent search. If there is no search warrant and no consent from someone with proper authority to consent, then the search is an illegal search and a violation of the Fourth Amendment. In the context of automobile searches, the U.S. Supreme Court has recognized several exceptions to the Fourth Amendment’s warrant requirement.  

First, police do not need to obtain a warrant where it is shown that there are exigent circumstances excusing the need to obtain the warrant.

"Exigent circumstances" in this context are defined as follows: A search is reasonable, and a search warrant is not required, if all of the circumstances known to the officer at the time, would cause a reasonable person to believe that entry or search was necessary to prevent physical harm to the officer or other persons/the destruction or concealment of evidence/the escape of a suspect, and if there was insufficient time to get a search warrant.

However, even if there are exigent circumstances, the police must still have probable cause to undertake the search.  Mincey v. Arizona, 437 U.S. 385, 392-93 (1978).  

Second, police may search a vehicle incident to a recent occupant’s arrest when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.  Arizona v. Gant, 129 S. Ct. 1710, 1719 (2009).

Third, under the “automobile exception,” law enforcement officers may undertake a warrantless search of a vehicle if there is probable cause to believe that the automobile contains evidence of criminal activity that the officers are entitled to seize.  See Carroll v. United States, 267 U.S. 132 (1925).  Thus, in United States v. Ross, 456 U.S. 798 (1982) and in California v. Acevedo, 500 U.S. 565 (1991), the Supreme Court held that, under the automobile exception, police officers may undertake a warrantless search of a closed container found in a vehicle when the officers have probable cause to believe that evidence of criminal activity will be found in the container.  

In a recent Florida Supreme Court case, Florida vs. Thomas, 00-391, the court held that because Thomas had gotten out of the car before he had any contact with police, the officers could not automatically search his car after arresting him. Instead, the court said police must show the search was necessary to protect officers’ safety or to preserve evidence.

In that case, Thomas had arrived at a house where officers were present, and got out of his vehicle. An officer met him and asked to see his driver’s license. A license check showed an arrest warrant for a probation violation. The officer arrested Thomas, and a search of his car shortly afterward found plastic bags containing a substance that police said tested positive as methamphetamine.

There is recent and ample case law that addresses exactly how consent can be given, by whom; whether or not consent was coerced; and the validity of probable cause because of a K-9 alerting to a scent.

Our Bill of Rights is still in place, and it is our duty to know and fight for our rights, lest we lose them all.

Two Mysteries of Florida Family Law Rules

In the course of doing business as a legal document preparer, my customers often ask me questions about procedure and why things are the way they are. I am allowed to provide consumers information regarding procedural rules, timelines, etc.; as long as I refrain from offering legal advice. Most people that contact me do not want legal advice anyway, they just don't know how to fill out the forms. And that's why we're here. The reason for this entire industry is that consumers either don't know how to prepare their own documents, don't have the time, or cannot possibly afford an attorney. A large part of the documents I prepare are family law documents, such as divorces, and supplemental petitions for modification of existing orders.

Mystery Number One:

If a couple is divorcing, they have no children, and they have already split all their assets, why does the State of Florida require a family law financial affidavit?

This is a basic divorce scenario where both parties want to go their separate ways, and have no disputes over anything. In the past couple of years, the requirement for a financial affidavit in a Simplified Dissolution of Marriage (which has never been so simple in my opinion - and I rarely have a request for these forms) changed so that divorcing couples using the simplified process can waive the financial affidavit requirement. However, the huge drawback for couples using the simplified process is that they both must appear in court. And, although, they may not have any disputes over property or children, they still may not want to be in the same room together ever again, and they may not be sure that the other party is going to be completely reliable, and if the other party doesn't show up, then there will be no divorce. And they will very likely have to pay another filing fee to get the divorce completed. So, many couples who qualify for the simplified process, use a petition for dissolution with no children and no property instead. That way, the more motivated party, can make sure he or she is the petitioner, and make sure that the divorce is completed, and the marriage is done and over, regardless of whether the other party cooperates or not. But, these couples are required to file a financial affidavit. Why? Customers ask me all the time. And my only answer is that the State of Florida says so, and beyond that I have no idea.

I recently helped a customer whose ex-husband to be lives in another country. No children, no assets, no debt. She sent him the divorce petition and an answer and waiver of appearance for him to sign. Which he did. But, when she tried to schedule a hearing, the clerk of court refused to schedule it because her husband had not filed a financial affidavit. And then the clerk of court directed her to file a motion to compel him to file a financial affidavit. Since he is in another country how can the State of Florida compel him to do anything? Sounds like a legal question, and I have no idea what the answer is. The bigger question is the central mystery here. Why is it the business of the State of Florida to know the financial information of a consumer, just because they are going through a divorce? If you know the answer, please comment.

Mystery Number Two:

This second mystery is much worse. Frequently, when unwed parents part company the mother (usually) files for child support through the Florida Department of Revenue. The father receives a notice in the mail that he must appear for the child support hearing and to bring all his pay stubs and proof of income. Many fathers are happy to go because they think that they can also request child visitation (timesharing) at the same hearing. Au contraire mon frere! However, most of the time these hearings are held before a General Magistrate, not a Judge. A General Magistrate also called a Hearing Officer is usually an attorney appointed by the Chief Judge to hear uncontested family law matters. So when the parties go in front of the General Magistrate, the court's assumption is that there is no dispute. The father owes child support, and that's the end of it. The General Magistrate is not allowed to hear any disputes, not allowed to hear anything related to child visitation, and the fathers come out of those hearings with their heads reeling. When the father tries to bring up child visitation or custody, the General Magistrate refuses to hear it. Most often the General Magistrate does not explain to the father why he can't hear it (because he's not allowed to); and doesn't tell the father what he can do to make sure that he has the legal right to see his own children and not be treated like an ATM.

Why does the State of Florida persist in allowing the fathers to be treated this way? If you know the answer as to the why, please comment.

There is a solution, however, and I truly hope this is helpful to someone. If you are caught in the situation described above: File a Petition to Determine Paternity and Related Relief; and a proposed Parenting Plan. The outcome will be an order naming you as the legal father, with the legal right to spend time with your children. The Parenting Plan is the schedule of visitation.

Contract for Deed - Not the Way to Buy Florida Real Estate

Back in real estate school we learned that buying real property with a contract for deed, which is also called a land contract, or installment contract -- is a bad idea. However, leave it to the enterprising lenders of our times, and you see this bad idea popping up all over again. A contract for deed is not a mortgage. The buyer does not receive a deed to the property until the debt is paid in full. The transaction is more like buying a car than buying a house. When you make installment payments on a car, a lien remains on your car until you pay it off. Contract for deed is the same. With a mortgage the buyer receives a deed the day of closing.

From a buyer's point of view, one of the main problems with a contract for deed is that the seller might die before the final payment and obtaining the deed may be difficult.

Right of Cancellation

• Under Florida's Title XXXIII Regulations of Trade, Commerce, Investments and Solicitations, Section 498.028, the buyer of a land contract has the right to go back on the agreement for whatever reason within a seven-business-day period from the execution date of the contract. If a buyer exercises this right, the seller must reimburse the buyer all funds and fees within 20 days of receiving the cancellation notice. Notice land contract sellers cannot charge buyers with any penalty or obligation if they decide to exercise their right of cancellation.
  

Notice of Assignment of Contract for Deed

• In Florida the seller of a contract for deed can sell the rights to a property to a third party while the buyer is making payments. However, Florida land contract law requires the seller to provide the buyer with a signed and notarized notice stating the contract for deed has been assigned to another party. The buyer should, from then on, continue making payments to the new owner of the land contract.
  

Another pitfall with a contract for deed is that the underlying loan can be called due by the lender under the “due on sale” provision of the mortgage.  If the underlying mortgage is being paid timely, this scenario is unlikely, but still possible. Sellers who enter into contract for deed may be unaware that according to Florida law, a purchaser of real estate who defaults on a contract for deed, must be foreclosed upon just as if it were a mortgage.

In my opinion the pitfalls far outweigh the benefits for either party.