FLORIDA SUPREME COURT

No reversals reported.

FIRST DISTRICT COURT OF APPEAL

No reversals reported.

SECOND DISTRICT COURT OF APPEAL

CLICK TO READ Jermaine Feagin v. State of Florida, Docket # 2D18-3002

Appeals judgment and sentence after jury trial. Convicted of shooting within a dwelling, criminal mischief, grand theft, and armed robbery with actual possession and discharge of a firearm. The trial court erred in failing to remove a juror during the trial, after that juror belatedly disclosed his relationship with one of the victims. Reverse and sentences as to all counts that were presented to the jury and remand for a new trial on those charges

Small community and court noted this during voir dire for the purposes of ensuring no one knew each other. A few potential jurors knew the victim and were struck for cause after disclosing nature of relationships. The subject juror, sworn as alternate, remained silent. Alternate juror brought note to the court’s attention, but since they were the alternate, the court did not have an issue. Considered the victim a good friend. Had not spoken to the victim about the case. Defense counsel moved to strike juror and State had no objection, but thought he could be rehabilitated by the court. Court left juror on the alternate juror basis.

Alternate juror was seated when a juror had a medical issue with a child. Defense counsel renews argument. Court proceeds with alternate juror. Because the alternate juror failed to disclose his friendship, Appellant was deprived of his right to a fair and impartial trial Reversed and remanded for a new trial.

THIRD DISTRICT COURT OF APPEAL

CLICK TO READ Marcel Ashley v. State of Florida, Docket # 3D19-628

Appeals convictions and sentences for armed robbery and armed burglary. Argues that trial judge committed reversible error by making his mother take the witness stand solely for the purpose of invoking her Fifth Amendment rights in front of the jury and refusing to testify.

Victim was abducted from his home by an armed intruder, forced to drive to an ATM and withdraw money. Intruder fled with car and money after returning to victim’s home. Police tracked car to gas station, but it was gone. Police released video from gas station to the media showing two men standing near the car at which time Appellant’s mother called the police and told them she recognized him from the video. Mom signed a photo used for later identification by the victim in a photo lineup.

First trial ended in hung jury. Second trial, state sought to call mom. Florida law is clear that it is improper for the State to call a witness, who is closely identified with the defendant, to testify before the jury when the State knows that the witness will invoke her Fifth Amendment right against self-incrimination and refuse to testify. See Apfel v. State, 429 So. 2d 85, 86 (Fla. 5th DCA 1983). Moreover, her testimony provided no relevant information to the jury and was unduly prejudicial. Court had already held a hearing and knew she would not testify, even holding her in contempt. Reverse and remand for new trial.

FOURTH DISTRICT COURT OF APPEAL

No reversals reported.

FIFTH DISTRICT COURT OF APPEAL

No reversals reported.

ELEVENTH CIRCUIT COURT OF APPEALS

CLICK TO READ United States v. Scott Joseph Trader, Docket # 17-15611

Appeal requires court to decide whether the government needed a warrant to obtain a criminal suspect’s email address and internet protocol addresses from a third party’s business records. It also requires court to decide whether probable cause supported a warrant to search the defendant’s house and whether a sentence of life imprisonment was an unreasonable punishment for his crimes.

Allegations of abuse to his own children and then using apps to send and solicit pictures of others. Engaged in this with more than forty minors and engaged in sexually explicit conversations with more than a hundred apparent minors. Traded pics on SayHi and Kik. SayHi was foreign. Kik was domestic. Kik sent Homeland Security his email address and that the user had repeatedly logged in over a phone from a particular IP address over the last month. DHS traced to Comcast. Comcast obliged request for information and that the account was registered to a relative. His license details and picture matched that from SayHi and Kik. DHS used this information to apply for a warrant.

Magistrate issued warrant that was executed same night. Found stash of drives hidden under a loose floorboard under a storage cabinet. Forensic examination revealed that it was years’ worth of sexually explicit videos of him abusing his daughter and thousands of other videos and images of the same type. Also, contained archived messages and nude images and videos from young girls. Also, details of abuse and plans for abuse. Encouraged women to participate in abusing his daughters and their own daughters.

A grand jury indicted him for enticing a minor to engage in sexual activity, enticing a minor to produce a sexually explicit video, and possessing and distributing child pornography. 18 U.S.C. §§ 2251(a), (e); 2252(a)(2), (a)(4)(B), (b)(1)–(2); 2256(2); 2422(b). Trader moved to suppress the evidence from Kik and from the search of the Edinburgh Drive house. The district court denied the motion. Trader pleaded guilty to all the charges on the condition that he retained the right to appeal the denial of the motion to suppress and could withdraw his guilty plea if he succeeded on appeal.

Sentencing guidelines after enhancements and reductions put him in the sentence range of life in prison. The district court sentenced Trader to life imprisonment for enticing a minor to engage in sexual activity, along with concurrent sentences of 240 months each for possessing and distributing child pornography and 360 months each for two counts of producing child pornography.

Carpenter case was decided while his appeal was pending. Absent Carpenter, the third-party doctrine would undoubtedly apply to the information the government received from Kik. Trader affirmatively and voluntarily acted to download Kik onto his phone and to create an account on the app. He conveyed his internet protocol address and email address to a third party when he logged into Kik. And he did so voluntarily, affirmatively acting to open the app and log in, and without taking available steps to avoid disclosing his internet protocol address. See United States v. Taylor, 935 F.3d 1279, 1282, 1284 n.4 (11th Cir. 2019) (recognizing a reasonable expectation of privacy in internet protocol addresses of individuals who used software to avoid disclosing their internet protocol addresses). Third party doctrine controls here because Carpenter’s narrow exception applies only to certain cell site location information. IP address and email address are not cell phone location records.

There was probable cause because pictures on driver license and address matched the records and his SayHi and Kik profiles.

Life sentence was reasonable given the scale of the abuse among other factors. AFFIRMED.