THE RAP SHEET. Legal News for Law Enforcement in Brevard and Seminole Counties

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1 THE RAP SHEET Volume XVIII, Issue 1 April 2002 Legal News for Law Enforcement in Brevard and Seminole Counties INTRODUCTORY WORDS By Mary Ann Klein Trainer-Sanford This issue of The Rap Sheet provides a summary of selected cases decided by the United States Supreme Court and Florida Courts in the year 2001 through January This summary does not contain all cases decided. Norm Wolfinger State Attorney When I began my prosecution career in Brevard and Seminole Counties 29 years ago, local law enforcement did not have to concern itself or allocate resources toward threats or acts of terrorism. How that has changed! In addition to the steady obligation of investigating ordinary street crime, today s law enforcement community must confront this new deadly issue. It is comforting to know that our Brevard and Seminole law enforcement have taken the lead when it comes to setting up new cooperative partnerships and implementing strategies necessary to snuff out and prevent such terrorism in our community. The tradition of excellence in public service continues on thanks to the hard work and efforts of each of you. Be safe. The cases were selected due to their broad application because the case discussed an area of repeated litigation or because of its impact upon or interest to law enforcement. Inside This Issue 2 3 Highlights from the United States Supreme Court Search and Seizure: Florida Highlights 5 5 th and 6 th Amendment Cases 6 Substantive Crimes 8 Warrant Issues 9 Miscellaneous Issues

2 HIGHLIGHTS FROM THE UNITED STATES SUPREME COURT Sexual Battery - Jimmy Ryce Act The U.S. Supreme Court has ruled that, in civil commitment proceedings, there must be proof of the defendant s serious difficulty in being able to control his behavior. The State is not required to establish a complete lack of control. Kansas v. Crane, 534 U.S., 122 S.Ct. 867, 151 L.Ed.2d 856 (01/22/02). Highway Checkpoints for Drugs The Court found highway checkpoint programs with the primary purpose of detecting evidence of ordinary criminal wrongdoing to be in violation of the Fourth Amendment. Only a limited line of exceptions exists to the Fourth Amendment s prohibition of suspicion-less seizures, such as a sobriety checkpoint and checkpoints with the primary purpose of intercepting illegal aliens. Checkpoints with the primary purpose of detecting the presence of illegal drugs, which is ordinary criminal wrongdoing, do not fit the limited exception. City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (11/28/00). Warrantless Seizure A woman notified the police that her husband had marijuana in his home. Upon his exiting the home and standing on the front porch, police kept him from reentering unaccompanied until a search warrant could be obtained. The Court upheld the warrantless seizure because the police had probable cause to believe the home contained evidence of a crime and had a reasonable belief that the evidence would be destroyed if the defendant entered the home unaccompanied. Illinois v. McArthur, 531 U.S. 326, 121 S.Ct. 946, 148 L.Ed.2d 838 (02/20/01). Warrantless Arrest for a Misdemeanor Petitioner, upon failing to secure her children and herself with a safety belt in violation of Texas law, was arrested, without a warrant, by an officer who witnessed the violation. The warrantless arrest for such a violation is expressly authorized by Texas statute. The Court upheld the arrest, even though the officer could have fined the woman instead, because the Fourth Amendment does not forbid a warrantless arrest based upon probable cause even when the offense is minor. Florida does not permit an arrest in this situation. Atwater v. City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (04/24/01). Heat Sensing Police Surveillance Federal agents who suspected marijuana was being grown in Danny Kyllo s home used a thermal imaging device to scan Kyllo s triplex to determine if the amount of heat emanating from it was consistent with the high-intensity lamps typically used for indoor marijuana growth. Based in part on the information from the thermal imaging device, a federal judge issued a warrant to search Kyllo s home, where the agents found marijuana growing. The Court ruled that the warrantless use of a thermal imaging device to determine whether a home was radiating abnormal heat violated the Fourth Amendment. Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 150 L.Ed.2d 94 (06/11/01). Fifth Amendment Privilege Against Self- Incrimination Neither a defendant s guilty plea nor the plea colloquy preceding the plea waives the defendant s Fifth Amendment privilege against self-incrimination in the sentencing phase of the case. In addition, the trial court may not draw an adverse inference from the defendant s silence at sentencing. Mitchell v. United States, 526 U.S. 314, 119 S.Ct. 1307, 143 L.Ed.2d 424 (04/05/99). Sentencing Other than the fact of prior conviction, any fact that increases penalty for crime beyond the prescribed statutory maximum must be submitted to the jury and proved beyond reasonable doubt. 2

3 Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (06/26/00). Self-Incrimination - Witness Who Denies Culpability The Court reversing the Ohio Supreme Court said the Fifth Amendment privilege protects the innocent as well as the guilty. In this case Matthew Reiner was charged with voluntary manslaughter in connection with the shaken baby death of his two-month-old son. The defense suggested that babysitter, Susan Batt, actually harmed the child. Even though Batt was not being prosecuted, she said she would invoke her Fifth Amendment right and refuse to testify unless given a promise of immunity. Batt received immunity and testified, and Reiner was found guilty. The Ohio Supreme Court eventually ruled that Batt had no valid Fifth Amendment privilege, and the trial court s grant of immunity was unlawful, improperly prejudicing Reiner s defense. The United States Supreme Court disagreed reasoning that, since Batt had reasonable cause to believe there may be adverse consequences as a result of her answers to trial questioning, she did have a valid Fifth Amendment privilege against selfincrimination. This was so, even though prosecutors did not intend to accuse her of wrongdoing. Ohio v. Reiner, 532 U.S. 17, 121 S.Ct. 1252, 149 L.Ed.2d 158 (03/19/01). Right to Attorney When the Sixth Amendment right to counsel attaches, it encompasses charged offenses and offenses that, even if not formally charged, would be considered the same offense under the Blockburger test. If not the same offense under Blockburger and not formally charged it does not attach to offenses that are factually related to a charged offense. While under arrest for an unrelated offense, Raymond Cobb confessed to a home burglary, but he denied any involvement in the disappearance of a woman and child from the home he burglarized. Cobb was indicted for the burglary, and an attorney was appointed to represent him. Cobb then confessed to his father that he murdered the woman and her child, and his father contacted police. While in custody, Cobb waived his Miranda rights and confessed to the murders and was later convicted and sentenced to death. Cobb argued on appeal that his confession should have been suppressed, because it was obtained in violation of his Sixth Amendment right to counsel, which he claimed was triggered when an attorney was appointed in the burglary case. In a narrowly divided 5-4 decision, the Supreme Court disagreed, concluding that while the burglary and murders were related, they were separate offenses, and the lawyer dealing with the burglary may not necessarily work on the murder case. Texas v Cobb, 532 U.S. 162, 121 S.Ct. 1335, 149 L.Ed.2d 321 (04/02/01). Search of Passenger s Belongings Police officers with probable cause to search a car may inspect a passenger s belongings found in the car that are capable of concealing the object of the search, and the investigating officer need not have reason to believe that the passenger and driver were working together in a common enterprise, nor must the officer have reason to believe that the driver had time and occasion to conceal the item in the passenger s belongings, surreptitiously or with the passenger s consent. Wyoming v. Houghton, 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (04/04/99). SEARCH AND SEIZURE: FLORIDA HIGHLIGHTS Search by School Resource Officer A school administrator had reasonable suspicion that a student was in possession of drugs. She requested the school resource officer to search the student, and drugs were discovered. The search was based on the reasonable suspicion of the school administrator and the deputy s 3

4 subsequent search was at her request; thus, the officer could conduct the search based upon reasonable suspicion rather than probable cause. The 2 nd District Court of Appeal acknowledged conflict with A.J.M. v. State, 617 So.2d 1137 (Fla.1 st DCA, 1993) which requires probable cause before a school resource officer can conduct a search even one requested by school administrators. State v. N.G.B., 806 So.2d 567 (2 nd DCA 1/23/02). See also State v. D.S., 685 So.2d 41 (3rd DCA 12/11/96). Contraband in Detention Facilities Statute (1) prohibiting introduction of contraband into a county detention facility did not include drug paraphernalia as an item of contraband; thus, defendant could not be charged with violating the statute based on possession of a crack pipe. Jordan v. State, 801 So.2d 1032 (5 th DCA 12/21/01). Search Incident to Arrest A warrantless search of a vehicle, incident to the arrest of the vehicle occupant, is limited to situations where the law enforcement officer initiates contact with the defendant, either by actually confronting the defendant or by signaling confrontation with the defendant, and the officer subsequently arrests the defendant regardless of whether the defendant has been removed from or has exited the automobile. The United States Supreme Court initially granted certiorari but later held that the case did not involve a final judgment or decree of Florida s highest court. As a result, the Florida Supreme Court decision could not be treated as final for jurisdictional purposes, and thus was not within Supreme Court s jurisdiction. See Florida v. Thomas, 532 U.S. 774, 121 S.Ct. 1905, 150. L.Ed.2d 1 (06/04/01). Thomas v. State, 761 So.2d 1010 (Fl. 10/14/99). Probation Revocation The exclusionary rule applies during probation revocation hearings to bar the use of evidence obtained from an unlawful search or seizure. The Florida Supreme Court refused to extend to probation revocation hearings the United States Supreme Court case of Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357, 118 S.Ct. 2014, 141 L.Ed.2d 344 (June 22, 1998) (which held that the exclusionary rule does not apply to exclude evidence in parole revocation hearings). State v. Scarlet, 800 So.2d 220 (Fl. 11/01/01). Justification for Traffic Stop A police officer who observes a vehicle operated in an unusual manner may have sufficient justification for a stop even though no violation of traffic regulations took place and no citation was issued. In this case the defendant was observed hitting the curb with the front and back tires, speeding up, and then abruptly stopping in quick succession. Finizio v. State, 800 So.2d 347 (4 th DCA 11/28/01). Constitutionality Of Driver s License Checkpoint A driver s license checkpoint program is unconstitutional if its primary purpose is to stop drugs or other general criminal wrongdoing. This case cited the U.S. Supreme Court s decision in City of Indianapolis v. Edmond. Davis v. State, 788 So.2d 1064 (2 nd DCA 05/23/01). Illegal Detention Officers cannot place an individual in the back of a locked police car without his consent for an unreasonably long period of time without any probable cause to suspect he is guilty of criminal activity. Clinton v. State, 780 So.2d 960 (5 th DCA 03/02/01). Reliability of Police Informant Police received a telephone call from a woman claiming to be the defendant s mother concerning an alleged firearm violation. Seeing an individual matching the woman s description, an officer detained the defendant, conducted a pat-down search, and found a 9mm machine gun in his backpack. At a suppression hearing, the officer testified that Maynard was not doing 4

5 anything illegal but was stopped based on the information given by the dispatcher. The court found that, the caller was not anonymous, as she told the police that she was the mother of the suspect, thereby demonstrating the basis of her knowledge and veracity, a factor that is seldom established from a truly anonymous tip.... In addition to being an identified informant, we find that the caller qualified as a citizen informant. There is no indication that the caller was motivated by any reason other than a concern for the safety of her son and others. Under these circumstances, the stop and frisk was permissible under the Fourth Amendment. The tip provided the officer with the necessary reasonable suspicion to justify the stop. State v. Maynard, 783 So.2d 226 (Fl. 3/29/01). Valid Third-Party Consent to Search Sharon Brown appealed the drug possession convictions arising from a proper traffic stop of a vehicle in which she was a passenger. The officer who stopped the vehicle observed Brown sitting in the passenger seat with a fanny pack in her lap. The officer received the driver s consent to search the car for narcotics, and both the driver and Brown were ordered to exit the vehicle. As Brown got out, she left her fanny pack on the floorboard of the front passenger seat. Although the officer knew the fanny pack had been in Brown s possession, he did not ask her permission before opening it. The 2 nd DCA stated, although Ms. Brown and the driver may have exercised shared use and joint access and control over the car in which they were stopped, this shared use could not apply to the fanny pack in Ms. Brown s lap. The fanny pack, like a purse, is a container suggesting individual ownership, in which a person has a significant expectation of privacy. The officer here never saw the pack in the driver s possession, and he knew that Ms. Brown was in possession of it until he ordered her out of the car. Under these circumstances, it was not reasonable for the officer to assume that the male driver had the apparent authority to consent to the search of the pack. Brown v. State, 789 So.2d 1021 (2 nd DCA 04/06/01). Use of Air Horn A police officer s use of his vehicle s air horn to get a suspect s attention would lead the person to believe he was being commanded to stop, and so the ensuing encounter cannot be considered consensual. Siplin v. State, 795 So.2d 1010 (2 nd DCA 09/05/01). Emergency and Takedown Lights A deputy sheriff s use of emergency and takedown lights signifies an investigatory stop rather than a consensual encounter. Hrezo v State, 194 So.2d (2 nd DCA 01/31/01). In accord is Young v. State, 803 So.2d 880 (5 th DCA 01/04/02). 5 th AND 6 th AMENDMENT HIGHLIGHTS Coerced Confession Defendant was placed under arrest in his house in the presence of his father. The officer told the father that there was a question concerning the location of a firearm. The father then questioned his son who told him where the gun was located. Defendant s statements were admissible. The court held that the officer did not make his statements to the defendant s father for the purpose of eliciting incriminating information, nor was there any evidence that the defendant was subject to any coercion. State v. Alexander, 27 FLW D450a, 5 th DCA. Inculpatory Statement When murder suspect in the same breath first invoked his right to remain silent and then volunteered the incriminating statement, I m not going to talk to you now because what I say could put me in jail for a long time, incriminating statement was voluntary and admissible. Even after a suspect invokes his right to remain silent, his inculpatory statement is admissible if it was voluntary and was initiated 5

6 by him. Clark v. State, 780 So.2d 184 (3 rd DCA 01/31/01). Improper Comments on Right to Remain Silent It is highly prejudicial and an improper comment on a defendant s right to counsel and to remain silent for a detective to comment during cross examination that he questioned the defendant about why he hired a lawyer prior to his arrest if he were innocent. Jones v. State, 777 So.2d 1127 (4 th DCA 01/31/01). Coercive Interrogation Investigator s vow to subject a suspect to every possible charge if he did not tell the truth during questioning amounted to coercion that renders the subsequent confession inadmissible in court. Further, it is essentially a promise not to prosecute to the fullest extent allowed by law if that person confesses. Edwards v. State, 793 So.2d 1044 (4 th DCA 07/25/01). SUBSTANTIVE CRIMES Drug Possession Possession involves two types of knowledge: knowledge of the presence of the substance and knowledge of the illicit nature of the substance. The defendant s knowledge of the illicit nature of the substance is an element of every possession case, whether actual personal possession or constructive possession, which must be proven by the state. Lack of knowledge of the illicit nature of the substance is not an affirmative defense to be raised and proven by the defendant, and a jury instruction must be given regarding this even when the defendant offers nothing by way of an affirmative defense. The current standard jury instructions on possession do not adequately inform the jury of the illicit nature of the substance requirement of the guilty knowledge element. Since the jury is entitled to be instructed on all the elements of an offense, a failure to instruct on the illicit nature of the substance requirement of the guilty knowledge element cannot be harmless error, especially when the omission is brought to the attention of the trial court by the defendant. The presumption that knowledge of the illicit nature of the substance can be inferred from the defendant s possession applies to situations where the defendant has actual personal possession of the substance. However, even in situations where this presumption is applicable, the elements of the possession offense, including the element of the illicit nature of the drug, must first be explained to the jury by proper instructions. Keep in mind that this decision would be applicable to simple possession cases, possession of paraphernalia cases, as well as possession of contraband in correctional facility cases. There must be evidence that the defendant knew of the illicit nature of the substance. Scott v. State, 27 FLW S31a (Fl. 01/03/02). Fleeing and Eluding During a trial for a felony fleeing and eluding, the law enforcement officer testified that he had activated his overhead lights and siren. However, there was no testimony that the police vehicle was marked in any other manner. The court held that there was insufficient evidence to support a conviction, as the Statute required the State to prove that the vehicle in question had agency insignia and other jurisdictional markings prominently displayed. Jackson v. State, 27 FLW D213a (2 nd DCA 01/18/02). Vehicle Stop Officer lacked founded suspicion necessary to have a valid stop of defendant s vehicle for driving under the influence (DUI), where officer observed single instance of squealing tires, and testified that at the time there were no other cars in vicinity that could have been endangered by defendant s driving. Donaldson v. State, 803 So.2d 856 (4 th DCA 01/02/02). 6

7 Resisting Arrest An individual is not required to cooperate with an officer by answering the officer s questions and so may walk away during a citizen encounter. F.P. v. State, 778 So.2d 1072, (5 th DCA 03/02/01). Removal of Vehicle Number A vehicle owner who alters or removes one plate containing the vehicle s identification number (VIN), but leaves two others intact, does not violate the law making it illegal to alter the VIN number. A Margate police officer observed a pickup truck in the parking lot of an automobile repair shop and saw that it lacked the required VIN on the dashboard. There were two holes visible where the VIN had previously been attached, but VIN did appear on the driver s side door jam and attached to the firewall of the engine compartment underneath the hood. The city sought forfeiture based on a violation of Section , F.S., which makes it illegal to remove or alter the motor number or vehicle identification number. The city contended that the statute is violated even if only one VIN plate is missing, and the fact that the vehicle had visible VIN s on the firewall and the door jam was of no consequence. The court found it unclear whether the legislature intended to criminalize the removal of one VIN, where other VIN s are intact and visible. If the statute criminalized the removal of a VIN, it would be clear; however, the use of the word the made it unclear as to whether the statute applies in this case. If a statute is susceptible of differing constructions, it must be construed most favorably to the defendant. City of Margate v. Singh, 778 So.2d 1080 (4 th DCA 03/07/01). Burglary A burglary can be committed in a store that is open to the public if the defendant enters a prohibited area behind the cash register that he knows is not open to the public. The Court said, the question of whether the area behind the counter was open to the public is a question of fact for the jury to decide. Johnson v. State, 786 So.2d 1162 (Fl. 03/29/01). Resisting Officer - Self-Defense Instruction An individual may defend himself against unlawful or excessive police force even when he is being arrested, and is entitled to a jury instruction on self-defense. Langston v. State, 789 So.2d 1024 (1 st DCA 04/20/01). DUI - Driver Injury Florida law does not authorize a conviction for DUI causing serious bodily injury where only the driver has been injured. The court noted that Section , F.S., makes it a third-degree felony to operate a vehicle while under the influence and cause serious bodily injury to another. At the same time, a 1988 amendment to the statute defined serious bodily injury to include harm to the driver. The DCA said the result is a statute that is internally inconsistent, and said any ambiguity must be resolved in the defendant s favor. As a result, the DCA said, the law does not allow a conviction where the driver suffers the only injury. The court ordered that the defendant in this case be sentenced for the lesserincluded offense of driving under the influence. Smith v. State, 793 So.2d 1118 (1 st DCA 09/06/01). Trespassing Slydell was arrested by officers who stopped him on suspicion of trespassing based only on their hunch that he did not belong in an apartment complex whose owner had asked the police to help stop trespassing. The officers found crack cocaine on Slydell, who was convicted on drug charges and resisting an officer without violence. Slydell argued that the resisting conviction should be thrown out because neither of the arresting officers possessed a founded suspicion that he was engaged in any criminal activity, and 7

8 he was therefore free to walk away from the officers. The court stated, we do not agree that an officer s bare suspicion that a person is trespassing, even when coupled with an agreement between the property owner and the police for officers to stop and investigate persons whom the officers do not recognize as residents, is sufficient for an investigatory stop and detention. A property owner s grant of authority to police officers to investigate trespassing on the owner s premises does not confer any greater authority upon law enforcement during policecitizen contact than do our Constitution and laws. Officers still need a reasonable and articulable suspicion that a person is engaged in criminal activity for a Terry stop. Slydell v. State, 792 So.2d 667 (4 th DCA 08/29/01). Statute Prohibiting Hate Speech An anti-hate statute that prohibits publications that tend to expose persons to hatred, contempt or ridicule unconstitutionally violates the First Amendment. The state appealed an order dismissing charges against Lloyd Shank for violating Section , F.S. In 1999, members of the Broward County Commission received an anonymous letter containing anti-semitic comments. Shank was arrested after admitting to a detective that he wrote the letter, but the trial court found that the statute violated the First Amendment because it was impermissibly content based, overly broad, and vague. The DCA agreed. Section is not contentneutral. The statute criminalizes speech based solely on content, i.e., speech that criticizes or ridicules is targeted, while other nice publications that praise or promote approval, admiration, or commendation are not penalized, the DCA said. The statute, in essence, is regulating good manners. State v. Shank, 795 So.2d 1067 (4 th DCA 09/19/01). Drivers Licenses Revocation In 1998, the Legislature amended Fla. Stat , rendering it impossible for defendants who have 4 DUI convictions to ever receive a driver s license. The 5th District Court of Appeal held Chapter , which was enacted, effective July 1, 1998 violated the single subject rule and thus is invalid. The Court recognized that the single subject requirement of Article III, Section 6 of the Florida Constitution only applies to chapter or session laws and sections of the Florida Statutes need not conform to the requirement once reenacted by way of an adoption act as a portion of the Florida Statutes. Since this had not been done the law is invalid. D.H.S.M.V. v. Critchfield, 805 So.2d 1034 (5 th DCA 01/04/02). WARRANT ISSUES Knock and Announce Violation A police search is illegal where officers executing a valid search warrant knock and announce themselves but don t wait a reasonable time before entering forcibly. Randall v. State, 793 So.2d 59 (2 nd DCA 07/13/01). Mutual Aid Agreements - Execution Of Warrant Tampa Police Dept. Detective received anonymous tip regarding drug possession at location in Lutz, a different city. After verifying the tip, the Tampa detective got a search warrant and executed it. A Hillsborough County Deputy Sheriff was present when the warrant was executed but did not assist in the search. Court held that voluntary cooperation agreements do not give municipal police officers the same jurisdictional powers as county deputy sheriffs but instead are designed for disasters, emergencies, and other major law enforcement situations, not for the routine execution of warrants. State v. Allen, 790 So.2d 1122 (Fl. 06/20/01). Pat-Down Search of Persons on Premises The search warrant authorized the search of the premises together with the yard and curtilage thereof, and any and all out buildings, and vehicles thereon, and any persons thereon 8

9 reasonably believed to be connected with the said illegal activity defendant was an occupant of a vehicle parked in the property s parking lot at the time the search warrant was executed. The court ruled that the mere presence of a visitor on premises, authorized to be searched, is insufficient evidence connecting the person with criminal conduct to justify a pat-down search of his person. The pat-down of Harris was done as a matter of routine practice, not based on any reasonable suspicion. Harris v. State, 790 So.2d 1246 (5 th DCA 08/10/01). Scope of Warrant A search warrant that authorizes a search of persons unknown requires more than the defendant s mere presence to link him to illegal activity in order to justify a personal search. Officers obtained a warrant to search Timothy Clark s home due to suspected drug-related activity. The warrant also allowed authorities to enter and search the premises and persons unknown, but neither the warrant nor its supporting documents mentioned the defendant, D.M.D. Once at the home, officers searched everyone including D.M.D., and an investigator testified that he construed the warrant to include anyone at the residence. Officers found ecstasy tablets and rolling papers on D.M.D. The officers had no information indicating the residence in question was (D.M.D. s) premises, and (D.M.D.) did not act in such a way as to give the officers reasonable cause to believe he was involved in criminal activity. The court found that the officers did not have reasonable suspicion to search the defendant. D.M.D. v. State, 798 So.2d 851 (1 st DCA 11/02/01). Investigative Subpoena Seized property should be returned to its owner at the conclusion of a criminal case even if it is also covered by an investigative subpoena for a civil case. The Office of Statewide Prosecution seized various documents and records in pursuit of the criminal case and, pursuant to an investigative subpoena, the documents were turned over to the Attorney General s Office for use in a civil suit stemming from the same charges. The businesses filed a motion to return property in the criminal case but the trial court reasoned that issuance of the subpoena prevented return of the property to the Corporations. The 5 th DCA ruled that once a motion for return of property is filed, the trial court with jurisdiction over the criminal proceedings does have the jurisdiction and the responsibility to determine whether a proper basis exists to return the property to the owner. This determination requires notice to the owner of the property and a hearing where all interested parties are given an opportunity to present evidence and argument to the trial court. Eight Hundred, Inc., v. State, 781 So.2d 1187 (5 th DCA 04/12/01). Waiver of Spousal Privilege A letter written by a suicidal murder defendant telling an investigator he would have to talk to the defendant s ex-wife for more information about his crimes does not constitute a clear waiver of the inmate s spousal privilege. In this case the letter was not voluntarily delivered and therefore could not be a voluntary waiver. Bolin v. State, 793 So.2d 894 (Fl. 07/13/01). MISCELLANEOUS ISSUES Prison Releasee Reoffender The Florida Supreme Court has ruled that the provisions of the Prison Releasee Reoffender Act apply to both life felonies and 1 st degree felonies punishable by life. Knight v. State, 27 FLW S81a (Fl. 01/24/02). 9