SMART PHONES ARE JUST SMALL COMPUTERS, SUBJECT TO IMPULSIVE ACTIONS
Cell phones today serve many utilitarian functions besides being a communications device. One can summon a ride, execute stock trades, research potential vendors, get insurance coverage, write an obituary, buy flight tickets or share photos with friends and family and a myriad of other tasks. As this technology has become commonplace and accessible even to children, a new world of internet crimes also has arisen. Historically, this is nothing new. New technology has brought new crimes before. In the past, we had train robberies occur once the rails went across America. Likewise, we never had obscene phone calls until we had phones. In this blog, this writer will discuss in general terms, based upon cases our office has actually defended, what types of cell phone behavior, under Florida law, gets people arrested.
SENDING A TEXT TO SOMEONE THREATENING TO KILL THEM
This is usually an highly impulsive act committed by a person who is almost always highly emotional and maybe drunk or stoned. This falls under Florida Statute 836.10, is a second degree felony and scores prison under the Florida criminal scoresheet regarding punishment. Prison time, for someone with no record, has been 1-2 years. Also, a charge of this nature is like batting practice to a prosecutor. Usually there is a series of texts to the same victim and since texts never disappear, the screen shots of the texts are simply provided to the defense attorney in discovery. It is this writer’s experience that the cell phone being constantly on one’s person takes away the timeframe where the soon to be accused would have to get in front of a desktop computer. Perhaps a slight delay could give a person time to calm down. These cases also usually involve a very scared victim coming into court and stating their fears on the record at a sentencing hearing.
IF ON PROBATION, DON’T POST GUN AND WEED PICTURES OR HOMEMADE GUN TOTING RAP VIDEOS
This type of violation of probation is almost comical. If one is on felony probation in Florida, they are not supposed to be around guns, dope or anyone committing crimes. The cases this writer has seen of this nature are usually somebody getting even with the probationer. More than one ex-girlfriend has reported her ex-boyfriend to his probation officer concerning acts which could violate him. The defense will try to argue that the pics or videos occurred before the defendant went on probation. The state attorney will bring the ex-girlfriend in to testify that the recording took place while the fellow was on probation. A violation of probation does not mean the state attorney has to prove the violation beyond a reasonable doubt. All that is needed is that the probationer willfully and substantially violated probation, and is decided by the Judge not a jury.
Many couples, as part of their dating relationships, send pictures of themselves to their significant other. Pictures can be transmitted within seconds but the repercussions of a picture or video containing nudity can last a lifetime. Usually the unsuspecting person sending a picture of themselves has not thought it through that this image never goes away and is subject to being posted worldwide by the other person. Sometimes the person with pictures of the other will try to apply leverage for a continued relationship, money or special purchases, or simply to disgrace the other party. Very simply, one person demands something out of the other person, or else the pictures and videos are going internet wide. These demands are usually communicated by text messaging to the victim and the state attorney has a very easy case to present. Extortion under Florida law is a second degree felony and can carry up to a 15 year sentence.
IT’S USUALLY NOT A GOOD IDEA TO SEND PENIS PICS TO SOMEONE, REALLY BAD IF PERSON IS A MINOR
This is really common nowadays. Law enforcement runs “stings” in this area. The fellow who just can’t wait to proudly send his picture will sometimes be communicating with a police officer posing as a minor. The officers are good at this. They will get the perpetrator to admit or acknowledge, many times during the conversation, that the person they are sending the picture to is a minor. This is Florida Statute 847.0138, “transmission of material harmful to minors to a minor by electronic device or equipment” a 3rd degree felony and carries a 5 year maximum sentence. This type of behavior is what sent former congressman Anthony Wiener to federal prison. There are some new players on these cases now also. A person who has transmitted photos will get a call from the “angry father” of the “child” who received the pictures. The supposed father will demand money be transmitted to him on a debit card or else he takes the information to law enforcement. Some acting as parents of the child say they have had to spend money on emergency therapy and counseling for their “child.”
USING YOUR SMART PHONE TO SET UP SEX WITH A MINOR, TRAVELING TO MEET A MINOR
This is a crime that local law enforcement usually teams up with federal task forces to combat. The federal government has the resources to set up these call centers and computer rooms, staffed by young sounding officers, to communicate back and forth with the interested party. When it gets to the arrest stage, local law enforcement handles the arrest. Again, the officer posing as a minor during the conversation will attempt to get the interested adult to repeatedly acknowledge that the child is below 18 years of age, will get the adult to talk about certain sex acts and will many times get the adult to bring certain items to the arranged meeting. When the “traveler” , as these offenders are called, arrives at a house to meet the child, there is an immediate police takedown and the items commonly brought for the minor are wine coolers, pot and certain types of candy. These are go to prison cases. A conviction here means a lifetime of registration as a sex offender. This is FS 847.0135(4), a second degree felony that can bring 15 years. In this writer’s experience, the majority of men arrested for this crime have no prior criminal history. It is also this writer’s experience that, even though television runs programs showing how these stings operate, law enforcement could run these operations every night and make arrests. There is never a victim here either because there is never a child, at least not in these stings. Those arrested on “traveler” cases come from all walks of life and professions.
Plenty of pornography is accessed on smart phones which, as stated before, are essentially smaller, hand held computers but as we all know function just like a tablet, laptop or desktop when it comes to transferring images. Most child porn cases involve a Federal task force also. The prosecution can go either Federal or State. Each photo or video downloaded, shared, stored or transmitted is a 3rd degree felony under Florida law. If the photos or videos show a child being sexually assaulted, those pictures or videos are 2nd degree felonies. Depending on how much the government can prove a person “transmitted”, with each photo being a separate count, the state attorneys can run up very high “scoresheet sentences.” Law Enforcement has the means to uncover and track the activity to a person’s IP address, gets a search warrant, subpoenas records from the person’s internet provider and will usually raid the person’s residence to seize all electronic devices from cellphones to desktop computers. Sentences under FS 847.0137 are just brutal. A person can spend a few hours downloading to their cell phone off of a site and expose themselves to what amounts to the rest of their life in prison.
If you or a loved one is facing a potential charge or have been arrested for one of these internet or sex crimes, please sit down with a few different attorneys. Almost all North Florida criminal attorneys offer a free, no obligation consultation or jail visit. The Forbess Law Firm is very experienced with the types of offenses detailed above and does offer the free consultations. We can be reached at 904-634-0900.