The Undisputed Truth about Smiling Faces – Thoughts on the Use of Facial Recognition


I couldn’t help myself — in 1971, The Undisputed Truth (and The Temptations) released the song, Smiling Faces Sometimes. It is interesting that in 2020, the undisputed truth and faces (more precisely facial recognition software) are making a comeback.

Face recognition software is certain to become more widely used in criminal investigations. This recent article in the New York Times highlights its current use by law enforcement, some of its apparent utility in solving crime and some of the problems associated with its use. For those of us practicing law in the Tampa Bay area, the apparent pioneering use of this technology by law enforcement in Florida, places an additional level of interest.

The anecdotes related in the article and the court cases discussed, highlight the importance for criminal law practitioners make specific discovery requests for all information relating to the use of face recognition software in the identification of defendants. It is apparent that the use of face recognition applications may not be fully set out in police reports and, unless practitioners are astute and diligent in ferreting out the use of this technology, its use may go undiscovered.

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“I’m going back to the border where my affairs ain’t abused” — Elton John, 1970

person-holding-silver-iphone-7-887751In a victory for those of us concerned about the erosion of privacy rights in the digital age, we commend to you this recent United States District Court opinion entered in Alasaad, et al. v. Nielsen, Sec. of the US, Department of Homeland Security, et al.. Case number, 17-CV-11730-DJC.

In a nutshell, U.S. Customs and Border Patrol and, to a lesser extent, U.S. Immigration and Customs Enforcement took the position that, without any individualized reasonable suspicion, it had authority to search the electronic devices of American citizens and permanent resident aliens entering the United States. In a carefully reasoned, detailed opinion, the District Court ruled that, because there is a diminished expectation of privacy at the border, probable cause and a warrant are not required prior to searching an individual’s electronic device; however, before such a search can take place, agents must have individualized reasonable suspicion or a national security concern.

Privacy issues such as our right to be secure in our personal electronic devices is essential to in our modern digital world where so much of our private thoughts and interests are stored in our personal electronic devices. We will continue to monitor this case and others impacting our privacy interests.

Posted in Constitution, Courts, Criminal Law, investigation, police custody, Privelege, Uncategorized, White collar crimes | Tagged , , , , , | Leave a comment

Thank You to My Fellow Hillsborough County Lawyers for Selecting Me as Tampa’s Top Criminal Defense Lawyer

IMG_3463This month I was honored by my peers by being voted as Tampa’s top criminal defense lawyer. I am truly touched by this and while I am very proud of the work we do, I know there are a number of other criminal defense lawyers in Tampa who are equally deserving of this distinction. This honor is not mine alone, our entire law firm shares my passion for the service of our clients. This distinction is the result of the tireless work of Rachel May Zysk, Pam Miller and Rich Miller. I am blessed to work with them and their hard work has been the greatest part of our success.

Posted in Constitution, Courts, Criminal Law, Drug Laws, DUI Law, Ethics, Finanacial crimes, investigation, Lawyers, police custody, Right to remain silent, self incrimination, Sexual Abuse, Trials, Uncategorized, White collar crimes | Leave a comment

Executive Summary Submitted on Behalf of Winston Wilkins

The following is the Executive Summary submitted by Rachel May Zysk of the Suarez Law Firm in furtherance of Winston Wilkins’ Clemency Petition.  Mr. Wilkins was granted  clemency by President Obama on the last day of his presidency (January 19, 2017).



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End Arrest Fees

money-jarThe US Supreme Court has agreed to hear a challenge to a practice in a Minnesota county of  charging a $25 “booking fee” to those who have been arrested, regardless of whether they are later acquitted or even formally charged.  This fund raising effort is dangerous to our liberty because, among other things, it encourages arrests as means of raising revenue, not to mention that the mandatory of collection of these fees is at odds with the presumption of innocence.  We hope the United States Supreme Court will rule such practices violate the Unites States Constitution.  The trend of using the criminal justice system as means of raising revenue is not only at odds with United States Constitution but genuine threat to our liberty that further traps poor people in cycle of poverty.


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The Continuing Saga of Systemic, Prosecutorial Misconduct in Orange County, California

We encourage our readers to carefully follow this unfolding story.

Misconduct by a lawyer, at any level, is troubling but misconduct on the part of those representing the government strikes at the very heart of our freedom.

In our experience prosecutorial misconduct is rare – most prosecutors are honorable people, ethically carrying out their duties.  There is problem however; the problem is that when misconduct is discovered, there seems to be an almost institutional reluctance to exact meaningful punishment.  This was probably most evident in the aftermath of the prosecution of Senator Ted Stevens, where despite serious misconduct, virtually no punishment was dispensed (two prosecutors were suspended but their suspension was later overturned by a review board).

Prosecutors should be commended for the important work they do but we give them tremendous power and trust them to exercise that power with meticulous adherence to the rule of law.  A willful violation of that trust must not be overlooked or easily forgiven – such inaction will lead to a serious of undermining of our freedom and the integrity of our political and justice system.

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Immunity from Criminal Prosecution under Florida’s Stand Your Ground Law

By Rachel May Zysk and Eddie Suarez

October 6, 2016

Florida’s Stand Your Ground Law “substantially amended the affirmative defense of justifiable use of force by abrogating the common law duty to retreat before resorting to deadly force and by enacting section 776.032, which grants immunity from criminal prosecution and civil action to those who use force justifiably in self-defense.”  Dooley v. State, __ So. 3d __, 2016 WL 1602968 at *1 n.1 (Fla. 2d DCA Apr. 22, 2016) (per curiam).  “Section 776.032(1) expressly grants defendants a substantive right to not be arrested, detained, charged, or prosecuted as a result of the use of legally justified force.”  Dennis v. State, 51 So. 3d 456, 462 (Fla. 2010); Rosario v. State, 165 So. 3d 852 (Fla. 1st DCA 2015) (“Florida’s Stand Your Ground law is intended to establish a true immunity from charges and does not exist as merely an affirmative defense.”); § 776.032(1), Fla. Stat. (2014) (“A person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in such conduct and is immune from criminal prosecution.”).

Section 776.012 (use or threatened use of force in defense of person) provides:

  • A person is justified in using or threatening to use force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. A person who uses or threatens to use force in accordance with this subsection does not have a duty to retreat before using or threatening to use such force.
  • A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.
  • 776.012, Fla. Stat. (2014). See also § 776.013, Fla. Stat. (2014) (regarding home protection); § 776.031, Fla. Stat. (2014) (regarding defense of property); McWhorter v. State, 971 So. 2d 154, 156 (4th DCA 2007) (Stand Your Ground Law “altered the law so that now there is ‘no duty to retreat’ under a broad array of circumstances.”) (citing Smiley v. State, 966 So. 2d 330, 335 (Fla. 2007) (“the broad context of this legislation (i.e. ‘not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be’) establishes that there is no duty to retreat before using deadly force in numerous other situations”)).

A rule 3.190(b) motion to dismiss is the appropriate mechanism for raising a pretrial claim of immunity under section 776.032.  Dennis, 51 So. 3d at 462-463 (resolving conflict amongst district courts of appeal regarding pretrial procedural requirements); see also, generally, Ray v. State, 176 So. 3d 1010, 1011-1012 (Fla. 5th DCA 2015) (trial counsel ineffective for failing to file a motion to dismiss pursuant to Stand Your Ground).  A defendant who asserts Stand Your Ground immunity through a motion to dismiss is entitled to an evidentiary hearing.  Rosario, 165 So. 3d at 854 (remanding following trial court denial of motion to dismiss without holding evidentiary hearing); Prof’l Roofing & Sales, Inc. v. Flemmings, 138 So.3d 524, 525 (Fla. 3d DCA 2014) (evidentiary hearing is required in both criminal and civil proceedings); Satyanand v. State, 147 So. 3d 662, 663 (Fla. 5th DCA 2014) (“the Florida Supreme Court expressly held [in Dennis] that where a criminal defendant files a motion to dismiss pursuant to section 776.032, the trial court should conduct a pretrial evidentiary hearing”); Mederos v. State, 102 So. 3d 7, 11 (Fla. 1st DCA 2012) (“When a defendant claims immunity from prosecution under the Stand Your Ground Law, a trial court is to conduct an evidentiary hearing”); Wonder v. State, 69 So.3d 371 (Fla. 4th DCA 2011) (defendant entitled to evidentiary hearing); see also Bretherick v. State, 170 So.3d 766, 768 (Fla. 2015) (“discussing burden of proof “at the pretrial evidentiary hearing.” (emphasis added)).[1]

At the evidentiary hearing, the defendant bears the burden of proving by a preponderance of the evidence that he is entitled to Stand Your Ground immunity.  Bretherick, 170 So.3d at 768 (“We now make explicit what was implicit in Dennis—the defendant bears the burden of proof by a preponderance of the evidence at the pretrial evidentiary hearing.”).  “[T]he trial court must decide the matter by confronting and weighing only factual disputes [not] deny a motion simply because factual disputes exist.”  Peterson v. State, 983 So. 2d 27, 29 (1st DCA 2008) (holding that disputed issues of material fact did not warrant denial of motion to dismiss), approved, Dennis, 51 So. 3d at 458 (“the trial court should decide the factual question of the applicability of the statutory immunity… [we] approve the reasoning of Peterson on that issue.”); Rosario, 165 So. 3d at 854 (the purpose of the evidentiary hearing “is to consider factual disputes.”) (quoting Mederos, 102 So. 3d at 11).

If the defendant demonstrates by the preponderance of the evidence that he used deadly force in a manner statutorily authorized by section 776.032, he should be declared immune from prosecution.  See State v. Gallo, 76 So. 3d 407, 409 n.2 (2d DCA 2011).  In Gallo, “[a]t around 2:30 in the morning, [the defendant and victim] confronted each other outside of a busy night club.”  Id. at 408.  Their argument became physical and at least two other men became involved.  Id.  Gun shots were fired and the victim was hit multiple times, resulting in his death.  Id.  The trial court “held an evidentiary hearing, made determinations of credibility, weighed the numerous pieces of conflicting evidence, and set forth extensive factual findings.”  Id. at 409.  The Second DCA affirmed, noting:

The legislature’s enactment of section 776.032 placed the burden of weighing the evidence in “Stand Your Ground” cases squarely upon the trial judge’s shoulders.  In this case, that burden required the trial judge to make order out of the chaos that occurred in Sarasota on one fateful night in 2010.  The trial judge performed that duty without legal error.Id.

“An objective standard is applied to determine whether the immunity provided by [Stand Your Ground] attaches.”  Mobley v. State, 132 So. 3d 1160, 1164 (Fla. Dist. Ct. App.), reh’g denied (Mar. 13, 2014), review denied, 147 So. 3d 527 (Fla. 2014) (citing Montanez v. State, 24 So. 3d 799, 803 (2d DCA 2010)).  “That standard requires the court to determine whether, based on circumstances as they appeared to the defendant when he or she acted, a reasonable and prudent person situated in the same circumstances and knowing what the defendant knew would have used the same force as did the defendant.”  Viera v. State, 163 So. 3d 602, 604–05 (Fla. 3d DCA 2015) (emphasis added).  However, a defendant’s honest, but mistaken, perception of an imminent threat[2] may not be sufficient to prove that immunity should attach.  See Bretherick v. State, 135 So.3d 337, 341 (Fla. 5th DCA 2013) (per curiam), approved, 170 So.3d 766 (Fla. 2015) (“The issue of who bears the burden of proof may well be significant where the case is an extremely close one”); see also Rudin v. State, 182 So. 3d 724, 726 (Fla. 1st DCA 2015) (defendant failed to prove he was justified in stabbing his stick-wielding father; the two-inch wide, four-foot long stick was not a deadly weapon and caused only minor injuries to the defendant, father testified he did not intend to seriously hurt the defendant, and defendant did not testify).

Accordingly, immunity does not attach to a defendant’s actions once a reasonable person would believe the imminence of the danger had passed.  Bretherick, 135 So.3d at 340.  In Bretherick, a vacationing family was driving to Downtown Disney when a truck nearly sideswiped them while passing in the right lane.  Id. at 338-338.  The truck driver stared at the family in a threatening manner, cut in front of the family’s vehicle, slammed on the brakes, and came to a full stop although traffic was moving.  Id. at 339.  The truck driver got out of his truck and approached the family’s vehicle.  Id.  The father in the family held up a holstered handgun and the truck driver got back into his truck.  Id.  The son in the family (and the defendant in the case) then approached the driver side of the truck while pointing a handgun at the driver.  Id.  The defendant told the truck driver to move his vehicle or he would be shot.  Id.  Unfortunately, the truck driver thought that the defendant told him “if he moved, he would be shot.”  Id.  The defendant, while maintaining his target, told his family the truck driver had a gun.  Id.  The defendant’s mother and sister ran for cover to a ditch.  Id.  At one point, the truck rolled approximately a foot back toward the family’s vehicle.  Id.  The stand-off continued until police arrived, and the defendant was charged with aggravated assault.  Id.  The Fifth DCA held that the trial court “properly determined that there was no longer an imminent threat [when the defendant approached with the gun] and that the Defendant’s subjective fear at that point was objectively unreasonable.”  Id. at 340 (emphasis added).  Thus, “[i] It was not reasonable for the Defendant to believe that it was necessary for him to approach [the] truck with a gun drawn in order to defend himself or his family.”  Id. at 341.

If, however, “the totality of the circumstances leading up to the attack” demonstrate that the “appearance of danger” was real and could only be avoided by force, Florida law makes clear that a person has no duty to retreat.  Mobley, 132 So. 3d at 1166.  In Mobley, the defendant was charged with two counts of second-degree murder after he shot and killed two men outside of a restaurant.  Id. at 1162.  The defendant, his friend, and the two victims were involved in a “petty disagreement” inside of the restaurant.  Id. at 1162-1163.  After the altercation appeared to have ended, one of the victim continued to stare at the defendant and his friend.  Id. at 1163.  The defendant and his friend left the restaurant to smoke a cigarette, and the defendant retrieved his gun from his vehicle.  Id.  The first victim left the restaurant and “delivered a vicious punch” to the defendant’s friend’s face.  Id.  The other victim then rushed to the scene, seemingly to aid in a “renewed attack.”  Id.  The defendant shot and killed both victims.  Id. at 1164.

The trial court determined that the defendant’s actions were not reasonable.  Id. at 1165.  It reasoned that the defendant had not seen the victims with weapons, and the defendant “should have brandished his gun, fired a warning shot or told the attackers to stop because he had a gun.”  Id.  The Third DCA disagreed, finding that while “[i]t may have been more prudent for [defendant and his friend] to skitter to their cars and hightail it out of there when they had the chance,” they were not required to do so.  Id. at 1166.  Additionally, the court found that the events that occurred during the first altercation in the restaurant “provide[d] context for [the defendant’s] actions when the attack outside the restaurant occurred.”  Id.  The court held that it was objectively reasonable for the defendant to believe that force was necessary to prevent great bodily harm, and ordered that the charges against him be dismissed.  Id.


Florida’s Stand Your Ground Law affords three stages of review regarding the applicability of the statute; the first is during the investigative stage.   A practitioner retained early in an investigation is well-advised to advocate the applicability of the immunity to investigators and prosecutors even before charges filed.  If charges filed are filed, practitioners should file a motion to dismiss and insist on an evidentiary hearing; this approach also affords the Defendant the ability to make a clearer record[3] for appellate review.  Lastly, if the first efforts fail, the applicability of the statute and the reasonable of the Defendant’s actions should be zealously advocated at trial.

[1] A defendant may seek review of a trial court’s denial of a motion to dismiss, or a trial court’s denial of an evidentiary hearing on a motion to dismiss, through a petition for a writ of prohibition.  See Little v. State, 111 So. 3d 214, 216 n.1 (Fla. 2d DCA 2013) (Florida Supreme Court “has consistently held” that a writ of prohibition is “an appropriate vehicle to review orders denying motions to dismiss in criminal prosecutions based on immunity.”); Rosario, 165 So. 3d 852 (petition for writ of prohibition appropriate vehicle for challenging trial court’s denial of evidentiary hearing on motion to dismiss).

[2] § 776.012(1), Fla. Stat. (2014) (defendant “reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force”); 776.012(2), Fla. Stat. (2014) (“reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony).

[3] The record on a Motion to Dismiss will be much more focused on the relevant issues in contrast to the record available after trial which will inevitably present a host of other issues and evidence addressing a much wider array of evidentiary matters.

About the Authors

Eddie Suarez and Rachel May Zysk are attorneys with the Suarez Law Firm representing individuals in litigation or investigations, in both state and federal court, involving a broad range of criminal allegations.

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