How to Beat the Felony Charge of Unlawful Use of a Two-Way Communications Device

If you’ve ever seen an interview with a doctor or scientist, they always prance out their white coats because it makes what they’re saying more believable. Now, if you add blinking lights in the background, you’ve taken it to the next level. Experts love technology.

One of the cool things about advanced technology is that, if sufficiently advanced, it is indistinguishable from magic.

For example, who would have thought that a machine could ever read our mind? Neurologists now claim they can “read your mind” by utilizing various technologies, even off the shelf EEG monitors to read electrical patterns given off by the brain (redundant, slightly). When these machines get up to speed, they will help stroke victims who have lost their voice to speak once again.

As smart as neurologists think they are, Silicon Valley may have beaten them to the punch. Google can “read our minds” better than the neurologists and their gizmos. Google knows what I’m going to type before I type it. Heck, Amazon knows what I’m going to order before I order it and I’ve heard that they’ll shift inventory of certain items to a closer warehouse in anticipation of my order. Even scarier yet, some retail stores have hit young ladies with coupons for maternity clothes before they (and their very upset parents) realize they’re pregnant because their purchases fit a purchase pattern of other pregnant folks.

Cops can also predict behavior. Much like the timing of a maternity coupon before the woman knows she’s pregnant, cops can sense when things are about to go down. And, that’s how we arrived at our case for today.

At around 3:00 a.m. a Polk County officer was parked at a church when he noticed noise coming from a nearby (closed) Walgreens. The officer sneaks up on the back door of the Walgreens and calls for backup as he sees two men using a yellow crowbar to pry open the back emergency door of the Walgreens. These guys must have sensed trouble so they ran away and were quickly picked up by a black Mustang. The officer calls in a description of the car, and a few moments later the black Mustang was pulled over down the street. Sanchez v. State 2019 Fla. App. LEXIS 6756 (Fla 2d DCA 2019)

First, a word about late-night criminal cases. Obviously, they make up a large percentage of the arrests out there. You know why your mom didn’t want you out late, past say, 2:00 a.m.? Because most folks are up to no good at that hour. Daft Punk captures it best when they sing:

We’re up all night ’til the sun
We’re up all night to get some
We’re up all night for good fun
We’re up all night to get lucky

Cops can smell late nite shenanigans a mile away, and they’re topping off their coffee and charging up their laptop in anticipation of this bewitching hour much like an elite force checks their assault weapons before a covert mission.

Ok, maybe I’ve overhyped the action found in today’s case. Anyway.

The Mustang had three men in it, one of them Gerardo Sanchez. Gerardo denied all involvement in the attempted burglary and claimed that he just got into town and was lost. A search of the vehicle uncovered burglary tools, and several walkie-talkies. Eventually, Gerardo was convicted of several things (including a different incident that night), but we’re only addressing this attempt to burglarize a Walgreens, and the felony unlawful use of a two-way communications device. The walkie-talkies were the devices the State claimed were used as part of this attempted burglary.

We’re going to tackle the oft-forgotten felony called “unlawful use of a two-way communications device”. You rarely see this charge attached to a burglary, it’s usually part of the combo meal that comes with drug dealing arrests (after all, how can you conduct a drug deal without using some sort of messaging app?). This felony is found in Florida Statute 934.215: “Any person who uses a two-way communications device . . . to facilitate or further the commission of any felony offense commits a felony of the third degree.”

Gerardo took his case to a jury and after the State presented their so-called evidence that he “used” the walkie-talkies, his defense attorney asked the judge to throw out the felony “because the State presented no evidence that the walkie-talkies found in the Mustang’s trunk were used in any way in the commission of any offense.” id. at 9 (we call this a Motion for Judgment of Acquital, or JOA, FYI). Keep in mind that, on a JOA argument, some judges are reluctant to dismiss a felony in the middle of the trial, because, after all, the charge has come this far. The arresting officer had enough evidence to arrest Gerardo for this crime, right? The prosecutor found enough evidence to then file formal charges. And, the jury found him guilty. So, it should come as no surprise that the judge played along.

Maybe all these folks were just mesmerized by the complexity of the charge? (a reverse Chewbacca Defense, I suppose) Let’s peek behind the vail and take a look at just how “hard” it is to prove this felony. As the appellate court noted, this “offense has two elements: (1) the use of a two-way communications device (2) for the purpose of facilitating or furthering the commission of any felony offense.”

So, what evidence did the State present that Gerardo Sanchez used these walkie-talkies during the attempted Walgreens burglary?

The State argues that the reason the Mustang showed up at the Walgreens parking lot just as these men were running away was that they used the walkie-talkies to summon the car. The State claimed this because the officer never saw any sort of cell phone use, so it must have been the walkie-talkies, right?

Notice the nuance to the State’s argument here? The nuance is–we have no evidence.

The appellate court noted that they could find no evidence in the trial record indicating any sort of “usage” of these devices, reasoning that “no one was seen with them or heard using them or talking on them. Moreover, the State offered no explanation for how the walkie-talkies could have been stowed in the spare tire compartment in the less-than-five minutes between the time the initial deputy saw the perpetrators get in the Mustang and when the Mustang was stopped. Hence the State’s evidence was legally insufficient to prove that either Sanchez or his codefendants used the walkie-talkies in furtherance of the burglary, and the trial court should have granted the motion for judgment of acquittal on this count.”

The appellate court threw out Sanchez’ felony for using the walkie-talkies. This charge never should have made it as far as it did. The lesson we can glean from the analysis here applies to all “use” crimes. After reading what happened in Sanchez, we defense attorneys should be able to sniff out a bogus “use” charges and convince the judge to dismiss them before having to pick a jury. When your client is charged with any sort of “use” crime, make sure there’s actual evidence to support it instead of just inference.