A blog by Miami Criminal Defense Lawyer Brian Tannebaum. Commenting on criminal law issues of local and national interest.

Tuesday, May 31, 2011

She Was Innocent

Any criminal defense lawyer knows that the typical defense presented in a pot case is "wasn't mine." That it wasn't marijuana is a rare answer.

In Robin Brown's case, it wasn't.

Didn't matter. It was field tested. Field test said marijuana. The prosecution wanted to be sure, so they sent the sage to a lab.

They just didn't wait for the results before going to Brown's work and taking her out in handcuffs.

They arrested me in front of my customers, my boss, my co-workers,” Brown said. She later was subjected to a body cavity search, a strip search and an overnight stay in jail.

Her lawyer gets the discovery, notes the sage wasn't tested at the lab, and demands the test.


Ullman said one apologetic prosecutor called him to say it was “scary” that someone could be arrested under such circumstances.

Our policy is to make sure the evidence is tested, at the very least, before trial,” said Ron Ishoy, spokesman for the Broward State Attorney’s Office. “Looking back now at this specific police report, it would have been the better practice to test the evidence before filing a formal charge.

But what's the harm when we don't do the "better practice?" Someone goes to jail? So what. Isn't that what we want in America, people in jail?

The surveilance and investigation were intense:

After a day of bird watching:

When Brown returned to her car, a deputy and officer with the Florida Fish and Wildlife Conservation Commission were waiting. They asked what she was doing there.

Bird-watching, she told them. When they continued to question her, she opened her backpack to show them her binoculars and bird book.

That’s when the deputy spotted her sage and the smudging bowl with burned ashes.

Three months later, she found herself in jail.

For untested suspect marijuana that wasn't even marijuana at all.

Now Brown is suing. Her case is on appeal after Circuit Judge John Bowman dismissed her case in January, saying prosecutors are given immunity from lawsuits in the course of doing their jobs.

That's correct. under Florida law prosecutors enjoy absolute immunity for acts performed within the scope of their prosecutorial duties.


The prosecutor must be free from the harassment of unfounded litigation that would deflect his energies from his public duties and undermine the independence of judgment required by his public trust. Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128(1976)

I believe Ms. Brown is out of luck. I believe the appellate court will find this to be negligence, and immune from suit the prosecutor and state attorney's office.

Because we all make mistakes, and society is willing to accept these types of mistakes.

Unless it happens to you.

Non-anonymous comments welcome.Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer.Share/Save/Bookmarkokdork.com rules Post to Twitter


  1. Zachary North3:06 PM

    I had a case like this. It was tobacco. Got all the way to arraignment before the State bothered to read the test results, which were negative.

    Police report definately used the "distinct odor of marijuana based on my training and experience" as justification for the search, and yet none was found.

    At least he'd been able to bond out that same night. Still, where's State's the high-horse in pursuit of justice now? Officer is still out there unreprimanded, as far as I know.

  2. Is there any real reason that when we have the ability to have absolute proof of a violation of the law, and the accused is not a danger to the community, that we don't just rely on an officer's opinion, excuse me, I mean Probable Cause, that a crime occured before we make the arrest. And, if cops are not immune from negligence lawsuits, and it hasn't stopped them from continuing to violate the laws and people's rights, why should prosecutors be immune? Just as when someone violates a law and has to be brought to task for it, so should govenment officials who make negligent decisions and ruin people's lives. This is an outrage.