Almost every felony jury in a Hillsborough County courtroom has six people in the box, not twelve. As founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, I have tried more than 150 jury trials to verdict in more than 25 years in Hillsborough County courtrooms, almost all of them to six jurors. Our attorneys are now raising and preserving the jury-size issue in cases across Tampa Bay while the Supreme Court decides.

How Many Jurors Sit on a Florida Criminal Jury?

Six — unless the charge is a capital one, such as first-degree murder. Section 913.10, Florida Statutes, sets the number:

That means a person facing decades in prison on a robbery, trafficking, or attempted murder charge in Florida gets half the jury a shoplifting defendant would get in most other states — and half the jury any defendant gets in federal court across the street. The verdict must still be unanimous: all six jurors must agree to convict.

The Brancato Law Firm, P.A. — Tampa trial defense — (813) 727-7159

According to the federal Defender Services Office, Florida is one of only six states that still use fewer than twelve jurors in at least some criminal trials, and Florida uses six-member juries for every noncapital crime. The same June 2026 report counted roughly 5,000 Florida criminal convictions pending on direct appeal, the cases most likely to be affected if the Supreme Court changes the rule. Our attorneys try cases in front of these six-person panels every year, and the arithmetic matters: with six jurors, a defendant needs to reach just one less skeptical mind, but also gets far fewer chances that someone on the panel sees the case the way the defense does.

Which Florida Cases Actually Get a Twelve-Person Jury?

Capital murder cases — and that entitlement holds even when the State chooses not to seek the death penalty. In State v. Griffith, 561 So. 2d 528 (Fla. 1990), the Florida Supreme Court held that a prosecutor “cannot, by electing not to seek the death penalty, change the classification of an offense from capital to noncapital” — so a defendant indicted for first-degree murder keeps the statutory right to twelve jurors unless that right is waived, something the defense should never let happen by accident. Our Tampa homicide attorney page explains how we defend first-degree murder cases from indictment through a twelve-person trial.

The “capital felony” label alone, though, is not what controls. Florida defines a capital case for jury purposes as one where death is a possible punishment, so capital sexual battery has long been tried to six jurors. In State v. Hogan, 451 So. 2d 844 (Fla. 1984), the Florida Supreme Court approved a six-person jury for sexual battery of a child because death was not an available penalty, and in Phillips v. State, 316 So. 3d 779 (Fla. 1st DCA 2021), the First District held that a six-person jury was required for the same charge. A 2023 amendment to section 794.011(2)(a), Florida Statutes, now provides a death-or-life sentencing procedure for that offense, but in Oakes v. State, No. 4D2025-2758 (Fla. 4th DCA June 3, 2026), the Fourth District held that a defendant whose offense predated the amendment still was not entitled to twelve jurors. Sit with what that leaves: charges carrying mandatory life, such as trafficking with decades of minimums, attempted murder, and armed robbery, are decided by six people. In our felony practice across the 13th Judicial Circuit, the twelve-person jury is a genuine rarity, which is exactly why the question the Supreme Court agreed to answer reaches nearly every serious case in this state.

Is a Six-Person Jury Legal?

Yes — for now, because of a case that came out of Florida itself. In Williams v. Florida, 399 U.S. 78 (1970), the U.S. Supreme Court held that “the 12-man panel is not a necessary ingredient of ‘trial by jury,’” and that Florida’s six-person jury did not violate the Sixth Amendment. The Court reasoned that the number twelve was a historical accident rather than a functional necessity, and that what matters is whether the jury is large enough to promote group deliberation, resist outside intimidation, and represent a cross-section of the community.

Eight years later, the Court drew the floor. In Ballew v. Georgia, 435 U.S. 223 (1978), it struck down Georgia’s five-person jury, concluding — based on a body of empirical studies — that “the purpose and functioning of the jury in a criminal trial is seriously impaired, and to a constitutional degree, by a reduction in size to below six members.” So the line has sat at six ever since: five is unconstitutional, six is permitted, and Florida has stayed at the constitutional minimum for over half a century.

Why Does Jury Size Matter?

Because the research the Supreme Court itself relied on in Ballew shows smaller juries deliberate worse. The Ballew Court found that as juries shrink, they are less likely to have members who remember each important piece of evidence, less able to counterbalance individual jurors’ biases, and less likely to represent a true cross-section of the community — and that smaller panels raise the risk of convicting the innocent.

For the defense, the practical stakes are concrete. A Florida verdict must be unanimous, so every juror is a potential holdout against a weak case — and six jurors means half as many people who might catch the flaw in the State’s evidence, half as many life experiences in the room, and far fewer minority voices on any given panel. When our attorneys pick a jury at the Hillsborough County Courthouse, we are choosing six people who will carry the full weight most states spread across twelve. That is exactly the concern now in front of the Supreme Court.

The U.S. Supreme Court Is Reconsidering: Kian v. Florida

On June 15, 2026, the United States Supreme Court granted certiorari in Kian v. Florida, No. 25-6623, to decide whether a defendant is deprived of his Sixth and Fourteenth Amendment rights “to a trial by a 12-person jury when the defendant is charged with a serious felony.” The case comes out of Florida’s Fourth District Court of Appeal, which affirmed in Kian v. State, 421 So. 3d 439 (Fla. 4th DCA 2025), where Hamed Kian was convicted by a unanimous six-person jury of five felony counts of practicing chiropractic medicine with a suspended license. It asks the Court to reconsider Williams itself.

Challengers have been knocking on this door for years. Florida’s appellate courts have repeatedly rejected six-person jury challenges — the Fourth District did so again in Gonzales v. State, No. 4D2025-2161 (Fla. 4th DCA Aug. 26, 2026), citing its earlier decision in Guzman v. State, 350 So. 3d 72 (Fla. 4th DCA 2022), and the U.S. Supreme Court declined to take the issue up as recently as 2024 in Cunningham v. Florida, 144 S. Ct. 1287 (2024). But those same August 2026 opinions now add three words that tell you everything about where this is heading: “But see Kian.” The Court that would not hear the issue two years ago has now agreed to hear it, and the case is set for oral argument on January 13, 2027.

Here is the road that led there:

The Brancato Law Firm, P.A. — (813) 727-7159

Ramos matters in this story for a reason: in Ramos v. Louisiana, 590 U.S. 83 (2020), the Court overruled decades of tolerance for non-unanimous verdicts because history and the jury’s function demanded it. The Kian petition asks the Court to apply that same reasoning to jury size. No one knows how Kian will come out — but the Court does not take cases like this to leave everything as it is.

What Happens to Florida Cases While Kian Is Pending?

Six-person juries remain fully legal, and Florida courts are still bound by Williams until the Supreme Court says otherwise. Florida’s appellate courts made that explicit this summer: in Rogers v. State, No. 6D2025-0883 (Fla. 6th DCA June 29, 2026), the court refused to let a defendant add the jury-size issue after briefing closed, holding that claims based on a cert grant “are speculative and premature.” Critically, it also held that because the defendant left the issue out of his initial brief, he had waived it.

That waiver holding is the practical heart of this entire subject. Rogers also acknowledged the other side of the coin: if the Supreme Court announces a new rule, defendants whose appeals were already final “could seek post-conviction relief to the same extent as any other person” — but whether a new rule would apply retroactively to final cases is a separate question Florida courts would have to resolve. New rules generally apply to cases still pending on direct review; they reach final convictions only through a much narrower retroactivity doctrine. In plain terms: the people best positioned to benefit from a defense win in Kian are the ones whose lawyers put the objection on the record before their case became final.

How Do You Preserve the Jury-Size Issue in Your Case?

By putting it on the record at every stage — even though today’s courts will deny it. When our firm handles a felony case heading to trial while Kian is pending, preservation looks like this:

1. Demand a twelve-person jury in writing before trial. The motion will almost certainly be denied under Williams and § 913.10 — the point is the record.
2. Object when the six-person panel is sworn. A contemporaneous objection anchors the issue at trial, where appellate courts require it to be made.
3. Raise it in the opening brief on appeal. Rogers shows what happens when it appears late: waiver, no matter what the Supreme Court does afterward.
4. Track finality. A case pending on direct review when Kian is decided stands on far stronger ground than one that became final the month before — timing decisions, including whether to seek rehearing, can matter.

None of this costs the defense anything, and all of it is insurance. Our attorneys are building these records now in Hillsborough, Pinellas, and Pasco County cases, because the cheapest issue to preserve is the one you preserve before the law changes.

Facing a Felony Trial in Tampa Bay While Kian Is Pending?

If you or a family member has a felony case heading toward trial, this is a moment when the calendar itself is a defense consideration. The jury that decides the case, the objections made before it is sworn, and the timing of the appeal could all look different a year from now. Call The Brancato Law Firm at (813) 727-7159 — our attorneys can evaluate whether the jury-size issue belongs in your case and make sure nothing is waived while the Supreme Court decides.

Frequently Asked Questions: Florida Jury Size and Kian v. Florida

How many jurors are on a jury in Florida?

Six, in every criminal case except capital cases, which get twelve. Fla. Stat. § 913.10. In our Tampa Bay trials, that means six jurors decide felonies carrying decades of prison exposure.

Does a Florida jury verdict have to be unanimous?

Yes — all six jurors must agree before a defendant can be convicted, and a single holdout means no conviction. That unanimity requirement is one reason jury selection is where our attorneys invest so heavily in every trial.

What is Kian v. Florida?

Kian v. Florida, No. 25-6623, is a U.S. Supreme Court case, accepted for review on June 15, 2026, that will decide whether trying a serious felony to a six-person jury violates the Sixth Amendment. It asks the Court to reconsider Williams v. Florida, the 1970 decision that approved Florida’s six-person jury.

Is a six-person jury unconstitutional?

Not under current law — Williams v. Florida upheld six-person juries in 1970, and Florida courts remain bound by it while Kian is pending. Five-person juries, however, have been unconstitutional since Ballew v. Georgia in 1978. We treat the question as live and preserve it in our clients’ cases.

If the Supreme Court strikes down six-person juries, will it apply to old cases?

Nobody knows yet — new constitutional rules generally apply to cases still pending on direct appeal, while reaching already-final convictions requires a separate retroactivity ruling. That uncertainty is exactly why preserving the issue now matters so much; The Brancato Law Firm is doing that in pending cases rather than betting on retroactivity later.

How long has Florida used six-person juries?

Since 1877. As the Sixth District noted in Rogers v. State (2026), Florida has permitted six-person juries in non-capital cases since an 1877 statute, and the U.S. Supreme Court’s nationwide approval of the practice in 1970 came in a Florida case, Williams v. Florida. In our experience, most clients are surprised to learn the tradition is that old — and that it has never before faced the direct reconsideration it faces now in Kian.

Can my lawyer demand a 12-person jury in Florida right now?

Yes — the demand will be denied under current law, but making it in writing and objecting at trial is what preserves the issue if Kian changes the rule. The attorneys of The Brancato Law Firm, P.A. build that record in felony cases heading to trial. Call (813) 727-7159 for a free, confidential consultation.

For more about our defense strategies, visit our Top-Rated Tampa Homicide Attorney page.

Related reading: How Trial Preparation Builds a Stronger Defense · How to Decide Whether to Accept a Plea Bargain · How Does a Bond Hearing Work in Tampa? · The Complete Guide to Homicide Charges in Florida

For how this fits into the rest of a case, see our guide to each stage of a Florida criminal case.

The Law May Be About to Change — Your Record Should Be Ready

Kian v. Florida is set for argument on January 13, 2027, and the defendants who benefit will be the ones whose lawyers preserved the issue before the decision came down. If you’re facing a felony charge in Hillsborough, Pinellas, or Pasco County, call the attorneys of The Brancato Law Firm, P.A. — founded by Tampa Criminal Defense Attorney Rocky Brancato — at (813) 727-7159. What goes on the record before your trial may decide what relief is available after the Supreme Court rules. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for criminal defense in Spanish and Haitian Creole in Tampa.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

If police placed your phone at a crime scene, the case against you may rest on data the Constitution now protects. As founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and a former police academy legal instructor, I taught officers where the Fourth Amendment line sits, and I have spent more than 25 years in Hillsborough County courtrooms. Our attorneys use that line every week in suppression litigation, and Chatrie just redrew it for every criminal case in Florida built on cell-phone location data.

What Did the Supreme Court Decide in Chatrie v. United States?

The Supreme Court held that when police obtained a suspect’s Google “Location History” through a geofence warrant, they conducted a Fourth Amendment search — because people keep a reasonable expectation of privacy in their cell-phone location data. Chatrie v. United States, 146 S. Ct. 2193 (2026), extends the Court’s landmark 2018 decision in Carpenter v. United States, 585 U.S. 296 (2018) (which protected cell-site location records) to the far more precise location logs generated by smartphone apps.

Three points from the decision matter most for anyone facing charges. First, duration doesn’t save the government: the Court rejected the argument that a “short” window — the two hours pulled in Chatrie’s case — is too little to trigger the Fourth Amendment, explaining that even brief location records can reveal deeply private facts. Second, storage by a third party doesn’t matter: the Court held the “third-party doctrine” does not apply, because location data is “not truly shared” in any meaningful sense — it is simply the automatic price of using a modern phone. Third, the Court decided only that a search occurred. It vacated the Fourth Circuit’s judgment and sent the case back to decide whether the warrant satisfied probable cause and particularity, and whether the good-faith exception saves the evidence if it did not.

What Was the Chatrie Case About?

The case began with a bank robbery that stumped investigators. On May 20, 2019, a man robbed a credit union in Midlothian, Virginia; witnesses and surveillance showed him approaching from the corner of a neighboring church while appearing to talk on a cell phone, but the trail went cold. Police then obtained a geofence warrant directing Google to identify devices with Location History enabled near the credit union around the robbery. That process ultimately pointed to Okello Chatrie, whose phone data placed him at the scene — two hours of his movements, pulled from Google’s servers. He moved to suppress, lost on good-faith grounds in the lower courts, and the Supreme Court took the case to answer the threshold question: was this a “search” at all? Six Justices said yes.

What Is a Geofence Warrant — and Can Google Still Answer One?

A geofence warrant works in reverse: instead of naming a suspect and searching their data, police draw a virtual perimeter around a crime scene and ask a company — most famously Google — to identify every device inside it during a time window. The process in Chatrie ran in steps: first an anonymized list of devices in the zone, then expanded data to narrow the list, then the “unmasking” of specific accounts — names, emails, phone numbers. Justice Jackson’s concurrence flagged the core defect defense lawyers now argue: the later steps often happen with no criteria and no judge supervising which devices get unmasked, leaving “too much to the discretion” of the officers.

Geofence Surveillance, By the Numbers

The scale of this surveillance tool is why the decision matters far beyond one Virginia robbery — the numbers below come from the opinion itself.

Two details from the opinion deserve emphasis. Location History runs constantly in the background once enabled — whether or not the app is open, whether or not the phone is in use — and it keeps running even if the user deletes the app that turned it on. And Android users are specifically warned their devices will not “work correctly” unless they turn it on. The Court treated that reality for what it is: tracking as a default condition of modern life, not a voluntary broadcast of your whereabouts.

Is My Cell-Phone Location Data Protected by the Fourth Amendment?

Yes — after Chatrie, your historical location data is constitutionally protected whether it comes from cell towers or from app-based logs, and regardless of how short the time window is. The decision closes the two arguments the government had been using to avoid Carpenter.

The undecided fourth row is not a footnote — it is the battleground. A ruling that a search occurred means nothing in a specific case until a court examines whether the warrant (if there was one) was supported by probable cause and described the search with particularity. That examination is defense work, done case by case, device by device.

How Did the Justices Vote in Chatrie?

Justice Kagan wrote the majority opinion, joined by Chief Justice Roberts and Justices Sotomayor, Kavanaugh, and Jackson — with Justice Gorsuch concurring in the judgment, making six votes for the outcome. Justice Jackson added a concurrence (joined by Justice Sotomayor) arguing the multi-step geofence process gave officers an unsupervised “roving commission.” Justice Gorsuch would have reached the result on different reasoning. Justice Alito dissented — warning the decision “will send seismic waves through our Fourth Amendment doctrine” — joined in part by Justices Thomas and Barrett, and Justice Barrett filed her own dissent.

The lineup matters for what comes next: the majority’s reasoning was joined by five Justices, the case produced four separate opinions, and the open questions — warrant validity, good faith, other kinds of digital records — will be litigated against that backdrop for years.

Does Chatrie Apply to Criminal Cases in Florida?

Yes — immediately and automatically. Florida’s own constitution, Article I, Section 12, commands that Florida’s search-and-seizure right “shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.” So Chatrie is not persuasive authority here; it is the governing rule in every Florida courtroom, from the 13th Judicial Circuit in Tampa outward.

Florida law enforcement already works with location technology under state statutes like Fla. Stat. § 934.42, which lets officers get court orders for mobile tracking devices — and which expressly makes U.S. Supreme Court standards govern their installation and monitoring. After Chatrie, those standards now clearly include a warrant requirement for historical app-based location data. In practice, our attorneys look for location evidence in Tampa Bay cases in three familiar places: geofence-style requests tied to a crime scene, account-specific demands for a suspect’s Google or Apple data, and downloads from a seized phone itself. Each source now has its own constitutional checklist, and a defect in any of them supports a motion to suppress. Our Tampa forensic science defense attorney page explains how we bring in digital-forensics experts to test that evidence.

What Comes Next — Are Reverse Keyword Warrants Legal?

Chatrie answered the geofence question but teed up the next fight: reverse keyword warrants, where police ask a search engine to identify everyone who searched a particular term — a victim’s name, an address, a chemical — during a window of time. The logic of Chatrie (a dragnet over mostly innocent people’s private data, revealed only because using the internet is the price of modern life) applies with obvious force, but the Supreme Court has not yet decided it, and lower courts are split on how far Carpenter and now Chatrie reach. The same goes for other data dragnets: tower dumps, automated license-plate reader networks, and purchases of location data from commercial brokers. Currency matters in this area more than almost any other — the constitutional rules your case is judged by may literally change between arrest and trial, which is why preserving these issues early is essential.

What Should You Do If Police Used Phone Location Data in Your Case?

Get the warrant paperwork in front of a defense lawyer before you make any decisions about your case. After Chatrie, the questions our attorneys ask are concrete: Was there a warrant at all, or just a subpoena or “exigent” request? Does the affidavit establish probable cause tied to the place and time searched? Did the warrant limit the geofence’s size, duration, and the unmasking steps — or did officers get a blank check? Was your data pulled at step one or only after unsupervised narrowing? Every one of those defects is a suppression argument, and in a case built on placing your phone at a scene, suppression is usually the whole case. Location-data challenges also travel with the rest of the digital-privacy toolbox — see our guides to whether the State can get your medical records in a DUI case and what to do after being arrested in Tampa. And because these motions are won on timing — witnesses’ memories, preservation letters to Google, litigation before the State’s filing decision — the sooner the defense starts, the more options you have. If you learn you are under investigation before any arrest, our representation before charges are filed can put those challenges in front of the prosecutor early.

For more about our defense strategies, visit our Tampa Criminal Forensic Science Attorney page.

For how this fits into the rest of a case, see our overview of how a Florida criminal case moves from investigation to appeal.

Frequently Asked Questions

Do police need a warrant to get my Google location history?

Yes. After Chatrie v. United States (2026), obtaining your historical cell-phone location data — including Google Location History — is a Fourth Amendment search, so police generally need a valid warrant supported by probable cause. Our attorneys examine whether the warrant in your case actually meets those requirements, because “a warrant existed” is not the same as “the warrant was valid.”

Can police still use geofence warrants after Chatrie?

Geofence warrants were not banned — the Court held only that they are searches, which means they require valid warrants. Whether any particular geofence warrant satisfies probable cause and particularity is now the contested question, and Justice Jackson’s concurrence gives the defense a roadmap for attacking the unmasking steps. We raise those challenges by motion to suppress in Florida courts.

Does Chatrie apply if police only got a couple hours of my location data?

Yes — that was precisely the government’s argument, and the Court rejected it. Two hours of Location History was enough to trigger the Fourth Amendment because even short windows reveal private associations. There is no minimum number of hours before your rights apply.

Will the evidence in my case be thrown out automatically?

No. Chatrie decided that a search occurred; whether evidence is suppressed depends on whether the warrant was valid and whether the good-faith exception applies — the questions remanded in Chatrie’s own case. That is exactly the analysis The Brancato Law Firm, P.A. performs when location data appears in discovery, because the suppression fight is where these cases are won or lost.

How do I know if a geofence warrant was used in my case?

You usually learn it from discovery — search warrant returns, affidavits, or references to Google legal process in reports. Defense counsel can demand the full warrant package, the data Google produced at each step, and the communications around it. If you were arrested in Hillsborough, Pinellas, or Pasco County and phone location evidence is involved, The Brancato Law Firm, P.A. can obtain and audit that paperwork.

Does turning off Location History protect me?

Turning it off stops Google’s Location History logging going forward, but other apps, your carrier’s cell-site records, and data brokers still generate location trails — each with its own legal protections. Chatrie and Carpenter now protect the two biggest categories. The safest assumption is that your phone creates records someone may one day try to use, and the Constitution now stands between those records and warrantless access.

Chatrie redrew the digital-privacy map on June 29, 2026, and the next rounds — warrant validity, good faith, keyword warrants — are being litigated right now. If cell-phone location data shows up anywhere in your Tampa Bay case, call the attorneys of The Brancato Law Firm, P.A. — founded by Tampa Criminal Defense Attorney Rocky Brancato — at (813) 727-7159 before the State’s filing decision is made. Suppression issues are strongest when they are raised early, and location-data challenges are the sharpest new tool in the box. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for Spanish-speaking and Haitian Creole-speaking clients.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

As founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and a former police academy instructor who taught officers the law of stops and searches, I read Vasquez Perdomo as a case about the Fourth Amendment as much as immigration. Many Florida criminal cases now begin with an encounter involving an officer who also holds federal immigration authority. Our attorneys look at how every stop started, because a stop without reasonable suspicion can still lead to suppression of evidence in a Florida criminal case.

What Happened in Noem v. Vasquez Perdomo?

The case began as a challenge to immigration sweeps in the Los Angeles area in the summer of 2025. Pedro Vasquez Perdomo and other plaintiffs, along with immigrant rights groups, sued the Department of Homeland Security in the U.S. District Court for the Central District of California (No. 2:25-cv-05605). They alleged that agents were stopping people at bus stops, car washes, tow yards, farms, and day-labor sites based on how they looked, what language they spoke, where they were, and what work they did.

On July 11, 2025, District Judge Maame Ewusi-Mensah Frimpong issued a temporary restraining order that barred stops based solely on four factors, alone or in combination:

1. Apparent race or ethnicity.
2. Speaking Spanish or speaking English with an accent.
3. Presence at a particular location, such as a bus stop, car wash, tow yard, day-labor pickup site, or agricultural site.
4. The type of work a person does.

The Ninth Circuit refused to stay that order on August 1, 2025. The government then asked the Supreme Court for emergency relief.

What Did the Supreme Court Decide?

The Supreme Court granted the government’s application and stayed the district court’s order. In Noem v. Vasquez Perdomo, 606 U.S. ___, 146 S. Ct. 1 (2025), the Court’s one-paragraph order stayed the July 11 order “pending the disposition of the appeal” in the Ninth Circuit and any timely petition for certiorari. The order did not explain the Court’s reasons, which is common for rulings on the emergency docket.

What Did Justice Kavanaugh’s Concurrence Say?

Justice Kavanaugh wrote that the four factors, taken together, can give agents reasonable suspicion of illegal presence in the Los Angeles area. He wrote: “To be clear, apparent ethnicity alone cannot furnish reasonable suspicion; under this Court’s case law regarding immigration stops, however, it can be a ‘relevant factor’ when considered along with other salient factors.” He relied on the high number of people in the Los Angeles region without legal status, which he put at “about 2 million illegal immigrants out of a total population of 20 million.”

He also described the stops as brief: “If the person is a U. S. citizen or otherwise lawfully in the United States, that individual will be free to go after the brief encounter.” And he concluded that the plaintiffs likely lacked standing to seek a broad, forward-looking injunction under Los Angeles v. Lyons, because they could not show they were likely to be stopped again. Commentators have since used the term “Kavanaugh stop” for a brief immigration stop justified by a combination of these factors.

What Did Justice Sotomayor’s Dissent Say?

Justice Sotomayor, joined by Justices Kagan and Jackson, argued that stops based on the four factors violate the Fourth Amendment because they are not individualized. Quoting earlier precedent, she wrote that a set of facts cannot be reasonable suspicion if it “describe[s] a very large category of presumably innocent” people. She warned that the ruling pushes citizens to carry proof of status to move freely, which she described as creating a second-class citizenship status for people who look or sound a certain way.

How Does Vasquez Perdomo Fit With Brignoni-Ponce?

Vasquez Perdomo builds on a 50-year-old case about roving Border Patrol stops. In United States v. Brignoni-Ponce, 422 U.S. 873 (1975), Border Patrol officers in southern California stopped a car only because its three occupants appeared to be of Mexican descent. The Supreme Court held that officers on roving patrol need “specific articulable facts” supporting reasonable suspicion, and that Mexican ancestry “standing alone” does not justify a stop, though it can be “a relevant factor.” Justice Kavanaugh cited that “relevant factor” language; Justice Sotomayor cited the same case for its holding that appearance alone is not enough.

Scholars warned about this tension long before 2025. In “How Racial Profiling in America Became the Law of the Land: United States v. Brignoni-Ponce and Whren v. United States and the Need for Truly Rebellious Lawyering,” 98 Geo. L.J. 1005 (2010), presented at a Georgetown Law Journal symposium, then-Dean Kevin R. Johnson of UC Davis School of Law examined how Brignoni-Ponce’s “relevant factor” language and Whren’s tolerance of pretext stops left room for race to shape enforcement decisions.

Has the Supreme Court Said Anything About Race-Based Stops Since?

Yes. Three months later, in Trump v. Illinois, 607 U.S. 1 (2025), a December 23, 2025 decision about the National Guard deployment in Illinois, Justice Kavanaugh wrote in a concurrence that the Fourth Amendment requires that immigration stops “be based on reasonable suspicion of illegal presence, stops must be brief, arrests must be based on probable cause, and officers must not employ excessive force.” He added: “Moreover, the officers must not make interior immigration stops or arrests based on race or ethnicity.”

Where Does the Vasquez Perdomo Case Stand in 2026?

The Supreme Court’s stay is still the last word on the July 2025 restraining order, and the lawsuit continues in the district court. According to the Civil Rights Litigation Clearinghouse docket summary, the Ninth Circuit sent the case back in October 2025 so the district court could dissolve the Fourth Amendment portion of the restraining order. In 2026, the district court largely denied the government’s motion to dismiss, the plaintiffs filed a second amended complaint, and in June 2026 they moved for class certification and a new preliminary injunction against alleged warrantless arrests. As of the most recent docket update we reviewed, those motions had not been decided.

Does Vasquez Perdomo Apply in Florida?

The stay itself applies only to the Los Angeles order, but the reasoning reaches Florida because immigration enforcement here runs heavily through local police and sheriffs. Section 908.11, Florida Statutes, requires every sheriff or chief correctional officer operating a county jail to enter a written 287(g) agreement with U.S. Immigration and Customs Enforcement, which lets trained local officers perform certain immigration functions.

Participation goes well beyond county jails. A statewide snapshot posted by FDLE, the Immigration Agency Data Summary, which uses ICE and Criminal Justice Standards and Training Commission data as of June 2026, shows that 272 of 394 Florida law enforcement agencies held a 287(g) Task Force Officer agreement, and that Florida had 9,026 credentialed designated immigration officers.

That means a stop in Tampa Bay may be made by an officer who can ask both criminal and immigration questions. Justice Kavanaugh’s later statement in Trump v. Illinois, that officers “must not make interior immigration stops or arrests based on race or ethnicity,” is a point our attorneys raise when the facts show appearance or language drove the stop.

Can Evidence From an Unlawful Immigration Stop Be Suppressed in Florida?

In a Florida criminal case, yes, evidence from a stop made without reasonable suspicion can be suppressed under the Fourth Amendment, no matter which agency made the stop. A traffic or street stop that leads to drugs, a weapon, or a no-valid-license charge rises or falls on what the officer knew before the stop. Our Tampa criminal traffic lawyer page covers the license charges that often follow these stops.

Immigration court is different. In INS v. Lopez-Mendoza, 468 U.S. 1032 (1984), the Supreme Court held that the exclusionary rule generally does not apply in civil deportation proceedings, while leaving open “egregious violations of Fourth Amendment or other liberties.” So a suppression win in state court does not automatically end an immigration case, and a person facing both needs advice on each. Our firm handles the Florida criminal case and works with the client’s immigration counsel.

What Should You Do If You Are Stopped and Questioned About Immigration Status?

Stay calm, do not run or resist, and do not lie or show false documents. You can ask whether you are free to leave. You can decline to answer questions about where you were born or your immigration status and say you want to speak with a lawyer, though a driver must still produce a license, registration, and proof of insurance on request in Florida. Remember the officer’s name, agency, and badge number, and write down what happened as soon as you can.

If a family member is arrested in Hillsborough County, language matters from the first hearing. Under section 903.046, Florida Statutes, immigration status is one of the factors a judge considers in setting bail, and in the 13th Judicial Circuit, the Court Interpreter Center provides interpreters for first appearance, arraignment, and trial. Our guides to how a bond hearing works in Tampa and to our Spanish-speaking criminal defense team explain what families can expect. For another recent Fourth Amendment decision, see our post on Case v. Montana and police welfare checks.

Frequently Asked Questions About Noem v. Vasquez Perdomo

Did the Supreme Court rule that ICE can use race in immigration stops?

No, the Court issued an unexplained stay, and Justice Kavanaugh’s concurrence said apparent ethnicity alone cannot furnish reasonable suspicion, though it can be one factor among others. The Brancato Law Firm reads the stop reports in our clients’ Florida cases to see whether anything beyond appearance or language supported the stop.

Is Noem v. Vasquez Perdomo a final decision?

No, it is an emergency stay that keeps the July 2025 restraining order on hold while the case continues in the lower courts. Our attorneys at The Brancato Law Firm follow the litigation because a later ruling could change how courts view these stops.

What is a Kavanaugh stop?

A Kavanaugh stop is a commentator’s term for a brief immigration stop justified by a combination of factors such as location, type of work, language, and apparent ethnicity, based on Justice Kavanaugh’s concurrence. The Brancato Law Firm challenges the reasonable suspicion behind any stop that leads to a Florida criminal charge; see our criminal traffic defense page for license cases.

Do I have to answer an officer’s questions about my immigration status in Florida?

No, you generally have the right to remain silent and to ask for a lawyer, but you should not lie, run, or present false documents, and drivers must show a license on request. Our attorneys at The Brancato Law Firm, including Spanish-speaking staff, can explain these rights to your family in their own language.

Can a U.S. citizen be detained in an immigration stop?

Yes, the stops allowed by the stay can involve U.S. citizens, and Justice Kavanaugh wrote that a citizen “will be free to go after the brief encounter.” The Brancato Law Firm advises clients who were detained to write down the details right away, because those facts matter if a criminal charge follows.

Can a Florida criminal case be dismissed because of an illegal stop?

Often the remedy is suppression of the evidence, which can lead the State to drop the charge if the evidence was its whole case. Our attorneys at The Brancato Law Firm file motions to suppress in Hillsborough, Pinellas, and Pasco County courts when a stop lacked reasonable suspicion; our Tampa criminal defense team can review the report.

For how this fits into the rest of a case, see our stage-by-stage guide to the Florida criminal case process.

Talk to a Tampa Defense Attorney After a Stop

If a stop led to an arrest, the first decision is whether to challenge how the officer made it, and that review should happen before the arraignment. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159. You can call us at any hour, and our office is two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French, so families can talk with us directly about the criminal case and its immigration consequences.

For more about our defense strategies, visit our Tampa Criminal Traffic Lawyer page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

When a judge rules on a suppression motion after a welfare check, the question is what the officers knew at the moment they crossed the threshold, and what they did after. I taught officers those rules as a former police academy instructor, and I have argued them for more than 25 years in Hillsborough County courtrooms. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm, and our attorneys challenge warrantless home entries in criminal cases across Hillsborough, Pinellas, and Pasco Counties.

What Happened in Case v. Montana?

William Case told his ex-girlfriend on the phone that he was going to kill himself. She heard a clicking sound like a gun being cocked, then “a pop” and silence, and she called 911. Three officers were sent to do “a welfare check on a suicidal male.” They knew Case had alcohol and mental health problems, had threatened suicide before, and had once appeared to try “suicide by cop.”

At the house, nobody answered their knocks or calls. Through the windows the officers saw empty beer cans, an empty handgun holster, and a notepad they believed was a suicide note. About 40 minutes after arriving, they went in. Case stepped out of a bedroom closet holding what looked like a gun, and an officer shot and injured him. Officers found a handgun nearby, and Case was charged with assaulting a police officer.

Case moved to suppress all evidence from the entry. The trial court denied the motion, a Montana jury convicted him, and a divided Montana Supreme Court upheld the entry. The U.S. Supreme Court took the case because federal appeals courts disagreed about whether emergency entries require probable cause.

What Did the Supreme Court Hold in Case v. Montana?

The Court held that an officer may enter a home without a warrant to render emergency aid if the officer has “an objectively reasonable basis for believing” that an occupant is seriously injured or imminently threatened with such injury. Justice Kagan’s opinion for a unanimous Court in Case v. Montana, 607 U.S. 107 (2026) reaffirmed the test from Brigham City v. Stuart, 547 U.S. 398 (2006), where officers entered after seeing a fight through a window, and said that test applies “with no further gloss.”

The Court also repeated a limit that matters in criminal cases: “an emergency-aid entry provides no basis to search the premises beyond what is reasonably needed to deal with the emergency while maintaining the officers’ safety.” Applying the standard, the Court found the officers had a reasonable basis to believe Case had shot himself or was about to, and it affirmed his conviction.

How Did Case v. Montana Change the Law in Florida?

Case v. Montana changed the federal rule that applied in Florida. The Court listed the Eleventh Circuit, the federal appeals court that covers Florida, among the courts that had required probable cause for emergency entries, citing United States v. Cooks, 920 F.3d 735 (11th Cir. 2019). That probable-cause gloss is gone; federal courts in Florida now apply the Brigham City standard as written.

Florida’s state courts were already close to the Brigham City test. In Seibert v. State, 923 So. 2d 460 (Fla. 2006), a roommate called 911 to report that Michael Seibert was suicidal. Seibert took several minutes to answer the door, opened it only partway, and slammed it shut. The Florida Supreme Court upheld the entry because “an objectively reasonable basis” existed to believe there was “an immediate need for police assistance for the protection of life.” The court also held that the search must be “strictly circumscribed by the exigencies which justify its initiation,” and that once officers determine no emergency exists, “any subsequent search is illegal.”

That scope rule is where many Florida welfare-check cases are won. Under Seibert, officers may seize contraband in plain view while the emergency is still being resolved, but not after it ends. Our attorneys build the timeline from body camera footage, dispatch records, and CAD logs to show the moment the emergency ended and what the officers did next.

What Did Justice Sotomayor Say About Mental Health Welfare Checks?

Justice Sotomayor joined the Court’s opinion but wrote separately to warn that entering a home is not always the reasonable response to a person in a mental health crisis, because “the presence of law enforcement at times can escalate the situation rather than ameliorate it, putting both the occupant and the officers in danger.” She cited research showing that people with serious mental health conditions are “seven times more likely to be killed during police interactions” than the general population, and a Washington Post review finding that over a 2-year period, “calls for help resulted in law enforcement officers shooting and killing the very people they were called on to assist” in 178 cases.

She also cited a 2024 American Journal of Public Health study by Ward and colleagues finding that police shootings involving behavioral health concerns were 2.1 times more likely to be fatal than other police shootings, and a 2018 International Journal of Law and Psychiatry study by Saleh and colleagues finding that people with mental illness were “2.8 times more likely” to “be killed in their own homes.” She suggested officers may sometimes do better to call from a distance, contact family, or bring in crisis-trained officers or mental health professionals before entering, and she wrote that once officers decide to go in, the “manner” of the entry and their conduct inside must also be “reasonable.”

A concurrence is not the holding, but it is persuasive authority a Florida judge can consider. The majority noted that Case never challenged how the officers entered or what they did inside, so those questions remain open for future cases.

How Often Do Florida Police Respond to Mental Health Crises?

Constantly. In fiscal year 2023-2024, Florida conducted 161,576 involuntary examinations under the Baker Act, and 52.36% of them were initiated by law enforcement, according to the Baker Act Reporting Center at the University of South Florida. Involuntary examinations fell 20% from fiscal year 2019-2020, when there were 202,598.

Under section 394.463, Florida Statutes, an officer “may take a person who appears to meet the criteria for involuntary examination into custody.” Many welfare checks end that way. Some end with a criminal charge instead, based on what officers saw inside the home or on how the encounter went. When the person in crisis is also charged with a crime, our Tampa criminal mental health lawyer team handles both the Fourth Amendment issues and the mental health defense.

Can You Challenge Evidence Found During a Welfare Check in Florida?

Yes. A motion to suppress can challenge a welfare-check entry on several grounds, even after Case v. Montana. These are the questions our attorneys ask in every case:

1. Did officers have an objectively reasonable basis to believe someone inside was seriously hurt or in imminent danger? A stale tip, an anonymous call with no detail, or a report contradicted by what officers saw at the door may fall short.
2. Did the emergency end before the search? Once officers found the person and saw no one needed aid, further searching required a warrant or another exception, under both Case v. Montana and Seibert.
3. Did the search stay within the emergency? Opening drawers, containers, or rooms where no person could be is beyond “what is reasonably needed to deal with the emergency.”
4. Was the manner of entry reasonable? Justice Sotomayor’s concurrence supports arguments about forced entry, weapons drawn, and refusal to try de-escalation first.
5. Was this really community caretaking? In Caniglia v. Strom, 593 U.S. 194 (2021), the Court refused to let a general “community caretaking” rationale justify warrantless home entries. A check on someone’s general well-being, without a real emergency, does not qualify.

Our motion to suppress guide explains how these hearings work in Florida, and our post on when police can enter your home without a warrant in Florida covers the other exceptions, including consent, hot pursuit, and destruction of evidence.

What Charges Come Out of Welfare Checks in Tampa?

Welfare checks can lead to several kinds of charges: drug or weapons charges based on items officers saw inside, domestic violence charges based on what a family member reported, and charges against the person in crisis for how the encounter ended. In Case itself, the charge was assaulting an officer. In Florida, section 784.07, Florida Statutes, reclassifies an assault on a law enforcement officer “engaged in the performance of his or her official duties” from a second-degree to a first-degree misdemeanor, and a battery from a first-degree misdemeanor to a third-degree felony.

Because the suppression ruling and the trial defense often turn on the same facts about the entry, our attorneys prepare them together. Drug cases often turn on the scope of the search; our Tampa drug crimes attorney page explains how we defend them. Charges for battery on an officer are covered on our violent crimes defense page.

Why Does Police Training Matter in Welfare-Check Cases?

Police training matters because the officer’s account of what he knew and why he went in is the heart of the suppression hearing. As Rocky Brancato puts it: “As a former police academy instructor in criminal procedure and courtroom testimony, I taught officers the constitutional requirements they must follow, including when they can and cannot enter a home without a warrant. When I cross-examine an officer about a welfare check entry, I know what they were taught about the emergency aid exception, and I know when their actions deviate from proper constitutional standards.”

In Hillsborough County, suppression motions in felony cases are heard in circuit court in the 13th Judicial Circuit before trial. Our Hillsborough County criminal defense attorney page explains how those cases move, and our post on how Tampa police mistakes can lead to a dismissal shows what a successful challenge can mean for the case.

Frequently Asked Questions About Case v. Montana and Welfare Checks

Do Florida police need a warrant to do a welfare check inside my home?

No, not if they have an objectively reasonable basis to believe someone inside is seriously injured or in imminent danger. The Brancato Law Firm tests that basis against the 911 call, the dispatch notes, and the body camera footage; see our guide on warrantless home entry in Florida.

Can police search my whole house during a welfare check in Florida?

No. Case v. Montana says an emergency entry gives “no basis to search the premises beyond what is reasonably needed to deal with the emergency,” and Seibert makes any search after the emergency ends illegal. Our attorneys at The Brancato Law Firm use that limit to suppress evidence found in drawers, closets, and containers.

What if the welfare check was based on a false or mistaken report?

The entry can still be lawful if the report reasonably appeared true when officers acted, because Florida courts judge the officer’s belief at the time of entry. The Brancato Law Firm looks for facts at the scene that should have dispelled the report, since they can undercut the officers’ basis.

Does Case v. Montana apply if I told police I was fine?

Your statement is part of the totality of circumstances, but officers may weigh it against other facts such as a weapon or a third-party report. Our attorneys at The Brancato Law Firm rely on Justice Sotomayor’s concurrence, which cited cases where officers forced entry after the occupant said he was okay.

Can I be Baker Acted after a welfare check in Florida?

Yes, an officer may take a person who appears to meet the criteria into custody for an involuntary examination under section 394.463. The Brancato Law Firm represents clients whose crisis also led to criminal charges; see our criminal mental health defense page.

Is a welfare check the same as community caretaking?

No. After Caniglia v. Strom, a general community caretaking purpose does not justify entering a home; officers need a real emergency under the Brigham City standard. The Brancato Law Firm challenges entries where the facts show only a general concern for someone’s well-being.

For how this fits into the rest of a case, see our stage-by-stage guide to the Florida criminal case process.

Talk to a Tampa Defense Attorney About an Unlawful Home Entry

The best time to challenge a welfare-check entry is before the State finalizes its case, while body camera footage, 911 audio, and dispatch logs are still easy to obtain. Call The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, at (813) 727-7159, and our attorneys will review how the officers got in and what they did inside. You can call us at any hour. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read our guide for criminal defense in Spanish and Haitian Creole in Tampa.

For more about our defense strategies, visit our Tampa Criminal Mental Health Lawyer page.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

If you hit an age-check screen on an adult site, found that a site you used now blocks Florida, or got a call from a detective about something on your account, you probably want to know exactly where Florida draws the line. I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. I defended sex crimes cases in the Major Crimes Unit of the Hillsborough County Public Defender’s Office, and I am the former Chief Operations Officer of that office, where I oversaw a staff of over 100 attorneys. Our attorneys defend internet and child pornography investigations across Hillsborough, Pinellas, and Pasco Counties, often before any charge is filed.

Is porn legal in Florida in 2026?

Yes, watching, buying, or owning adult pornography is legal in Florida for anyone 18 or older. No Florida statute makes it a crime for an adult to view lawful adult content, and the 2024 age verification law does not change that. Three things decide whether sexual material crosses into criminal territory: who is depicted, who receives it, and whether it is legally obscene.

• Who is depicted. Any image of a person under 18 engaged in sexual conduct is child sexual abuse material under section 827.071, Florida Statutes, no matter who made it or why.
• Who receives it. Showing, giving, or sending sexual material to a minor is a felony.
• Whether it is obscene. Material that meets the legal test for obscenity can be prosecuted when it is sold, distributed, or shown, even between adults.

Consent also matters for adults. Publishing a sexually explicit image of a real person without that person’s consent can be a crime under Florida’s sexual cyberharassment law, covered below. Nearly every question our attorneys hear about Florida porn law turns on one of these three facts.

Is porn banned in Florida? What the age verification law requires

No, porn is not banned in Florida. HB 3, signed in March 2024 as chapter 2024-42, Laws of Florida, created section 501.1737, Florida Statutes, which took effect on January 1, 2025. It requires adult websites to verify a visitor’s age before showing sexual material. The law regulates the businesses that publish the content. It does not punish the adult who views it.

“Material harmful to minors” has a specific meaning under section 847.001, Florida Statutes: sexual content that predominantly appeals to a prurient interest, is patently offensive under adult community standards for what is suitable for minors, and lacks serious literary, artistic, political, or scientific value for minors. Mainstream adult video sites fall squarely within that definition, which is why they are the main target of the law, as our attorneys explain to clients who worry that their own browsing puts them at risk.

Why do some porn sites block Florida?

Some adult sites block Florida because their owners chose not to collect age verification from Florida users. Aylo, the company that owns Pornhub, cut off Florida access on January 1, 2025, the day the law took effect. Other large sites stayed open and added an age check. A blocked site is a business decision by the company, and it does not mean Florida made adult content illegal.

Florida has gone after sites that did neither. In August 2025, Attorney General James Uthmeier sued the operators of XVideos, XNXX, BangBros, and Girls Gone Wild for failing to verify ages, and in September 2025 his office filed two more complaints, including one against Aylo entities over sites such as SpiceVids and Nutaku. The State seeks injunctions and penalties of up to $50,000 per violation. We have not found a reported final judgment in those cases as of this update. None of these lawsuits targets individual viewers, and our attorneys give clients the same answer: the law’s penalties fall on the companies.

Is Florida’s age verification law constitutional after Free Speech Coalition v. Paxton?

Yes, as things stand, Florida’s law is in force and no court has blocked it. In Free Speech Coalition, Inc. v. Paxton, 606 U.S. 461 (2025), an adult-industry trade group challenged Texas’s nearly identical age verification law. On June 27, 2025, the U.S. Supreme Court upheld the Texas law by a 6-3 vote. The Court applied intermediate scrutiny, recognized that adults have a right to view sexual material that is obscene only for minors, and held that “adults have no First Amendment right to avoid age verification.”

The same trade group had sued Florida in federal court in December 2024. After Paxton, the plaintiffs voluntarily dismissed the Florida case in July 2025. The practical lesson for Florida residents is simple: age checks on adult sites are here to stay, and the legal fight has shifted to whether particular sites are complying. The Brancato Law Firm follows these rulings because the same First Amendment principles shape obscenity and harmful-to-minors prosecutions.

Is it illegal to use a VPN to watch porn in Florida?

No, using a VPN is legal in Florida, and no Florida law punishes an adult for using one to reach lawful adult content. Section 501.1737 does not mention VPNs, and its duties fall on the website. Florida has not passed any law that restricts VPN use.

Research shows many people respond to these laws by changing how they get to adult content. A study by David Lang and colleagues at NYU’s Center for Social Media, AI, and Politics, published in the Journal of Law & Empirical Analysis in 2026, found that in the three months after age verification laws took effect, Google searches for VPN services rose 23.6%, searches for the leading site that complied fell about 51%, and searches for the leading site that did not comply rose 48.1%.

A VPN changes your apparent location. It does not change the legality of the content. If the material involves a minor, a VPN is no defense, and it does not erase what is stored on your phone, laptop, or cloud account. In our experience, the evidence in these cases usually comes from the devices and accounts themselves, plus records from the companies that run them.

When does pornography become a crime in Florida?

Pornography becomes a crime in Florida when it involves a minor, when it is legally obscene and distributed, or when it is published without the depicted person’s consent. The table below lists the offenses our attorneys see most, with current classifications, and our Tampa internet crimes attorney page explains how we defend each charge. Felony maximums come from section 775.082, Florida Statutes: 5 years for a third-degree felony, 15 years for a second-degree felony, and 30 years for a first-degree felony.

What makes porn “obscene” under Florida law?

Material is obscene only if it meets all three parts of the test from Miller v. California, 413 U.S. 15 (1973), the U.S. Supreme Court case about a man prosecuted for mailing sexually explicit advertising brochures. Florida copies that test into section 847.001: the average person, applying contemporary community standards, would find the work as a whole appeals to the prurient interest; it depicts sexual conduct in a patently offensive way; and, taken as a whole, it lacks serious literary, artistic, political, or scientific value. Most mainstream adult content is not prosecuted as obscene.

Under section 847.011, Florida Statutes, selling, distributing, or showing obscene material is a first-degree misdemeanor, and the statute still lists simple knowing possession as a second-degree misdemeanor. Private possession has constitutional protection, though. In Stanley v. Georgia, 394 U.S. 557 (1969), police searching a Georgia man’s home for bookmaking evidence found obscene films, and the Supreme Court held that a state cannot make “mere private possession of obscene material” in the home a crime. That protection stops at material involving children, as explained below.

Is it a crime to show or send porn to someone under 18?

Yes, and it is a felony. Knowingly showing, giving, or transmitting obscene material to a minor is a third-degree felony under section 847.0133. Sending an image or data that is harmful to minors to a specific person you know or believe is a minor is also a third-degree felony under section 847.0138, and that statute reaches senders outside Florida. The “believed” language is why undercover officers posing as teenagers can bring this charge even when no real child was involved.

Both offenses are on the list in section 943.0435, Florida Statutes that requires sex offender registration, which generally lasts for life. Questions about lawful sexual activity between people of different ages are a separate topic, covered in our guide to the age of consent in Florida.

What are the penalties for child pornography in Florida after July 1, 2026?

Knowingly possessing, controlling, or intentionally viewing child sexual abuse material is now a second-degree felony, punishable by up to 15 years in prison for each image. Chapter 2026-20, Laws of Florida (HB 1159), raised the offense from a third-degree felony for conduct on or after July 1, 2026, and renamed “child pornography” as “child sexual abuse material” throughout the statutes. Under section 827.071(5), each image is a separate offense, and an image showing more than one child counts once for each child. “Intentionally view” requires proof of more than a single image.

Sentences can climb further. Under section 775.0847, Florida Statutes, the charge is reclassified one degree higher when a person possesses 10 or more images and at least one shows a child under 12, sadomasochistic abuse, sexual battery, bestiality, or any video of a child. Transmitting the material to another person now carries a 5-year mandatory minimum for adults under section 847.0137, and that statute’s definition of “transmit” covers sharing a cloud link or login. A conviction under section 827.071 requires sex offender registration. For how the reclassification math works on a scoresheet, see our post on child pornography enhancements in Florida.

The constitutional rule behind these laws is settled. In Osborne v. Ohio, 495 U.S. 103 (1990), an Ohio man was convicted for possessing nude photographs of a boy in his home, and the Supreme Court held that states may ban private possession and viewing of child pornography because of their compelling interest in protecting children, distinguishing Stanley.

Is AI-generated child pornography illegal in Florida?

Yes. Section 827.072, Florida Statutes makes it a third-degree felony to knowingly possess or intentionally view “generated child sexual abuse material,” meaning computer-created images of a fictitious person a reasonable person would regard as a real minor engaged in sexual conduct. Creating that material, or sending it to another person, is a second-degree felony. An image altered to show an identifiable real child, such as a face swapped onto another body, falls under section 827.071 and its higher penalties.

Is revenge porn illegal in Florida?

Yes. Under section 784.049, Florida Statutes, publishing or electronically sending a sexually explicit image of a person without consent, together with information that identifies the person, is sexual cyberharassment. A first offense is a first-degree misdemeanor, a second is a third-degree felony, and the person shown can sue for the greater of $10,000 or actual damages. Sending an image to a partner does not, by itself, give up that person’s expectation of privacy.

How do child pornography investigations start in Florida?

Most child pornography investigations in Florida start with a tip from a tech company, not a police officer. Platforms that detect suspected child sexual abuse material report it to the CyberTipline run by the National Center for Missing & Exploited Children (NCMEC). In 2025, the CyberTipline received 21.3 million reports nationwide, and 126,256 of them were tied to Florida, according to NCMEC’s 2025 CyberTipline reports by state. NCMEC sends those reports to Internet Crimes Against Children task forces and local agencies, which subpoena account records, identify the internet subscriber, and apply for search warrants.

The same conduct can also be charged in federal court, and the federal district that includes Tampa sentences more of these cases than any other. In fiscal year 2025, the Middle District of Florida, which includes Tampa, sentenced 70 people for federal child pornography offenses, more than any other federal district, according to the U.S. Sentencing Commission’s fiscal year 2025 Quick Facts. The same report found that 74% of people sentenced for federal child pornography offenses that year had little or no prior criminal history.

That pattern matches what we see: many of the people who call us have never been arrested. The account holder is the first person investigators look at, even when someone else in the home did the searching. A teenager who searches for explicit content involving “kids my age” can trigger the same automated report as an adult, and the subpoenas and warrants usually point to the parent who pays for the internet service. Parental controls such as Apple Screen Time and Google Family Link can help prevent that situation, and activity logs from those tools can later help show who was using a device.

Can you be charged for images you did not know were on your device?

The State must prove you knew the material was there, and that element is often where these cases are won. In Strouse v. State, 932 So. 2d 326 (Fla. 4th DCA 2006), a man was charged with seven counts after his girlfriend found images on his laptop. Six counts were dismissed because those images were old temporary internet files or composite images from website banners. The conviction on the remaining count was affirmed because his girlfriend had seen that image appear as a new icon on his screen, which showed it was more than a file the computer stored automatically. A 2008 Florida Law Review note examined the same problem: whether a person should be convicted for files a browser cache saved on its own. Knowledge is tested twice, first in a motion to dismiss or a forensic challenge before trial and again in front of the jury.

What should you do if police contact you about images online?

Do not talk to the detective, do not consent to a device search, and do not delete anything. Call a lawyer before you respond. Deleting files after you know about an investigation can lead to a separate tampering charge, and forensic examiners can often recover deleted data anyway. A detective’s request to “clear this up” is usually an attempt to get the admission that proves knowledge.

1. Day 1: Decline the interview politely and ask for the detective’s name, agency, and case number.
2. Day 1: Do not unlock, wipe, reset, or hand over phones, computers, or cloud passwords without a warrant.
3. Days 1 to 3: Have a lawyer contact the agency, invoke your rights, and route all communication through counsel.
4. First weeks: Build the defense and mitigation record before the State decides what to file.

The weeks before an arrest are the best chance to shape the outcome, which is why our firm offers representation before charges are filed. Our attorneys review the actual files in person at the law enforcement agency rather than relying on a detective’s description, and we bring in forensic experts to test how each file got onto the device. If Google or another provider has notified you that police requested your account records, our guide on what to do after a Google account legal request walks through the first steps. When an investigation involves an in-person sex offense allegation as well, see our Tampa sex crimes lawyer page.

What results has our firm obtained in these cases?

Our attorneys have resolved internet and child pornography investigations without a registrable conviction, and in some cases without any charge. These results are published on our case results page.

Past results do not guarantee future outcomes.

Frequently asked questions about Florida porn laws

Is it illegal for a minor to watch porn in Florida?

Florida’s pornography laws target the websites and people who provide sexual material to minors, and no statute makes a minor’s viewing alone a crime. When teenagers trade nude images with each other, though, Florida’s sexting statute applies, starting with a noncriminal citation. The Brancato Law Firm represents families when a school or detective gets involved and works to keep a teenager’s mistake in juvenile court or out of court entirely.

Can I get in trouble for using a VPN to watch porn in Florida?

No, an adult using a VPN to reach lawful adult content does not violate Florida law, because section 501.1737 regulates websites, not viewers. Our attorneys at The Brancato Law Firm remind clients that a VPN offers no protection when the content involves a minor, since the evidence comes from the device and the accounts.

Is OnlyFans legal in Florida?

Yes, subscribing to or selling adult content on platforms like OnlyFans is legal in Florida when everyone involved is 18 or older and consented. The Brancato Law Firm advises adult creators that the legal risks come from content involving anyone under 18, posting another person’s images without consent, and material that meets the obscenity test.

What happens if my child searched for illegal content on my internet account?

Investigators usually start with the account holder, so a parent can become the first suspect when a child’s search triggers a report. The Brancato Law Firm steps in at that stage through pre-file advocacy, contacting the detective and helping show who actually used the device.

Is sending a nude photo to a 17-year-old a crime in Florida?

Yes, an adult who sends sexual images to someone known or believed to be a minor commits a third-degree felony under section 847.0138, and a conviction requires sex offender registration. The Brancato Law Firm defends these charges, including cases that come from undercover chats, as explained in our post on solicitation of a child using a computer.

Can child pornography charges be dropped in Florida?

Yes, prosecutors can drop or reduce these charges when the evidence of knowledge, age, or identity is weak or when the defense presents strong mitigation. In a 2026 case, The Brancato Law Firm obtained a reduction from four child pornography felonies to obscenity counts that do not require registration; learn more from our internet crimes defense team.

Do you have to register as a sex offender for possessing child pornography in Florida?

Yes, a conviction under section 827.071 requires sex offender registration under section 943.0435, generally for life, with a petition for removal possible only after 25 years in limited cases. The Brancato Law Firm looks for lawful resolutions that avoid a registrable offense, such as the obscenity reduction described above. Our guide to Florida child sexual abuse material charges covers the defenses in more detail.

Can police search my phone if they say they found porn on my account?

Police generally need a search warrant or your consent to search your phone, and you can refuse consent. The Brancato Law Firm reviews every warrant in these cases for problems with the probable cause, the scope of the search, and the timing of the forensic exam.

Talk to a lawyer before you talk to a detective

Your next step, if a detective has called, knocked, or sent a provider notice, is to say nothing about the images and call us first. The Brancato Law Firm, P.A., founded by Tampa Criminal Defense Attorney Rocky Brancato, will contact the agency for you, protect your devices and accounts from a consent search, and start building the defense before the State decides what to charge. Call (813) 727-7159 for a free, confidential consultation. You can call us at any hour, and our office is two blocks from the courthouse. Our firm has Spanish-speaking staff, and attorney Jean-Luc Adrien speaks Spanish, Haitian Creole, and French. Read about our Spanish and Haitian Creole criminal defense services.

For more about our defense strategies, visit our Tampa Internet Crimes Attorney page.

The Brancato Law Firm, P.A.

620 E. Twiggs Street, Suite 205, Tampa, FL 33602

(813) 727-7159

Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. I have served as a police academy legal instructor teaching officers the constitutional limits of search, seizure, and arrest, and I served as Chief Operating Officer of the Hillsborough County Public Defender’s Office. Today our attorneys defend gun and drug charges across Tampa Bay, and this question — marijuana and guns — now sits at the center of one of the fastest-moving areas in criminal law.

What Does Federal Law Say About Marijuana Users and Guns?

Federal law makes it a crime for any person “who is an unlawful user of or addicted to any controlled substance” to possess a firearm or ammunition. That ban lives in 18 U.S.C. § 922(g)(3), and because marijuana remains a controlled substance under federal law, it has always applied to marijuana users — including Florida’s hundreds of thousands of registered medical marijuana patients. A state card has never been a defense to the federal statute, because Florida’s medical marijuana program does not change what federal law says.

The federal ban shows up in a second place that trips up ordinary gun buyers: ATF Form 4473, the questionnaire every purchaser completes at a licensed dealer. The form asks directly whether you are an unlawful user of marijuana or any other controlled substance, and it warns that marijuana remains federally unlawful regardless of state medical programs. Answering falsely is a separate federal felony. Our attorneys have seen careful, law-abiding people put themselves in federal jeopardy with one checkbox — which is why the Supreme Court’s 2026 decision matters so much, and why it must be read carefully rather than treated as a green light.

What Did the Supreme Court Decide in United States v. Hemani?

In United States v. Hemani, No. 24-1234 (U.S. June 18, 2026), the U.S. Supreme Court held that the government’s prosecution of a regular marijuana user under § 922(g)(3) violated the Second Amendment — the first time the Court has struck down the application of a federal gun ban to drug users. Ali Hemani was prosecuted for having a gun in his home while being a regular marijuana user; the government’s theory was that regular use of a controlled substance, by itself, was enough to disarm him. It did not claim he was addicted, that he was high when found with the gun, or that he posed any particular danger.

Justice Gorsuch’s majority opinion, affirming the Fifth Circuit 7-2, rejected that theory under the historical-tradition test. The government leaned on founding-era “habitual drunkard” laws, but the Court found those laws targeted people whose drinking left them “practically incapacitated and incapable of managing their affairs” — not everyone who drank regularly. The Court also stressed how the modern statute operates: it “automatically divests an individual of his constitutional right to bear arms the moment he becomes an unlawful user . . . all without any pre-deprivation process,” while the historical laws required some proceeding — a conviction, a guardianship, a hearing — before anyone lost liberty. And the Court pointed out that the government’s own conduct undercuts the claim that all marijuana users are categorically dangerous: federal prosecutors have been directed to curtail enforcement against marijuana users, most states have legalized some use, and the government itself recently moved certain marijuana products down the federal schedules.

For Florida gun owners who hold medical marijuana cards, the practical takeaway is this: after Hemani, a federal prosecution built on nothing more than the fact that you regularly use marijuana is unconstitutional. That is a real shield. But it is a shield with defined edges, described next.

What Did Hemani Leave Undecided?

Hemani was an as-applied ruling, not a repeal — § 922(g)(3) is still on the books, and the Court expressly reserved several theories the government may still pursue. Anyone mixing marijuana and firearms in Florida should understand exactly where the line now sits.

That last row deserves emphasis. Nothing in Hemani changed the purchase paperwork. Until ATF revises Form 4473, a medical marijuana patient who answers “no” to the unlawful-user question is still committing a federal crime, whatever the Second Amendment now says about possession prosecutions. This is exactly the kind of trap where getting legal advice before you act is worth far more than defending a charge afterward.

Does a Florida Medical Marijuana Card Take Away Your Gun Rights?

No — holding a Florida medical marijuana card does not, by itself, disqualify you from owning or possessing a firearm under Florida law. Florida’s medical marijuana statute, Fla. Stat. § 381.986, created a physician-certification system with a patient registry, and nothing in Florida’s gun statutes makes registered patients prohibited possessors.

Florida’s concealed-carry licensing statute, Fla. Stat. § 790.06, does contain drug-related disqualifiers that patients should know about. The Department of Agriculture must deny a license to an applicant who “chronically and habitually uses alcoholic beverages or other substances to the extent that his or her normal faculties are impaired,” and to anyone found guilty of a chapter 893 drug crime within the three years before applying. A conviction for a controlled-substance offense also triggers revocation of an existing license. So while the card itself is not a disqualifier, a marijuana-related conviction — even a misdemeanor — can cost you your carry license for years.

Where Is Medical Marijuana Use Still Illegal Even With a Card?

A Florida medical marijuana card authorizes “medical use” — and the statute defines that term to exclude specific places, so using marijuana in the wrong location remains a crime even for a fully registered patient. Under § 381.986, “medical use” does not include using or administering marijuana on public transportation, in any public place, in an enclosed indoor workplace, on school grounds, or — critically for Tampa Bay’s boaters and drivers — “in a school bus, a vehicle, an aircraft, or a motorboat,” with a narrow exception for low-THC cannabis not in a form for smoking. A qualified patient who uses marijuana in plain view of the public or in a vehicle or boat commits a first-degree misdemeanor.

The Sixth District Court of Appeal enforced exactly this limit in Tanaka v. State, No. 6D2024-1581 (Fla. 6th DCA June 19, 2026), a Collier County case where the court affirmed a conviction by quoting the statute’s rule that “medical use” does not cover marijuana in a vehicle, aircraft, or motorboat. The lesson for the hundreds of thousands of Floridians with cards: your protection travels with the statute’s definitions, not with the card in your wallet. Smoking in your car — parked or moving — is outside the program, and once an officer smells it, you may face both the misdemeanor and a vehicle search. Our attorneys have litigated where the odor-of-cannabis doctrine now stands in the Tampa Bay area; see our analysis of Florida’s Second DCA limiting the plain-smell doctrine.

Can 18-to-20-Year-Olds Carry a Concealed Gun in Florida Now?

As of mid-2026, Florida’s ban on concealed-carry licenses for adults under 21 has been declared facially unconstitutional by one of Florida’s appellate courts — a major shift, though not yet a statewide settled rule. In Eubanks v. State, No. 4D2025-1698 (Fla. 4th DCA June 17, 2026), a Broward County prosecution for carrying a concealed firearm, the Fourth District held that § 790.06(2)(b) — which requires concealed-carry applicants to be 21 — “is facially unconstitutional as it relates to 18- to 20-year-olds.” The court reasoned that 18-to-20-year-olds are part of “the people” the Second Amendment protects, that the State produced no historical tradition of categorically disarming young adults, and — quoting the U.S. Supreme Court’s Rahimi decision — that a group cannot be “disarmed simply because he is not ‘responsible.’” The court reversed the young man’s conviction outright.

Two cautions before anyone under 21 straps on a holster. First, Eubanks is a Fourth District decision; Tampa, Hillsborough, Pinellas, and Pasco Counties sit in the Second District, which has not yet spoken, and the State may seek further review in the Florida Supreme Court. Second, the decision addressed concealed carry — it did not touch Florida’s open-carry ban or the separate federal rules for handgun purchases by under-21 buyers. Anyone in that age group facing a carry charge should treat Eubanks as a powerful defense to raise, not a settled right to rely on. For the broader landscape — permitless carry under Fla. Stat. § 790.01, where guns are still prohibited, and how gun charges are penalized — see our guide to gun crime laws in Florida.

How Do These Decisions Change a Florida Gun Charge Defense?

They add constitutional attacks to a defense toolbox that already starts with the Fourth Amendment. When our attorneys defend a Tampa Bay gun charge involving marijuana, the analysis now runs on three tracks at once.

1. Was the stop and search lawful? Most marijuana-and-gun cases begin with a traffic stop, a pat-down, or a search justified by the smell of cannabis. If the stop was unlawfully prolonged or the frisk exceeded its limits, the gun itself can be suppressed — see our breakdown of stop and frisk law in Florida.
2. Is the charge constitutional after Hemani and Eubanks? A federal § 922(g)(3) charge premised on use alone is now unconstitutional as applied. A state concealed-carry charge against an otherwise law-abiding 18-to-20-year-old is squarely challenged by Eubanks. These arguments are raised by motion — and where a district conflict exists, preserving the issue protects your appeal.
3. Does the statute even fit the facts? Was the marijuana “medical use” within § 381.986? Was the firearm actually “possessed”? Was a license exception satisfied? The State must prove every element, and pre-file advocacy — engaging the State Attorney’s Office before charges are formalized — can resolve borderline cases before they ever reach a courtroom.

What Should You Do If You Are Arrested on a Marijuana-Related Gun Charge?

Move fast, and say nothing about your marijuana use to anyone but your lawyer. Statements about how often you use — the exact fact that decides whether the government can build a lawful case after Hemani — are routinely volunteered in the first police interview, and they are admissible. In Hillsborough County, a felony gun arrest means booking at Orient Road Jail, first appearance within 24 hours, and formal charging decisions by the State Attorney’s Office in the weeks that follow. That charging window is where an early defense presentation can change everything: our attorneys use it to put suppression problems, Hemani and Eubanks issues, and medical-marijuana documentation in front of the prosecutor before the filing decision is made. If you were just arrested, our step-by-step guide to what to do after being arrested in Tampa walks through the first 72 hours.

For more about our defense strategies, visit our Hillsborough County criminal defense page.

For how The Brancato Law Firm, P.A. defends these cases, see our Tampa drug crimes defense practice and our Tampa gun crimes defense practice.

Frequently Asked Questions

Can I buy a gun in Florida if I have a medical marijuana card?

Florida law does not prohibit the purchase, but the federal purchase form still asks whether you are an unlawful user of marijuana, and marijuana remains federally unlawful even for state medical patients. Answering falsely on ATF Form 4473 is a federal felony that Hemani did not eliminate. Our attorneys advise cardholders on lawful paths before purchase, because this is far easier to get right in advance than to defend afterward.

Did the Supreme Court legalize gun ownership for all drug users?

No. United States v. Hemani, No. 24-1234 (U.S. June 18, 2026), held only that prosecuting a person for regular marijuana use alone violates the Second Amendment. The Court expressly left open prosecutions of people who are addicted, armed while presently intoxicated, or shown by individualized proof to be dangerous — and it did not touch the felon-in-possession ban.

Can I keep a gun in my car along with my medical marijuana?

Carrying a firearm in your vehicle can be lawful under Florida’s permitless-carry framework, but using marijuana in a vehicle is never “medical use” under Fla. Stat. § 381.986 — it is a first-degree misdemeanor even for cardholders. Combining the two also invites a search and a charging decision that treats you as an unlawful user. Keep the marijuana sealed, in its original packaging, and never use it in the car or on a boat.

Can an 18-year-old legally carry a concealed gun in Florida in 2026?

The Fourth District held in Eubanks v. State that the 21-and-over rule in § 790.06(2)(b) is facially unconstitutional, but that ruling comes from South Florida’s appellate district and the issue is not finally settled statewide. In Tampa Bay — the Second District — prosecutors may still file the charge, and the defense must raise Eubanks by motion. The Brancato Law Firm, P.A. litigates these constitutional challenges and preserves them for appeal.

Will a marijuana conviction cost me my concealed weapons license?

Yes — a finding of guilt for a chapter 893 drug crime requires revocation of a Florida concealed-carry license, and it bars a new license for three years under Fla. Stat. § 790.06. That collateral consequence is one more reason to fight a “minor” possession charge rather than plead it out quickly. We routinely defend possession cases with the license consequences as a central goal.

Does Florida report medical marijuana patients to the federal government?

Florida’s medical marijuana use registry is a state system, and Florida law treats patient records as confidential; the registry is not a public list handed to federal authorities. But dispensary purchases, statements to police, and social media can all establish “unlawful user” status in a federal case. If you hold a card and own firearms, The Brancato Law Firm, P.A. can walk you through how the two programs actually interact.

Marijuana-and-gun law is moving faster right now than at any point in decades — Hemani and Eubanks both landed within a single week of June 2026, and the next round of decisions will decide how far they reach in Tampa Bay. If you are facing a gun or marijuana charge, or you hold a medical card and want to keep your gun rights intact, call the attorneys of The Brancato Law Firm, P.A. — founded by Tampa Criminal Defense Attorney Rocky Brancato — at (813) 727-7159 today. Constitutional defenses are strongest when they are raised before the State’s filing decision, not after.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.

I’m Rocky Brancato, founder of The Brancato Law Firm, P.A., a Tampa criminal defense firm. I tried more than 150 jury trials to verdict and led the Major Crimes Unit at the Hillsborough County Public Defender’s Office, where jailhouse informants surfaced in the most serious cases we handled — homicides, sex crimes, and anything with a reward attached. Our attorneys treat every incarcerated witness as a case within the case, because the incentives to lie are enormous and the law provides ways to prove it.

Why Is Jailhouse Informant Testimony So Unreliable?

Because the witness has something to gain and little to lose. A jailhouse informant — an inmate who claims another inmate confessed to him — typically hopes for a reduced sentence, dropped charges, returned property, or simple goodwill from the prosecutors who control his fate. The testimony is easy to manufacture (crime details circulate in jails through news coverage and paperwork), difficult to disprove, and delivered by someone with practice persuading people. Wrongful-conviction litigation across the country has repeatedly traced convictions to informants who later admitted inventing confessions.

Florida law gives the defense trial tools to expose all of it. Under Fla. Stat. § 90.608, any party may attack a witness’s credibility by showing bias — which includes every benefit the informant hopes to receive — along with inconsistent statements and contradicting evidence, and under Fla. Stat. § 90.610, the informant’s prior convictions come in to impeach him. The State must also disclose deals and benefits, and when it hides them — or lets the informant lie about them — the Constitution takes over.

Exposing the deal carries a risk the defense has to plan for. In Nixon v. State, No. 1D2024-2412 (Fla. 1st DCA July 29, 2026), a Leon County felony murder case, the defense got a cooperating witness to admit he faced life, had no promises, and hoped for a better deal by helping convict the defendant. The First District held that this cross-examination implied the witness made up his story to earn a deal, which opened the door for the State to call a detective to repeat the witness’s earlier, consistent account under Fla. Stat. § 90.801(2)(b). The court added that an arrest alone does not prove the motive to lie already existed when the earlier statement was made. Before our attorneys cross-examine an informant about a deal, we pin down when every prior statement was made and what the witness stood to gain at that moment, so the jury does not hear the State’s story twice.

What Is a Giglio Violation?

A Giglio violation occurs when the State presents or fails to correct testimony it knows is false, and the lie matters. The doctrine comes from Giglio v. United States, 405 U.S. 150 (1972), where the government’s key witness falsely denied being promised immunity. As the Florida Supreme Court restated the test this summer, the defense must prove that (1) the State presented or failed to correct false testimony, (2) the State knew the testimony was false, and (3) the false evidence was material. The classic jailhouse-informant Giglio claim involves exactly what its namesake case involved: the snitch tells the jury he was promised nothing, and the prosecutor — who knows better — stays silent.

What Did the U.S. Supreme Court Decide in Whitton v. Dixon?

In Whitton v. Dixon, No. 25-580 (U.S. June 1, 2026), the Supreme Court revived a Florida prisoner’s jailhouse-informant challenge — and tightened the rules courts must follow when they decide whether a snitch’s lie “mattered.” The informant, Jake Ozio, was a high-school student jailed after a spring-break arrest who testified that he overheard Whitton confess to a murder. Ozio also told the jury he had no prior criminal history. That was false — his juvenile records, which the State possessed at trial, showed prior charges including assault and burglary — and the jury never learned who was actually testifying against Whitton.

The federal appeals court had brushed the lie aside as immaterial, partly by pointing to DNA evidence developed after trial. The Supreme Court vacated that decision: materiality asks whether the false testimony influenced the jury’s verdict, and evidence the jury never saw — evidence that did not even exist at trial — “sheds no light” on that question. The case went back down to be decided on the record the jury actually heard. For defendants, Whitton is a meaningful win: courts cannot launder a Giglio violation through hindsight, propping up a tainted verdict with material the jurors never considered.

How Do Florida Courts Handle Informant Lies About Plea Deals?

Florida’s appellate courts are actively policing this — including a decision just days ago. In Mensah v. State, No. 6D2023-3105 (Fla. 6th DCA Aug. 28, 2026), a defendant alleged in a postconviction motion that the State’s key witness was promised a lenient plea deal and then testified, falsely, that he had been promised nothing — a textbook Giglio allegation. The trial court denied the claim without a hearing. The Sixth District reversed: unless the record conclusively refutes the allegation, the defendant is entitled to an evidentiary hearing. The court sent the case back for the State to either produce record proof that no deal existed or face a hearing where the deal question gets litigated.

Mensah matters for a practical reason: defendants rarely have documents proving a secret deal when they file. The decision confirms that at the pleading stage, the burden runs the other way — the record must disprove the claim, not the defendant prove it — which keeps the courthouse door open long enough for discovery and testimony to do their work.

Why Did the Florida Supreme Court Reject the Informant Claims in Rhodes?

Because the informants’ new stories were not believed — and Rhodes is the honest counterweight every defendant should understand. In Rhodes v. State, No. SC2024-1099 (Fla. July 2, 2026), a death-row prisoner presented recantations from two jailhouse witnesses who now claimed law enforcement coached their testimony and rewarded them with benefits — including, one claimed, the return of seized property such as dozens of ounces of gold and silver. The postconviction court heard the witnesses, found them not credible, and the Florida Supreme Court affirmed, repeating its long-standing view that recantation testimony is “as a general matter, ‘exceedingly unreliable’” — especially where the witnesses could not explain waiting nearly forty years to come forward.

Rhodes also answered a question our clients ask constantly: can police plant an informant near me at the jail? The Sixth Amendment bars the State from deliberately using an informant to draw statements out of you — but only for offenses on which your right to counsel has attached, because that right is offense-specific. An inmate awaiting trial on one charge can lawfully be worked by an informant about a different, uncharged crime. That is exactly why the safest rule in custody is absolute: discuss your case with no one but your lawyer — not cellmates, not friends on recorded jail phones, no one.

What Did 2026’s Informant Decisions Change?

Three courts, three months, three lessons — together they map where informant challenges now stand.

What Should You Do If an Informant Is Part of Your Case?

Demand everything, immediately — the benefits paper trail is where these witnesses fall apart. When a jailhouse informant appears on the State’s witness list in a Tampa Bay case, our attorneys move for disclosure of every promise, understanding, or benefit (formal or informal), the informant’s complete criminal history including juvenile records, his other cases and pending charges, every prior occasion he has testified or offered information for the State, and the jail records showing how he came to be housed near our client. We depose the informant — Florida allows depositions in felony cases — and lock him into a story before trial. And if the case is already over, Whitton and Mensah show the fight is not: a lie about a record or a deal, known to the State, supports a Rule 3.850 motion, and the standards applied to it were just clarified in the defense’s favor. Timing matters at both ends — disclosure fights are won before trial, and postconviction deadlines are unforgiving — so if a snitch built or is building the case against you or a family member, our guide to what to do after being arrested in Tampa covers the first hours, and this issue is one to raise with counsel in the first meeting. Informant testimony is most common in the most serious cases — see our complete guide to homicide charges in Florida for how these trials are actually defended.

For more about our defense strategies, visit our Hillsborough County criminal defense page.

For how this fits into the rest of a case, see our overview of how a Florida criminal case moves from investigation to appeal.

Frequently Asked Questions

Do jailhouse informants get deals for testifying?

Frequently, yes — reduced charges, sentencing consideration, or other benefits — and the State is constitutionally required to disclose them. Some deals are informal (“we’ll make your cooperation known”), which are still benefits the jury is entitled to hear about. Our attorneys pursue the paper trail behind every incarcerated witness because the undisclosed benefit is often the case’s breaking point.

What happens if a prosecution witness lied at my trial?

If the State knew the testimony was false and there is a reasonable likelihood the lie affected the verdict, that is a Giglio violation and grounds for a new trial. In Whitton v. Dixon (U.S. 2026), the Supreme Court held courts must judge that question on the evidence the jury actually heard. These claims are raised on appeal or by postconviction motion, and The Brancato Law Firm, P.A. handles both.

What is the difference between a Brady violation and a Giglio violation?

Brady is about suppression: the State hid favorable evidence from the defense. Giglio is about false testimony: the State presented or failed to correct testimony it knew was false. A hidden deal with an informant can violate both at once — the deal was concealed (Brady) and the informant denied it on the stand (Giglio).

Can police put an informant in my cell to get me to talk?

Once you are charged and your right to counsel has attached, the State cannot deliberately use an informant to elicit statements about that offense. But as Rhodes v. State (Fla. 2026) confirms, the right is offense-specific — an informant can lawfully gather statements about uncharged crimes. Never discuss your case with anyone in custody; assume every cellmate conversation and jail call is evidence.

Can an old conviction be overturned because an informant recanted?

It is possible but hard: Florida courts treat recantations as “exceedingly unreliable,” and a decades-late change of story faces heavy skepticism, as Rhodes shows. The stronger paths pair the recantation with objective proof — records showing undisclosed benefits, or documents proving the trial testimony false. The Brancato Law Firm, P.A. evaluates postconviction informant claims with exactly that evidence-first approach.

Does the jury get told that a witness is a jailhouse informant?

The jury hears it if the defense puts it in front of them — through cross-examination on bias under Fla. Stat. § 90.608, prior convictions under § 90.610, and the informant’s expectations of benefit. That is why the pretrial disclosure fight matters: you cannot cross-examine on a deal you never learned about.

The summer of 2026 was the most active season for informant law in years — Whitton in June, Rhodes in July, Mensah in August — and each one changes how these witnesses are fought in Florida courtrooms. If a jailhouse informant is part of the case against you or someone you love, call the attorneys of The Brancato Law Firm, P.A. — founded by Tampa Criminal Defense Attorney Rocky Brancato — at (813) 727-7159 now, before the disclosure deadlines pass and the informant’s story hardens in front of a jury.

The Brancato Law Firm, P.A.
620 E. Twiggs Street, Suite 205, Tampa, FL 33602
(813) 727-7159
Serving Hillsborough, Pinellas, and Pasco Counties

The Brancato Law Firm, P.A. is a Tampa-based criminal defense practice. We are not affiliated with any other Brancato-named law firms.