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Tampa, FL - Criminal Defense lawyer represented petitioners with challenging the trial court's order revoking their bonds.

In these consolidated petitions for writ of habeas corpus,
petitioners Melissa Cossio and Gabriel Cossio—a married couple—
challenge the trial court's order revoking their bonds and denying
their respective motions to strike a pretrial release condition that
prohibited them from having contact with each other. Because the
trial court abused its discretion in revoking the bond based on a
violation of a special condition of pretrial release that permitted
almost no contact between the married couple, we granted their
petitions in a prior order. This opinion explains our decision. Our
prior order also stayed enforcement of the no-contact provision.
The stay is hereby lifted, and the no-contact provision is quashed to
the extent that it is inconsistent with this opinion.
The petitioners have been married for thirteen years and have
two children together. They are also codefendants, each charged
with several counts of trafficking and possession of illegal
substances. In addition, Mr. Cossio was charged with one count of
fleeing to elude law enforcement at high speed.
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The court granted the Cossios' respective motions for pretrial
release. But as one of their conditions, the court ordered them to
have no contact with any codefendants, including each other. At
the request of the parties, the court subsequently modified the
condition to allow for third-party contact so that the petitioners
could address childcare matters.
While Mr. Cossio was in jail, he called his son. About two
minutes into the call, Mrs. Cossio entered the conversation. They
spoke for about ten minutes about securing funds and collateral for
Mr. Cossio's bond. A few days later, Mr. Cossio posted bond and
was released.
Based on the recorded phone conversation, the State filed a
motion to revoke the petitioners' respective bonds. Both petitioners
filed motions to strike the no-contact condition as void ab initio.
The trial court denied the motions, noting that the "no contact order
was clear, unambiguous, and reasonable in consideration of the
nature and gravity of the charges."
"A trial court's determination of the amount for bail or bond
and conditions of release is discretionary and subject to reversal
only if that discretion is abused." Norton-Nugin v. State, 179 So. 3d
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557, 559 (Fla. 2d DCA 2015). However, that discretion is not
unlimited, particularly with respect to "conditions of release that
result in 'sweeping restrictions on important constitutional rights.' "
See United States v. Martinez, Nos. 4:21-cr-00107-SMR-HCA-1 & 2,
2021 WL 4169789 (S.D. Iowa Sept. 13, 2021) (quoting United States
v. Hobbs, 845 F.3d 365, 368 (8th Cir. 2016)).
Because sweeping no-contact orders prohibiting defendants
from making contact with their spouses implicate the fundamental
right of marriage, courts have consistently been reluctant to uphold
such orders and, absent extraordinary circumstances, generally
draw the line at restrictions that go beyond the scope of the pending
cases. See, e.g., Hobbs, 845 F.3d at 367 (vacating condition of
postsentencing supervised release prohibiting any contact with
codefendant spouse as overly broad); State v. Guill, 248 P.3d 826,
827-28 (Mont. 2011) (upholding sentencing restriction prohibiting
all contact with codefendant husband in light of his extraordinary
psychological manipulation in "factually one of the more bizarre
cases to reach this Court"); State v. Rieger, 839 N.W.2d 282, 288-89
(Neb. 2013) (reversing condition of probation prohibiting all contact
with spouse for entry of less restrictive condition); State v. Martin,
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580 P.2d 536, 539-40 (Or. 1978) (en banc) (narrowing condition of
probation prohibiting defendant from associating with anyone ever
convicted of a crime to exclude her husband, noting the trial court's
findings "might have been sufficient to support a condition of
probation that defendant not associate with her former partner in
crime, had that person not been her spouse"); State v. Muldowney,
No. 2013-138, 2013 WL 2631206, at *2 (Vt. Apr. 18, 2013)
(upholding pretrial order prohibiting defendant from discussing
pending charges and alleged victims with his wife, a witness in the
case); State v. Warren, 195 P.3d 940, 948 (Wash. 2008) (en banc)
(upholding order prohibiting contact with wife where condition was
necessary to protect her and the child victims from defendant).
The case that we find most analogous to ours is Martinez,
2021 WL 4169789, which involved a no-contact provision imposed
on married codefendants in the context of pretrial release. Mr. and
Mrs. Martinez had been married at least thirteen years when they
were indicted on drug-related charges. Id. at *1-*2. The parties
were granted pretrial release with the condition of avoiding all
contact with codefendants. Id. at *1. Mr. Martinez argued that
their constitutional interest in marriage "outweigh[ed] the
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government's pretrial interest in preventing contact between codefendants." Id.
The court began its analysis by noting that "[c]ourts
sometimes impose no-contact orders between married codefendants as conditions of pretrial release." Id. The court pointed
out that the no-contact order would last only a few months, as
compared to posttrial no-contact orders, which might span years.
Id. at *2. However, the court also agreed that conditions of release
should not broadly restrict important constitutional rights and
"[w]here a more narrowly-tailored condition is available, it must be
used." Id. (citing Hobbs, 845 F.3d at 369).
Ultimately, the Martinez court concluded that "[t]he
government's interests are not so compelling . . . as to justify
prohibiting communication altogether." Id. The court therefore
granted the couple's motion to modify the conditions of pretrial
release "to permit communication with each other about matters
unrelated to the criminal case, subject to the condition that, upon
request . . . , they must provide records of any electronic
communications with each other." Id. at *3. The court held that it
was justifiable to restrict the parties from residing together or
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discussing matters related to their criminal case. Id. at *2; see also
United States v. Vandenberg, 761 F. App'x 655, 657 (8th Cir. 2019)
(upholding the limited restriction prohibiting defendant from living
with his parents but allowing him to have contact with them). This
narrowly tailored alternative to the original no-contact order would
still serve the government's interests of "preventing collusion
and/or witness tampering, protecting the public from further
criminal offenses, and deterring both defendants." Martinez, 2021
WL 4169789 at *2.
Here, too, the State's interests are not so compelling to justify
the substantial prohibition fashioned by the trial court. Even as
amended to allow third-party contact regarding childcare matters,
the restriction precludes communication regarding a wide variety of
matters about which married couples must communicate on a
regular—if not daily—basis but which have nothing to do with the
case or the relevant State's interests. Such a sweeping restriction
infringes on the Cossios' fundamental marital rights. However, as
the Martinez court recognized, some restrictions even on such
fundamental rights may be justified so long as they are narrowly
tailored to the relevant governmental interests—in this case, to
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assure the presence of the accused at trial and to protect the
community from the risk of physical harm to persons. See §
907.041(4)(c)(7), Fla. Stat. (2020).

Outcome: For these reasons, we granted the petitions and vacated the
revocation of the Cossios' pretrial release. The no-contact provision
is quashed to the extent that it is inconsistent with this opinion.

Petitions granted.

Plaintiff's Experts:

Defendant's Experts:

Comments: