The Black Swan Theory: Why “I Have Permission” Is Not Enough in Court

By: John Guidry

At times, I admit that this website plunges into the ultra-boring philosophical underpinnings of “knowledge.” The word gets tossed around frequently, yet we often don’t “know” half of what we think we “know.” This little rabbit hole is especially fragile when six jurors are hanging on a witness’s every word.

The Black Swan Paradox: For centuries, scientists claimed, “All swans are white.” Every time they saw a white swan, their knowledge was “confirmed.” That is, until black swans were discovered in Australia.

• The Lesson: One single fact can disprove a lifetime of assumptions.
• The Courtroom: Our legal system uses the Rules of Evidence (specifically Hearsay) to filter out unreliable “assumptions” and keep the evidence pure.

Watch carefully for this problem in the case of J.G. v. State, 114 So. 3d 1078 (Fla. 2d DCA 2013).

Were you arrested for trespassing because the officer claimed he had “authority” from the owner?

If he can’t prove it, the case should be dismissed. Call John today at (407) 423-1117.

The Case: J.G. v. State (The Ghost Contract)

The Facts: “J.G.” (a juvenile) was hanging out at a housing project around midnight.

• The Check: An officer ran J.G.’s name and saw that he had been “trespassed” from the property six months ago.
• The Arrest: Since J.G. couldn’t prove he was invited back, the officer arrested him for Trespass After Warning.

The Trial Testimony: At trial, the prosecutor called the arresting officer.

• The Question: “Do you have authority to arrest people on this private property?”
• The Answer: “Yes. The housing project has a written agreement on file with the police department making us agents of the property.”

The Problem: The prosecutor never produced the agreement. The officer merely told the Judge that such an agreement existed. The defense attorney objected to this as Hearsay (an out-of-court statement used to prove the truth of the matter asserted). The Judge overruled it and convicted J.G.

The Ruling: Show Me the Paper

The Second District Court of Appeal got back to basics.

• The Law: Florida Statute 810.09(2)(b) makes it a crime to defy an order to leave only if that order comes from the Owner or an Authorized Person.
• The Hearsay: The officer’s testimony that “we have a contract on file” is classic hearsay. He is testifying about the contents of a document that is not in the courtroom.

The I.M. Precedent (The Library Case): The Court cited I.M. v. State, where a deputy arrested someone at a library.

• Prosecutor: “Do you have authority to issue warnings?”
• Deputy: “We do.”
• The Court: That is not enough. “We do” is just an opinion. The State must produce the Head Librarian or the Written Authorization to prove the deputy was actually an agent of the property.

The Result: Because the State failed to introduce the actual written agreement or call the property owner to testify, J.G.’s conviction was thrown out.

John’s 2026 Update: The “Public Camping” Crackdown

Note: In 2013, the State was lazy with paperwork. In 2026, they are weaponizing it.

1. The “Public Camping” Ban (HB 1365) Since the 2024 passage of HB 1365, Florida has banned sleeping on public property.

• The Tactic: Police are using “Trespass After Warning” as the primary tool to clear homeless individuals.
• The Defense: The J.G. rule still applies! If an officer arrests you for trespassing on “City Property” or a “Public Park” after hours, they must prove they had the specific authority to issue that warning at that specific time. We demand the Delegation of Authority paperwork. If they don’t have it, the arrest is invalid.

2. The “Business Records” Trap In J.G., the court hinted that the State could have introduced the agreement as a “Business Record.”

• The 2026 Reality: Prosecutors now bring a “Trespass Authorization Affidavit” to court.
• The Fight: We challenge this under the Confrontation Clause. We argue that this affidavit was created for litigation, making it “Testimonial.” This means the State cannot just hand the paper to the Judge; they must bring the Property Owner to court to face cross-examination. If the owner doesn’t show, the affidavit stays out.

3. Digital “Ban Lists” Police now use iPads to check “Trespass Databases” (like a digital ban list for downtown bars).

• The Hearsay: An officer testifying, “The iPad said he was banned,” is Double Hearsay. (The bar owner told the database, and the database told the officer). Unless they bring the bar owner to testify that you were banned, the iPad screen is inadmissible.

Demand the Source

The police cannot simply say, “I have the power.” They must prove it. Whether it’s a housing project, a library, or a public park, we make them produce the “Black Swan”—the actual evidence of their authority.

Call me at (407) 423-1117. Let’s see if they have the paperwork.

About John Guidry II

John Guidry II is a seasoned criminal defense attorney and founder of the Law Firm of John P. Guidry II, P.A., located in downtown Orlando next to the Orange County Courthouse, where he has practiced for over 30 years. With more than three decades of experience defending clients throughout Central Florida since 1993, Guidry has successfully defended thousands of cases in Orange, Seminole, Osceola, Brevard, Lake, and Volusia counties. He has built a reputation for his strategic approach to criminal defense, focusing on pretrial motions and case dismissals rather than jury trials.

Guidry earned both his Juris Doctorate and Master of Business Administration from St. Louis University in 1993. He is a member of the Florida Bar and the Florida Association of Criminal Defense Lawyers. His practice encompasses the full spectrum of Florida state criminal charges, with a particular emphasis on achieving favorable outcomes through thorough pretrial preparation and motion practice.

Beyond the courtroom, Guidry is a prolific legal educator who has authored over 400 articles on criminal defense topics. He shares his legal expertise through his popular YouTube channel, Instagram, and TikTok accounts, where he has built a substantial following of people eager to learn about the law. His educational content breaks down complex legal concepts into accessible information for the general public.

When not practicing law, Guidry enjoys tennis and pickleball, and loves to travel. Drawing from his background as a former recording studio owner and music video producer in the Orlando area, he brings a creative perspective to his legal practice and continues to apply his passion for video production to his educational content.