Criminal Defense
Since 1993
Since 1993
“Mind Reading” vs. Evidence: Why Having a Walkie-Talkie (or a Cell Phone) Isn’t a Felony
By: John Guidry
If you’ve ever seen an interview with a doctor or scientist, they always prance out their white coats because it makes what they’re saying more believable. Add blinking lights in the background, and you’ve taken it to the next level. Experts love technology.
One of the cool things about advanced technology is that, if sufficiently advanced, it is indistinguishable from magic. Neurologists claim they can read your mind with EEGs. Google and Amazon actually can read your mind (predicting what you’ll type or buy before you do it). Cops think they can predict behavior, too. Much like Amazon knowing you want a product before you order it, cops often “sense” when a crime is going down. That “sense” (or assumption) is exactly how we arrived at our case for today.
Did the police charge you with a felony just because you had a phone or radio on you?
Possession is not “Use.” Call John today at (407) 423-1117.
The Case: Sanchez v. State (The Walgreens Burglary)
At around 3:00 a.m., a Polk County officer noticed two men using a yellow crowbar to pry open the back door of a Walgreens. (Side note: Late-night cases make up a huge percentage of arrests. As Daft Punk sings, “We’re up all night to get lucky.” Cops know this, and they patrol like elite forces at the bewitching hour).
The Getaway: The men ran away and were quickly picked up by a black Mustang. Police stopped the Mustang moments later. Inside were three men, including Gerardo Sanchez.
- The Search: Police found burglary tools and several walkie-talkies.
The Charge: Sanchez was convicted of Attempted Burglary and the oft-forgotten felony: Unlawful Use of a Two-Way Communications Device (Florida Statute 934.215).
The “Combo Meal” Felony
This charge is usually part of the “combo meal” that comes with drug dealing arrests. The law says:
“Any person who uses a two-way communications device… to facilitate or further the commission of any felony offense commits a felony of the third degree.”
The State’s Theory (Mind Reading): The prosecutor argued that the only reason the Mustang arrived perfectly to pick up the burglars was that they used the walkie-talkies to summon the ride.
- The Problem: The officer never saw them on the radios. He never heard them talking. He just assumed it happened.
The Ruling: Assumption is Not Evidence
Sanchez’s lawyer moved for a Judgment of Acquittal (JOA), arguing there was zero proof of “use.” The Appellate Court agreed and threw out the felony.
Why?
- No Witnesses: No one saw the men holding or speaking into the devices.
- Impossible Logistics: The walkie-talkies were found stowed in the spare tire compartment in the trunk. The court noted the State offered no explanation for how the men could have used them and then buried them under the tire in the less-than-five minutes between the burglary and the traffic stop.
Because the State relied on “mind reading” (inference) rather than evidence, the charge failed.
John’s 2026 Update: Encrypted Apps & AirTags
Note: In 2019, the tech was walkie-talkies. In 2026, the tech is in your pocket.
1. The “Signal” & “Telegram” Trap Police rarely find walkie-talkies anymore. Now, they charge you with this felony for using Encrypted Messaging Apps (Signal, Telegram, WhatsApp) during a crime.
- The Sanchez Defense: Just having the app on your phone isn’t enough. If the messages are set to “Disappearing,” and the State cannot recover them, they often lack proof that you used the device to facilitate the crime. We argue: “Having a phone is legal. Unless you can prove I sent a text about the crime, you cannot convict.”
2. Is an AirTag a “Communications Device”? Criminals (and regular people) now use AirTags to track vehicles or coordinate meet-ups without speaking.
- The Legal Gray Area: Prosecutors argue that sharing your location via an AirTag counts as “communication.”
- The Defense: We argue that a passive tracking beacon is not a “two-way communications device” under the strict definition of the statute. It doesn’t transmit voice or text. It’s a tracking tool, not a talking tool.
3. Geofence Warrants In Sanchez, the cop “assumed” they coordinated. Today, cops use Geofence Warrants to show that two phones were in the same spot and exchanging data.
- Our Job: We attack the warrant itself. If the State uses digital data to prove “coordination,” we force them to show the specific content of the communication. Mere proximity of two cell phones does not prove a conspiracy.
Don’t Let Them Guess You Into a Felony
The State loves to tack on this “Two-Way Communication” felony to stack charges against you. But as Sanchez proves, assuming you used a device is not the same as proving it.
Call me at (407) 423-1117. Let’s disconnect their case.
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.