Jacksonville Criminal Lawyer Blog

When people think of the crime of trafficking in illegal drugs and drug traffickers, they think of people moving large amounts of illegal drugs in and out of Florida. The people charged with drug trafficking charges in Florida are alleged to be major drug dealers because it is supposed to take a large quantity of illegal drugs to reach the level of trafficking. The crime of trafficking in illegal drugs such as cocaine and methamphetamine requires a large amount of drugs because the penalties associated with those crimes are very severe. Otherwise, for smaller quantities of illegal drugs consistent with someone who just uses them should come with more minor penalties.

For marijuana and cocaine in Florida, this is often the case. A person has to be in possession of more than 25 pounds of cannabis (marijuana) to be charged with trafficking in marijuana. It is difficult for someone to argue that more than 25 pounds of marijuana is for personal use. A person has to have 28 grams or more of cocaine to be charged with trafficking in cocaine. 28 grams does not actually appear to be a large quantity of anything, but it is certainly more than what one would consider a personal use amount.

However, for illegal pills that are obtained without the appropriate doctor's prescription, a person can have very few pills and be charged with the serious crime of trafficking. It only requires possession of 4 grams or more of pills such as Vicodin, Percocet, Oxycodone, Oxycontin and other similar pills to be charged with trafficking. While those pills actually have just a very small amount of the actual drug in them (most of those pills are comprised of other substances), it is the weight of the entire pill, not just the portion of the actual drug in the pill, that is relevant to the trafficking quantity determination. Four grams of illegal pills are not very much. If a person has a few pills without a prescription, he/she could be subject to a trafficking charge that comes with a minimum mandatory prison sentence of 3 years.

We think this part of the law is unreasonable. There are people who lawfully acquired pain pills due to injuries and other conditions who become addicted to them or otherwise need them to deal with constant pain. It does not take very many pills for that person to be considered a drug trafficker under the law. A person who brings bricks of cocaine into the state in the trunk of the case may be appropriately considered a drug trafficker. Someone who gets a few pain pills without a prescription to treat pain should not be considered a drug trafficker under Florida law.

The police in Columbia County, Florida (about an hour west of Jacksonville, FL) executed a search warrant and allegedly found two of the residents flushing bags of crack cocaine down the toilet, according to an article on News4Jax.com. The article indicated that the two Columbia County suspects flushed more than 80 grams of crack cocaine down the toilet, but the police were able to retrieve it from the septic pipe. Eighty grams of crack cocaine is well over the amount needed for a trafficking in cocaine charge.

As criminal defense lawyers handling cases, including many drug cases, throughout Northeast Florida, we have seen similar cases where people are accused of trying to destroy, or otherwise get rid of, drugs when police come to a residence or hotel room. Many times, when the police search a home, hotel room or other location that is often occupied by multiple people, the police will find drugs somewhere on the premises, but it will not be clear who actually owned or possessed the drugs. The police will often arrest everyone at the premises, or the people closest to the drugs. However, these are often weak constructive possession of drugs cases. If the police and the State cannot prove who actually knew about and had some control over those drugs, the drug charges will not stick.

However, in cases where the police come in and they actually observe a person trying to dispose of the drugs, that is no longer a constructive possession case. If the police can prove that a person actually possessed the drugs and knew what he/she had was illegal drugs, that is an actual possession of drugs case that is often stronger than the constructive possession of drugs cases. If the police come in a home with a search warrant and see someone flushing a large quantity of crack cocaine down the toilet, that is obviously a stronger case than the one where drugs are located somewhere on the premises but not immediately near any particular person.

As criminal defense lawyers in Jacksonville, Florida, we handle a lot of drug cases from smaller possession of marijuana cases to more serious trafficking in marijuana, crack cocaine, pills and methamphetamine cases. One question that arises fairly often is: What is the difference between possession of illegal drugs and trafficking in illegal drugs?

Most people think of a major drug dealer moving large quantities of drugs when they think of drug traffickers. However, that is not necessarily the case, particularly when dealing with possession of illegal pills such as Lortab, Percocet, Vicodin, Oxycodone and Oxycontin, among others, without a prescription. It only takes a few pills to meet the requirements for a trafficking in pills charge. For other drugs like crack cocaine, powder cocaine or methamphetamine, there is a bigger difference between drug trafficking and possession. It takes 28 or more grams of cocaine to be charged with trafficking in cocaine and 14 or more grams of methamphetamine to meet the requirements for trafficking in methamphetamine. However, while those amounts are clearly more than short term personal use amounts, when you see them, they still are not the huge quantities of drugs some might expect for a trafficking charge.

With respect to trafficking in marijuana, it takes 25 pounds of marijuana to be charged with trafficking. So for marijuana at least, there is a pretty clear difference between simple possession and trafficking.

For pills, however, the difference is the most minute. It only takes a few pills to be charged with the serious charge of trafficking in pills and face the potential of significant prison time. This is scary because a lot of people may have old pills laying around or may have borrowed some for a particular injury or condition and may unwittingly have a trafficking amount of pills in their home.

In terms of what a person needs to do with the drugs to be charged with trafficking, there is no difference between possession and trafficking. All that is required to be charged with trafficking in illegal drugs is to have the drugs in one's possession. It is the amount, or weight, of the drugs which makes up the key differences depending on the particular drug.

We have written many times on this criminal law blog about drug cases that were dismissed because they were weak constructive possession cases. In other words, drugs were found near (or sometimes not even near) multiple people, and the police tried to pin the drugs on one or more of those people without being able to prove that any of them had knowledge and actual control over the illegal drugs. However, sometimes, the police and the state can prove a drug case against a person based on constructive possession of illegal drugs.

When the police and the state rely on constructive possession in Florida, that is not always an automatic dismissal of the drug charges. Many of the constructive possession of drug cases are weak, however some of them have some merit to them. We recently read about a case that took place just south of Jacksonville, Florida in Daytona Beach where a person was convicted of possession of crack cocaine on a constructive possession theory.

In this case, two people were in a car that was stopped by police. The driver was arrested for driving with a suspended license, and the car was searched. The police found a bag of crack cocaine on the floorboard on the passenger side of the vehicle where the defendant had been sitting. He was charged with and convicted of possession of cocaine.

Normally, just being close to the illegal drugs is not enough for the officer to arrest a person nor for a conviction on drug charges. However, in this case, the judge determined that the drugs were located right where the defendant was sitting and within arm's reach of the defendant only. The defendant would still have arguments that he did not know the drugs were there, someone else placed them there previously or the other occupant of the vehicle threw the drugs down there when he saw the officer. There are always defenses in a constructive possession of drugs case. However, there are also times when a judge or a jury decides there is sufficient evidence to go forward on a drug case even when possession of the drugs is just constructive.

Police in Bradford County, Florida, which is about an hour southwest of Jacksonville, Florida, used a tip from a pharmacy to make a big methamphetamine arrest, according to an article on Firstcoastnews.com.

Pseudoephedrine is a common ingredient in cold medicines such as Sudafed. It is also an important ingredient in the manufacture of methamphetamine. In the past, people would go to pharmacies and grocery stores and anonymously buy large quantities of Sudafed and other cold medicine to use the pseudoephedrine to make methamphetamine. However as methamphetamine production became more widespread, the laws were changed in Florida to require people buying cold medicines with pseudoephedrine to show identification and have their names and purchase documented in a log kept at the store. The Florida law also limits the amount of pseudoephedrine products a person can buy.

When a person buys or attempts to buy too many pseudoephedrine products, pharmacy or store employees may call other stores that sell pseudoephedrine products to check their logs and/or the police to report suspected methamphetamine manufacturing. Additionally, police in Florida involved in methamphetamine investigations or who have made methamphetamine arrests will often contact local pharmacies to see if they have evidence of pseudoephedrine purchases made by a particular person. This can be strong evidence in a methamphetamine manufacturing case.

In a recent criminal case that occurred south of Jacksonville, Florida, the police stopped a vehicle for a traffic violation. The vehicle was occupied by a driver and a passenger. The police became suspicious of the two occupants and asked each of them if they could search the vehicle. Both occupants consented to the search. For some reason, although neither occupant had committed a crime, the police officer handcuffed the passenger and placed her in his patrol car for approximately 30 minutes while the police searched the vehicle. The police did not find any drugs in the vehicle and let the two occupants go with only a traffic ticket.

However, when the police officers returned to their car, they found a bag of cocaine where the passenger had been sitting in the patrol car during the search. The police officers then chased after the vehicle and arrested the passenger for possession of cocaine.

The criminal defense lawyer for the passenger filed a motion to suppress the evidence of the cocaine because the passenger was illegally detained while she was sitting in the police car. The court agreed and threw out the evidence of the cocaine. The possession of cocaine charge was then dropped.

When the police officers stopped the vehicle and found that the occupants were acting suspiciously, that was not a sufficient basis to search the vehicle nor the driver and passenger. However, the police officers can ask the vehicle owner if they can search the vehicle. If the owner consents, then a reasonable search of the vehicle is valid. Of course, the owner can decline to give consent, and a search would not have been justified. Likewise, the police officers had no legal bases to search the individuals, but they could always ask for consent which each individual can give or refuse. If the owner consents to a search of the vehicle or his/her person, that does not give the police officer the right to handcuff the person and keep him/her in the patrol car for any length of time. If that does happen, that is an illegal detention and any illegal drugs or other evidence that is obtained as a result of that detention should be thrown out, as in this case.

The police officers can always search their own vehicles after a suspect has been placed in the vehicle. However, if a person has been illegally detained in the police officer's vehicle, or anywhere else, and drugs or other incriminating evidence is found as a result of that illegal detention, a criminal charge based on the discovery of the illegal drugs or other evidence will not stand.

A player for the Atlanta Falcons was arrested for possession of more than one ounce of marijuana, which is a felony in Georgia, according to an article on Espn.com. According to the article, Jonathan Babineaux was pulled over for having an expired tag and no tag light. The officer then smelled marijuana and searched the vehicle, presumably after getting consent from Babineaux. He found a bag with over one ounce of marijuana inside.

Babineax basically invited an arrest for felony possession of marijuana. The police officer listed at least two reasons for stopping Babineaux- an expired tag and no tag light. When a person's tag is expired, a police officer is authorized to stop the vehicle at any time regardless of whether the driver is violating any traffic laws. Likewise, if the tag light is out and the police officer is unable to see the numbers and letters on the license plate, the police officer can also pull the driver over for that reason. Once the police officer approaches the vehicle and indicates he smells marijuana, he is probably going to ask to search the vehicle. Why people with a big bag of marijuana or other drugs in the car agree to a police officer's request to search that vehicle is a mystery, but it happens often. People should just be aware that police officers do not have a blanket right to search vehicles, homes or one's person based on a suspicion of drug or other illegal activity. And if a police officer asks a person to search him/her, the vehicle or anything else belonging to that person, that person always has a right to refuse.

More and more states are considering making a relatively new substance illegal. The substance, which is called Salvia, looks like a mint leaf and comes from Mexico. The substance is consumed either by smoking the plant or chewing a paste made from the plant. When taken, Salvia produces psychoactive effects, the potency of which depends on your weight, how much you take, the strength of the Salvia, how you take it and other factors. Some people experience vision altering effects, a dream-like effect, confusion, loss of awareness, a floating sensation, loss of physical coordination and/or many other effects.

There are four states that have recently passed laws that consider Salvia a drug and make possession illegal just like marijuana, cocaine, heroin and other illegal drugs. Florida made selling, using or possessing Salvia illegal in 2008 and classifies Salvia the same as drugs like marijuana and LSD.

There are websites out there that sell Salvia just like any other plant because it is legal in many states. The plant has actually been around for many years and was used by the native Indians for a variety of purposes. However, its popularity and recreational use today are fairly new. Keep in mind that if you are in Florida, it is illegal to have or use Salvia and there can be serious penalties for someone arrested for possession of Salvia.

Most people understand that the Florida Constitution and the U.S. Constitution protect us from unreasonable searches and seizures. That means the police and other law enforcement agencies in Florida cannot search our homes, vehicles, etc. and seize our property without consent, a search warrant or emergent circumstances. However, the law is different regarding controlled substance records at pharmacies.

Florida law says that pharmacies are required to maintain drug records for at least two years. Pharmacies are also required by Florida law to make those controlled substance records available to law enforcement officers without the need for a search warrant, subpoena or other court order. Additionally, the police can obtain controlled substance records from pharmacies without notice to the patient from either law enforcement or the pharmacy. In other words, police in Florida are permitted to go to your pharmacy and obtain your controlled substance prescription records without a warrant and without you knowing about it.

This primarily comes up in two types of cases. Obtaining prescription drugs, such as Vicodin, Percocet and Oxycontin, by fraud is becoming more prevalent these days as we have pointed out on this blog in the past. Doctor shopping, where a patient may go to several doctors to get the same or similar prescriptions, is also fairly common. When the police investigate such crimes, they may go to the pharmacy for a suspect's records. Florida law allows them to obtain such information more easily than other evidence in other types of crimes.

Five people were arrested for allegedly growing high potency marijuana in a house in Waycross, Georgia, which is about two hours northwest of Jacksonville, Florida, according to an article on News4Jax.com. They also reportedly stole electricity from power lines to power the lights needed to operate a marijuana grow house.

We have written a few times on this blog about the increasing number of arrests of people growing marijuana indoors in grow houses that use special equipment to grow the marijuana. Of course, that special equipment requires a significant amount of power to operate. This additional electricity use can help police track this kind of activity when they search electricity records and see an inordinate amount of power going to a particular location. Police may use electricity records and other information to obtain search warrants for the home where the marijuana plants and grow equipment are located.

In this case, when police discovered that power was being diverted to the house, it alerted the police to the possibility that marijuana was being grown inside. And because the power was being stolen, it gave the police the right to investigate that crime and any others that were taking place in the home.

Each of the five individuals were charged with trafficking and manufacturing marijuana and theft.

A Florida trafficking in cocaine case was recently thrown out due to the illegal search by the police officer. In this case, the police officer responded to a domestic battery call where the suspect was possibly armed with a handgun. The police officer saw the suspect near the apartment and called to him. The suspect ran and was caught near a vehicle that supposedly belonged to him. The police officer arrested the suspect and searched him but found nothing. After the suspect was placed in the patrol car, the police officer searched his vehicle and found a trafficking amount of cocaine.

The criminal defense lawyer for the suspect filed a motion to suppress alleging that the search of the defendant's vehicle where the cocaine was found was illegal. The judge agreed and threw out the evidence of the cocaine.

The law has changed on this issue recently. In the past, the police officer could always search a person's vehicle if he/she is arrested near that vehicle, for instance during a traffic stop. However, now, if a person is arrested near his/her vehicle but at the time of the arrest has been secured and is not within arm's reach of that vehicle, the police officer does not have an automatic right to search the vehicle. In other words, if the suspect has no way of getting into his/her vehicle, there is no officer safety issue and the police officer cannot just search it automatically. If the officer has reason to believe that there is evidence of the crime for which the suspect has been arrested in that vehicle, then the officer may have a right to search it. But, the police officer's search is no longer automatic when a person gets arrested at or near his/her vehicle. If the police search the vehicle of someone who has been arrested and secured without specific facts suggesting there is evidence in that vehicle, any evidence of a crime found in the vehicle should be thrown out.

A criminal defense client asked us whether the police can conduct an investigatory stop, whether on foot or in a vehicle, based on an anonymous tip. For instance, let's assume that an unidentified person calls the police and says that person X is out on the street with illegal drugs in his possession or person Y is driving recklessly and may be drunk driving. Can the police in Florida approach either of these "suspects" and stop them to investigate them solely based on the anonymous tip? The answer is no.

Each of us has a Fourth Amendment right to be free from unreasonable searches and seizures by the police. That means the police cannot just stop someone without reasonable suspicion, i.e. specific facts, that a crime is taking place or is about the take place. When the police get a tip from some anonymous person, that by itself is not reliable enough to justify a police stop. The police would have the right to investigate further, but can only stop the "suspect" if the police officer observes certain facts that confirmed the tip him/herself .

For instance, in the case of the person who possessed illegal drugs, if the police officer observed the person making what appeared to be hand to hand drug transactions, that may be a basis to stop the person and investigate further. In the case of the alleged drunk driver, if the police located the vehicle and saw that the driver was swerving or speeding or otherwise driving recklessly, that would be sufficient for a stop and subsequent DUI investigation. However, if the police officer located the vehicle and the driver was driving appropriately, a stop based solely on the anonymous tip would be illegal.

In a recent possession of marijuana case in Florida, the criminal charges against a juvenile were dropped because the juvenile was searched illegally by the police officer. The police officer found the juvenile near a high school during school hours. He approached the juvenile and determined that he was supposed to be in school at the time. A police officer does have a right to detain a juvenile if he has reason to believe that the juvenile is skipping school. The purpose of the detention is to return the juvenile to the school.

In this case, the police officer detained the juvenile, searched her pockets and found marijuana. Normally, a police officer is allowed to search someone who has been arrested to make sure the suspect does not have a weapon and presents no risk to the police officer's safety. However, truancy, i.e. skipping school, is not a crime so this juvenile was not arrested. As a result, the police officer could not use the search incident to arrest basis to search the juvenile. If the officer has a right to detain someone, as he did here, he/she can pat that person down for weapons to ensure officer safety, but the officer chose not to do that and went straight into a search instead.

Alternatively, if the police officer had some reason to believe that the juvenile was in possession of marijuana or other illegal drug, he may have been permitted to search the juvenile. If the officer had patted the juvenile down first and felt something that seemed to be drugs or a weapon, then a search would likely have been authorized. At the hearing on the motion to suppress the marijuana, the police officer testified that he searched the juvenile for officer safety because he was about to place him in his patrol car to take him back to school. But since no arrest was made, this was not a valid basis to search the juvenile under the Fourth Amendment.

In order for a police officer to conduct a valid search of a person, the police officer must establish a legal basis. Since neither of the two possible bases for a valid search applied (search incident to an arrest or specific evidence of illegal drugs), the search was illegal, and the marijuana was thrown out.

Marijuana grow houses, where people make structural and electrical modifications to a home or other building to create a warm and humid environment where hybrid marijuana plants can grow indoors, are becoming more popular in Florida, according to a recent article on News4jax.com. Apparently, drug trafficking organizations are setting up grow houses all over Florida and the Southeast from Miami to Jacksonville to Atlanta. They are able to grow more potent marijuana that can bring in more money per plant. Additionally, many criminal courts have become less strict with marijuana crimes reducing the risk of setting up a marijuana grow house. According to the article, most people arrested for the first time for having a marijuana grow house get probation instead of jail or prison time. Of course, that will depend on a variety of factors in the case and the particular county where the suspect is arrested.

According to the article, the number of marijuana grow houses have increased exponentially since 2000 when most of the illegal drugs in Florida were brought in from Mexico and South America. The article estimates that approximately 100 pounds of marijuana from Florida grow houses are shipped from Miami to other parts of the country.

An Air National Guard helicopter flying around Bradford County, Florida (about an hour southwest of Jacksonville, Florida) spotted a marijuana plant growing in the backyard of a Starke, Florida resident, according to an article on News4Jax.com. Local police officers subsequently searched the property including the house and found marijuana and guns. This investigation was part of a special effort in Bradford County and Union County to target illegal drug dealers and drug users.

One question in a drug case like this is whether the homeowner's rights were violated when law enforcement observed the marijuana plant in his backyard and then searched his house and property. All individuals have very strong privacy rights in their homes and their adjacent property. As criminal defense attorneys, we have handled cases where police officers have gone into the backyards of people without search warrants and found illegal drugs only to have those cases thrown out because that kind of search is a Fourth Amendment violation. The analysis is different when the initial observation is done by a helicopter in the air space over a house. Whether the initial search of the property and observation of the marijuana is legal depends on several factors, such as whether the helicopter pilot had a right to be where he was and whether he had to use any special equipment to see one marijuana plant in the yard from a helicopter.

Any time the police or someone acting on behalf of the police observe suspected illegal drugs or suspected illegal activity in or near someone's home without a search warrant, there is the potential for a Fourth Amendment violation that needs to be investigated. If there is such a Fourth Amendment violation, evidence of illegal drugs or other illegal activity should be thrown out..

Recent statistics show that there were over 1.7 million arrests on drug charges in the United States in 2008. One might expect that many of these arrests targeted the more serious drug offenses like trafficking and manufacturing dangerous drugs like cocaine, heroin and methamphetamine. That was not the case.

Of the 1.7 million drug arrests last year, about half of them were related to marijuana, and most of those were for possession of marijuana. In Florida and the other southern states, arrests for possession of marijuana comprised more than half of all drug arrests. Fewer than 20% of all drug arrests were for drug dealing or manufacturing. In 2008, the number of people arrested for drug crimes was approximately three times that of violent crimes.

What this boils down to is we are still expending a tremendous amount of money and resources going after petty drug offenses at the expense of much more serious criminal offenses.

In a recent trafficking in methamphetamine and marijuana case, the police went to the house of the suspect with a warrant for his arrest. The police officers knocked on the door without announcing who they were and why they were there. The police officers then opened the door and found the suspect inside. They also found marijuana in the home that was the basis for the trafficking in marijuana charge. After his arrest, the suspect made some statements that the State intended to use against him in court.

Later in the case, the criminal defense lawyer moved to have the evidence of the marijuana and the defendant's statements thrown out based on an illegal arrest. In Florida, we have a law that says the police must knock and announce themselves and their purpose before entering a person's home to execute an arrest warrant. This is a compromise between a person's a 4th Amendment privacy interest in his/her home and the State's right to serve valid arrest warrants at a person's home. In addition to knocking and announcing who they are and why they are there, the police must give a person a chance to open the door and let the police inside before coming in on their own.

In this case, the police violated the knock and announce statute by failing to make the proper announcements and waiting to see if someone would answer the door. The question then is: what is the proper remedy for the defendant after such a violation? The proper remedy is not that the charges that were the basis of the arrest get dropped. However, there is support in the law in Florida that if the police obtain any evidence as a result of the improper arrest, that evidence will get thrown out and may not be used against the defendant in court. Therefore, if the police violate the knock and announce statute, any evidence they find in the house after the illegal entry and any statements they get after entering the house may be thrown out of court.

Consider a fairly common situation where a police officer makes a traffic stop of a vehicle. The police officer testifies that he saw the driver shuffling around in the vehicle as if he was trying to hide or grab something, such as a gun or illegal drugs. In this case, the police officer testifies that he suspected that the driver may be armed and/or involved in drug activity so he removes the driver from the vehicle to conduct a brief search for weapons. This is referred to as a patdown for weapons. Can the officer handcuff the driver prior to the brief patdown? Normally, where the officer can testify to specific facts indicating there may be a threat of harm, he/she can briefly handcuff the suspect(s) and briefly pat him/her down to see if he/she is in possession of a gun or other weapon.

However, once the suspect is patted down and no weapons, drugs or other illegal items are found, the officer must remove the handcuffs. Additionally, any basis for a further patdown or more invasive search has disappeared once the patdown has been completed and no threat is apparent.

This came up in a recent drug case south of Jacksonville, Florida where the initial patdown did not produce any guns, drugs or other evidence of criminal activity. However, the police officer kept the suspect in handcuffs. A second police officer came to the scene, patted the suspect down and found a crack pipe and some cocaine. That person was charged with possession of cocaine and possession of drug paraphernalia, but the case was later dismissed because that search was illegal. Once the initial officer conducted the pat down and did not find anything, there was no additional basis for a second patdown. The officer should have removed the handcuffs and allowed the person to leave. The second patdown was illegal, and the evidence seized as a result of that patdown could not be used in court.

In a recent drug case south of Jacksonville, Florida, the defendant's drug charges were thrown out after the court ruled that the police officer was not authorized to enter the defendant's home and any drugs that were found in his home were illegally seized.

In this case, police officers responded to a call of several people trespassing at an apartment complex. The police arrived and saw several people at the complex. The police approached the group and started to ask questions about what they were doing there. Rather than stay around and answer questions, the defendant walked away from the police and into his apartment nearby. One of the police officers followed the defendant into his apartment and saw him drop some bags containing marijuana and cocaine. The defendant was then arrested for possession of marijuana and possession of cocaine.

However, these charges were thrown out and the case was dismissed because the police officer did not have authority to enter the defendant's apartment.

Let's analyze this case from the beginning so people understand what the police and a citizen can and cannot do. First, a police officer is permitted to approach anyone and ask anyone questions as long as the officer does not detain the person(s). Of course, in that scenario, a person is free to walk away and refuse to answer a police officer's questions. Unless the officer can point to specific facts indicating the person is committing a crime, the officer cannot detain a person and prevent him/her from walking away. If the person does walk away, as in this case, the police officer may not follow him into his home. A police officer can only enter a person's home in three general circumstances: 1) the homeowner gives the police officer consent to enter the home, 2) the police officer has a search warrant to enter the home or 3) there are emergency, or exigent, circumstances authorizing the police officer to enter the home.

In this case, none of those exceptions applied. The State argued that there were exigent circumstances allowing the officer to enter the defendant's home. That argument failed. A person enjoys the strongest protection from unreasonable searches and seizures in his/her home. In order for a police officer to enter one's home based on exigent circumstances, at a minimum, the police officer must establish that there is a grave emergency and there are specific facts indicating the defendant is involved in criminal activity and/or there is evidence of illegal activity in the home that must be recovered right now and cannot wait for a search warrant. A general suspicion of illegal activity is far from sufficient to allow a police officer to enter someone's home without a search warrant.

In a recent case south of Jacksonville, Florida, the police got a call of a suspected burglary at the house next to the caller's house. When the police arrived, they found the defendant moving items from the house to a car parked next to the house. The front door to the home showed signs consistent with a break-in. The police determined that the defendant was the suspect about whom the neighbor called. Additionally, when the police arrived, the owner of the house was present standing on the front porch. The defendant was the husband of the homeowner.

The police officers arrested the defendant and then walked in the house to search it without getting consent from the owner. The officers referred to this search as a protective sweep search. The police officers opened a closet and found a large amount of marijuana inside. The defendant was charged with trafficking in cannabis, or marijuana.

The defendant's marijuana trafficking charge was ultimately dismissed because the police conducted an illegal search. The criminal defense lawyer for the defendant filed a motion to dismiss the marijuana evidence because the police did not have a right to enter the house.

A person's home receives the highest privacy protection in the Constitution. Police can only enter and search a person's house if they obtain consent to search, have a valid search warrant or are faced with an emergency, aka exigent circumstances. In this case, the police and the State tried to argue that the potential burglary scenario provided the exigent circumstances justifying the entry into the house and the search. However, the court disagreed and found that the police did not have a legal right to enter and search the house.

When a person is arrested, the police may have a right to search the immediate area around the suspect to make sure there are no threats to the police officer. However, a police officer may not arrest a person just outside his house and use that as an excuse to go into the house without a search warrant or specific facts indicating there is an emergency necessitating an entry into the house. In this case, the police had the burglary suspect detained, and the owner of the house was present. There was no apparent emergency that authorized the police to enter the house and search it. As a result, the search was illegal, and any evidence found in that house could not be used against the defendant in the trafficking in marijuana case.

There are situations when a police officer responding to a possible crime can enter a house without a warrant or consent. For instance, in one previous case, the police were responding to a burglary call and saw the screen door kicked out and the lock broken. The residents did not appear to be home. In that case, the police were authorized to enter the home and investigate what appeared to be a burglary. If they happened to find marijuana or other illegal drugs in the house while investigating the burglary, this evidence could very well be admissible in court.

Shorstein & Lasnetski was called by a client who had been arrested a few counties south of Jacksonville, Florida for possession of marijuana. The client was at his home on his back porch. A police officer was responding to a noise complaint made by the client's neighbor about the client. The police officer knocked on the front door, and no one answered. The police officer said that he heard voices around back so he walked around the house into the backyard. When he was in the backyard, he saw our client and some marijuana on a table near our client. Our client was arrested for possession of that marijuana.

This was clearly a bad search. After we filed our Motion to Suppress the marijuana seized as a result of the illegal search, the prosecutor agreed with our position and dropped the case. The reason this was an obviously illegal search is because a person has a strong privacy interest in his/her home and that includes the backyard. A police officer may not walk into a person's home or walk around a person's home into the backyard without a search warrant or a clear exception to the search warrant requirement such as consent or exigent circumstances. In this case, the police officer did not have a search warrant or consent to search, and an investigation into a noise complaint would not establish exigent circumstances.

Because the police officer did not have any right to walk behind his house into his backyard and violate our client's privacy rights, any marijuana he found as a result of the illegal search was thrown out and the possession of marijuana charge could not stand.

We see many cases where the police find illegal drugs near a person or group of people or in a house or car owned by someone and charge one or more people with possession of those drugs. For example, the police may go to a apartment or hotel room that is and has been occupied by several people and find illegal drugs. When no one admits to owning the drugs, the police arrest everyone in the room or house in the hopes that some of the charges will stick. The fact of the matter is that the police and the state must be able to show that a person had knowledge of the drugs and exercised some control over the drugs. Without those two elements, a charge of possession of drugs will fail.

In a recent criminal case near Jacksonville, Florida, police went into a hotel room occupied by two people. The defendant was arrested for carrying a concealed weapon. The police found a set of keys on a table in the room. The police officer asked the defendant to whom the keys belonged. The defendant said they were his keys and agreed to a search of his vehicle, according to the police officer. The police officers searched the vehicle and found a black bag on the passenger floorboard that contained a large amount of methamphetamine. The evidence indicated that the defendant and another guy arrived at the hotel in the vehicle together, and the defendant then admitted he knew about the methamphetamine.

The defendant was charged with trafficking in methamphetamine, and that charge was ultimately thrown out. While the evidence may have proven that the defendant knew about the methamphetamine, the drugs were not found on, or immediately near, him. They were found in a vehicle occupied by at least one other person. Because the state could not prove that the defendant had some control over the methamphetamine at some point, there was insufficient evidence to prove that he was in constructive possession of the drugs.

When police find illegal drugs in a vehicle, house, apartment, hotel room, on the ground, etc., it is not uncommon for them to arrest the person or persons who are in the general vicinity. However, unless someone actually admits to ownership of the drugs, if the state cannot prove that someone had knowledge and control over the drugs, there should not be enough evidence to support a conviction for possession of drugs.

The current law on federal student aid disqualifies anyone from receiving federal student aid or loans if he/she has a drug conviction, even just a drug possession conviction that is a misdemeanor. For instance, if a student is caught with a small amount of marijuana and gets convicted of drug possession, he/she would not be eligible to receive federal student aid. If a person decided to go back to school as an adult and had a drug possession conviction from twenty years ago, he/she may not be eligible for federal student aid based on that old drug possession conviction.

However, a new bill being proposed in Congress seeks to change that law. The new law, the Student Aid and Fiscal Responsibility Act of 2009, would allow people convicted of drug possession crimes to remain eligible for student aid. People convicted of more serious drug crimes, such as selling drugs, would not be eligible for federal student aid. One of the reasons for the proposed new law is that taking away a person's ability to go to or finish college does not do much to keep people off of drugs. For the millions of kids who experiment with drugs in college but otherwise go on to be productive members of the community, the new law would ensure that the minor mistake of a drug possession charge does not prohibit them from graduating college and attaining their career goals.

We have written before about how people who commit crack cocaine crimes in federal court receive higher sentences than people who commit similar crimes involving powder cocaine. In other words, in order to get a similar sentence in certain situations, it would take the possession of much more powder cocaine than crack cocaine. The Obama administration has indicated an intention to eliminate this sentencing disparity in federal criminal courts.

A new law is also being considered that would establish equal sentences for crack cocaine and powder cocaine crimes. The new law would lower the crack cocaine sentences to the current powder cocaine level instead of the inverse. If and when this law passes, people charged and convicted of crack cocaine crimes in federal court will be exposed to lower sentencing ranges that are in line with those of powder cocaine crimes.

The Obama administration has promised certain drug law reforms, and it appears that we may soon see some of the results. One of the issues that we have written about before is the disparity between criminal sentences for crack cocaine crimes versus powder cocaine crimes in the federal criminal system. Under the Bush administration, people convicted of relatively small amounts of crack cocaine would receive much higher prison sentences than people convicted of having higher quantities of powder cocaine. Under the new administration, we should see sentences on crack cocaine crimes equal to sentences for powder cocaine crimes. Additionally, the Obama administration is reducing funding for the media anti-drug campaign. Under the Bush administration, an enormous amount of money was spent on television commercials and various other media outlets to combat drug use, but studies showed that the campaign was not effective and the money was not well spent. The Obama administration is also trying to make it easier for people to obtain student loans after being convicted of relatively minor drug crimes. Lawmakers are also proposing bills that would decriminalize small marijuana possession under the federal laws and legalize medical marijuana in more places.

Criminal defense lawyers do not often assert the entrapment defense in criminal cases, particularly drug cases, because it does not apply in most cases. However, there are cases where the entrapment defense is a valid defense when a person is charged with a drug crime in Florida.

For instance, in a recent case, a defendant was charged with trafficking in cocaine after he set up a drug deal between a cocaine supplier and a buyer who turned out to be a confidential informant (CI) for the police. His criminal defense lawyer argued that the defendant was entrapped into committing the trafficking crime. The defendant testified that he was addicted to cocaine and also used other illegal drugs, such as marijuana and heroin. He could not afford his drug habit and needed a way to make some money. The CI approached him and asked him if he could arrange a deal for a large amount of cocaine. Several times, the defendant told the CI that he was not interested. However, the CI persisted and finally offered the defendant some of the cocaine if he would arrange the drug deal. The defendant agreed and was arrested by police for trafficking in cocaine right before the deal was done.

The standard for entrapment in Florida is as follows: it is not entrapment when the police intend to disrupt ongoing criminal activity and use reasonable means to do so. Alternatively, if the police are going out of their way to take advantage of someone who is not otherwise involved in drug trafficking or a related drug crime, and they use unreasonable methods to do it, the defense of entrapment can work. However, if the state can show that the defendant is predisposed to commit the drug crime, i.e. he/she has sold or been involved with illegal drugs before or was familiar with how drug deals work and the terminology, the entrapment defense is problematic, unless the defendant can show that the police's conduct was particularly outrageous.

Criminal defense lawyers do not often use the entrapment defense in drug cases. However, the law does allow it, and there are circumstances where it may be applicable. If it is successful, the drug charges will be dismissed.

The United States Customs and Border Protection ("border patrol") announced that they have seized a significantly greater amount of drugs in fiscal 2009 (three-fourths of the way into the fiscal year). Specifically, the border patrol seized approximately 3.3 million pounds of illegal drugs which is a 64% increase from 2008. Marijuana is still the drug that is seized the most by the border patrol at 2.6 million pounds. In addition to the marijuana, 60,411 pounds of cocaine, 4,384 pounds of methamphetamine and 1,463 pounds of heroin were seized by the border patrol. Along with the illegal drugs, $43.9 million in currency and 772 firearms were seized by the border patrol.

A common scenario for drug arrests in Jacksonville, Florida will have the police searching a car, house or other location, find a bag of drugs and arrest the person closest to it. When the police find drugs, they want to arrest someone, although proof that the person arrested possessed or owned the drugs does not always exist.

For instance, in a recent criminal case just outside of Jacksonville, Florida, the police were investigating a hotel they believed was a known drug area where crack cocaine was often sold. They observed the defendant enter and leave one of the hotel rooms several times. The police recognized the defendant as someone who had an outstanding warrant for his arrest. The police officer followed the defendant into the hotel room and found a crack pipe and cocaine in the room. The crack pipe and cocaine were on the night stand in between the two beds. The defendant was in the room along with two other people. No one in the room was in the immediate vicinity of the crack pipe and cocaine. The hotel room was not registered to the defendant.

The police arrested the defendant for possession of cocaine and possession of drug paraphernalia, perhaps because he was closest to the drugs or because they were familiar with his criminal history. However, the case was later dismissed by his criminal defense lawyer.

In order to make a valid drug arrest under these circumstances, the police must have evidence that the defendant actually possessed the drugs and/or crack pipe or was in constructive possession of the drugs and/or crack pipe. Actual possession of drugs is self explanatory. If the defendant had the drugs in his hand or pocket, that would be actual possession. Constructive possession of drugs is not as clear. In order to establish constructive possession of drugs, the evidence must show that the defendant knew of the drugs and had control over the drugs. For instance, if the drugs were in the defendant's jacket pocket on the bed next to him, that would be a better case of constructive possession. But, when the drugs are found somewhere in a room with multiple occupants that is not registered to the defendant, the drugs can belong to someone else in the room or someone else entirely. Under those circumstances, the police do not have sufficient evidence to arrest someone on drug charges.

A recent possession of cocaine case was dismissed after a judge ruled that the police did not have a right to enter the defendant's apartment and search the defendant for drugs without a search warrant. In this case, the police received a tip that drug activity was taking place at a specific apartment. When police officers responded to the tip, they saw that the apartment door was open. The police officers were able to see the defendant in the kitchen wiping off the counter. They noticed a digital scale on the counter along with a white, powdery substance that appeared to be cocaine and a straw. The police officers entered the apartment, handcuffed the defendant, searched him and found two bags of cocaine in his pocket.

The criminal defense lawyer for the defendant filed a motion to suppress alleging that the police did not have a right to enter the defendant's apartment and arrest and search him. As a result, all evidence of cocaine possession should be thrown out.

Everyone has a Fourth Amendment right to be free from unreasonable searches and seizures. This Constitutional protection is strongest in one's home. As a result, a police officer typically needs a search warrant if he/she is going to lawfully search someone's home. There are exceptions to the search warrant requirement if the police officer can prove that he/she could see the illegal drugs from a place the police officer had a legitimate right to be, it is immediately clear that the item seen is illegal or incriminating and the officer had a lawful right to access the drugs or other incriminating item. If all of those factors are not present, the police officer can only enter someone's home to conduct a search if there are urgent, or exigent, circumstances or the owner of the home consents to the search.

In this case, the state argued that exigent circumstances existed because the defendant was seen wiping the counter down. However, the court did not find this sufficient because there was no evidence that the defendant knew the police were present and was wiping the counter to get rid of the cocaine. Additionally, the police officers could have posted an officer by the door while the other officer went to get a search warrant. There was no other reason the police could not wait to get a search warrant while leaving an officer at the apartment to monitor the defendant.

Because the Fourth Amendment protection in one's home is strong and the State was unable to prove a need for the police to enter the defendant's home urgently or without a search warrant, the search was illegal, the drugs were thrown out and the defendant's conviction for possession of cocaine was reversed.

In drug cases, the police are often involved in the planning stages of the drug transaction, whether by using an undercover detective who poses as a buyer or seller, by using a confidential informant or by using surveillance to record the discussions between the parties involved in the drug transaction. With that kind of evidence, prosecutors often bring conspiracy charges in addition to the drug sale and/or purchase charges once the transaction has been completed.

However, police and prosecutors will sometimes assume the elements of a drug conspiracy are in place just because there were preliminary discussions about the drug transaction and the drug transaction took place. Conspiracy is a crime completely separate from the actual drug sale and purchase crimes. In order to prove a conspiracy, the state has to prove that there was an agreement between two or more people to commit the same offense. Therefore, if the state only has evidence that two people met at a certain location at the same time and completed a drug deal, they can assume there was an agreement to buy and sell drugs but without proof of the actual agreement, there is insufficient evidence to prove a conspiracy. In other words, proof of the drug deal, even where it appears to be elaborately planned, is not sufficient evidence to prove and agreement an a conspiracy.

Finally, where the state has evidence that two people agreed to a drug deal, it still may not be sufficient to prove a conspiracy. The proof of the agreement has to establish that the parties agreed to commit the same offense. So, if the state has recordings or other evidence that a buyer and a seller agreed to a drug transaction and actually went through with it, this is not a conspiracy because the two parties did not agree to the same offense. The two parties agreed to, and committed, separate offenses, i.e. sale of drugs and purchase of drugs. There is no common goal because one is selling and the other is buying and those are separate drug crimes.

Sometimes prosecutors like to add conspiracy charges in drug cases because it increases leverage for the prosecutor and adds exposure for a defendant. Prosecutors may look at evidence that the defendant(s) planned the drug deal and went through with it and assume they have a valid conspiracy charge. However, conspiracy is a completely separate crime and evidence of planning and/or a drug deal may not be sufficient to prove a conspiracy.

Police officers in Jacksonville arrested several people at a WalMart on Philips Highway for trafficking in cocaine after setting up a reverse sting at the store, according to an article on News4jax.com. The article indicates that the five people were arrested after an undercover Drug Enforcement Agency (DEA) agent posed as a cocaine dealer who was going to sell five kilograms of cocaine to the buyers. After meeting at the WalMart, the suspected cocaine buyers were arrested and the $50,000 in cash they brought and their vehicle were seized.

Police in Jacksonville and other areas of Florida use the reverse sting technique to make various drug arrests involving cocaine, marijuana and other illegal narcotics. The plan often begins when police make an arrest of someone who provides information on another suspect and then work undercover to make a drug purchase, ior in the case of a reverse sting, make a drug sale. When the suspect arrives to buy or sell the illegal drugs, the undercover officer makes an arrest of uniform officers staioned nearby come to make the arrest.

However, these cases are not always as open and shuit as they seem. Although the police are in control of setting up the sting, criminal drug cases that result from these incidents are often lacking in evidence. One might expect to hear audio recordings of conversations between the undercover police officer and alleged drug buyers or sellers. One would also expect to see video of the actual drug deal since the police set up the meeting in advance. However, this evidence is often missing for some reason. In a case where the police set up a drug buy or sale in advance, it is not always clear to everyone the purpose of the meeting and who is involved. Without the proper evidence of criminal activity, one should not assume that each person arrested was involved in a drug deal.

We recently reviewed a drug case in the Jacksonville, Florida area with the following facts. The police received a general tip of illegal drug and other criminal activity occurring in the suspect's home. That certainly was not a sufficient basis to obtain a search warrant so the police decided to go to the house, knock on the door and ask questions of the occupant(s). This house was in a rural area. The police arrived at the house, knocked on the front door and no one answered. The police officers were not deterred and decided to walk around the side of the house into the backyard and knock on the back door. While in the backyard, the police found marijuana. The owner of the house was subsequently arrested on possession of marijuana charges.

Was this a proper search of the defendant's property and seizure of the marijuana? No. Police officers are permitted to approach someone's home, knock on the front door and ask questions about possible drug or other illegal activity. However, if no one answers, the police cannot just violate a person's right to privacy in his property by entering his backyard. A person's 4th Amendment right to be free from unreasonable searches and seizures is strongest in his/her home. Police officers cannot just enter a person's home or backyard without specific evidence of illegal activity and a search warrant in most cases.

In this case, the criminal defense attorney filed a motion to suppress the marijuana that was found in the defendant's backyard. At the hearing, the police officers testified that it is common in rural areas for residents to accept visitors at their back door and the police officers had some reason to believe someone was inside the house. These two points are irrelevant. It really does not matter what the custom may be for receiving visitors in this area or that the police thought someone was home but just not answering the door. What does matter is that the defendant has a Constitutional right to privacy that protected him from the police entering his property without a search warrant beyond walking up to the front door to knock.

This case resulted in the judge throwing out the evidence of the marijuana and dismissing the drug charges.

When police want to search a person's house for illegal drugs or other evidence of criminal activity, the general rule is that they need to have probable cause and a search warrant signed by a judge to do so. However, there are circumstances where a police officer may be able to search a person's home with little more than a hunch. Police officers often conduct what are called "knock and talks". For instance, if a Jacksonville Sheriff's Office police officer thinks there may be illegal drugs or other evidence in a person's home, he/she may "knock" on the door and "talk", or ask the owner or occupant if he/she can search the house. If the owner or occupant says yes and consents to the search, the JSO officer may be able to search the house without probable cause or a search warrant.

Under Florida search and seizure laws, a police officer does not need to have probable cause and a search warrant or even reasonable suspicion to conduct a knock and talk. There are cases which allow a police officer to approach a house, knock on the door and ask for consent to search for drugs based on only a hunch or educated guess. The theory is that if a sales person or stranger is allowed to knock on a person's door and ask a question, a police officer can too.

When a police officer conducts a knock and talk to look for illegal drugs or other evidence, the issue is whether the owner or occupant gives consent to search freely and voluntarily. Even where the owner or occupant agrees to a search, that consent may not be considered free and voluntary under the law if certain factors are present such as a prolonged detention by the police officer(s), repeated requests to search, a threat that the police officer(s) will get a search warrant if consent is refused or any sort of show of force or intimidation by the police officer(s) to obtain consent. If police do anything more than simply ask for consent to search the house, the consent may not be valid under the law.

It is important to understand what your rights are in a situation like this. The main thing you need to understand is that if a police officer is asking for consent to search your house, car, clothing or anything else, you have a Constitutional right to say no. Understand that the request to search is usually not a simple, clear question such as, "Do you mind if I search your house/car/person?" The question is often more of a leading question or not a question at all, such as "I'm going to search your house, ok?" or "Since you have nothing to hide, then I guess you don't mind if we search your house." Failure to clearly assert your rights and refuse may be interpreted by the police officer (and written in his/her report) and the judge as consent. It can be a scary thing to say no to a police officer in such an encounter, but understand that the U.S. Constitution affords you the right to refuse consent to search your property and only you can assert that right.

In some states, although not Florida, it is legal to purchase and smoke marijuana for medicinal purposes. Of course, in other states, such as Florida, purchasing and possessing a certain amount of marijuana will get you charged with a crime that carries a minimum mandatory three year prison sentence. We have discussed previously on this blog the travesty of some of the marijuana criminal laws and the financial black hole the war on drugs has created. We do feel that at some point in the future, viewpoints and laws on marijuana are likely to change.

Enacting laws that allow people who are sick and in pain to smoke marijuana to relieve their symptoms is a slow and incremental process. The laws typically have to be proposed and rejected several times before they are passed. In some states, like Florida and other states in the South, medical marijuana laws are much farther from a reality than they are in many states in the West. However, according to an article on www.Stopthedrugwar.org, medical marijuana is legal in 13 states and at issue this year in 19 other states. The article indicates that in 6 of those 19 states, the medical marijuana bill is favored to pass. Most of those 6 states are in the Northeast; none of them are in the South.

We do look forward to the day when nonviolent drug users, particular marijuana users, do not clog up the criminal justice systems, or worse, the jails and prisons, and drain the financial resources of the various states. Unfortunately, in the South, that day is still a long time coming.

The U.S. Department of Justice under the Obama administration has indicated an opposition to the current disparities between sentences in crack cocaine cases versus powder cocaine cases in the federal criminal system. Currently, as a result of the Anti-Drug Abuse Act of 1986, mandatory sentences in federal criminal cases are harsher for crack cocaine cases than powder cocaine cases. This is true even though crack cocaine and powder cocaine are basically the same. The primary difference is that crack comes in a form that is smoked while cocaine comes in a form that is snorted.

The difference in federal sentences for these two drug crimes has had a major effect on who has been going to prison for long periods of time as opposed to getting relatively minor sentences. For instance, a person convicted of the crime of distributing 5 grams of crack cocaine faces a mandatory sentence of 5 years in prison while it would take the distribution of 500 grams of powder cocaine to get the same mandatory sentence in federal court. Studies show that crack cocaine is more often used by lower income individuals and minorities. In fact, more than 80% of the people prosecuted for crack cocaine charges in federal court are African-American, according to the U.S. Sentencing Commission.

No law has yet passed to address the difference in sentencing between crack cocaine crimes and powder cocaine crimes in federal court. However, there is clearly a shift in criminal and sentencing policies with the Obama administration and some indication that a new law will be passed to eliminate this difference.

When police in Jacksonville, Florida and other areas of Florida stop a vehicle and find drugs such as marijuana, crack cocaine or methamphetamine somewhere in the vehicle, they will try and attribute those drugs to one or more individuals in the vehicle and make drug arrests accordingly. Police claim that even though the drugs were not found on a person, the person was in constructive possession of the drugs. However, police often extend the meaning of constructive possession beyond its legal application and arrest someone for drugs without just cause.

For instance, in a recent drug case near Jacksonville, Florida the police pulled the defendant over while he was driving a vehicle rented to another person. There was another passenger in the vehicle. The police had a tip from a confidential informant that the defendant was carrying illegal drugs. The police officer observed that the defendant made a move to close the center console and was nervous and shaking. The police arrested the defendant based on information from the CI and searched the vehicle. The police officer found cocaine and Xanax in the center console.

After the defendant was arrested for possessing the cocaine and Xanax, he went to trial and was convicted. The police and prosecutors argued that he was in constructive possession of the drugs. However, he appealed that conviction and won his appeal. The appellate court noted that in order to prove constructive possession of drugs the state needs to prove that the defendant knew the drugs were in the center console and had the ability to exercise control over the drugs. The state did not prove constructive possession of the drugs. The car did not belong to the defendant, and there was insufficient evidence to prove that the defendant knew the drugs were in the center console. Those drugs could have just as easily belonged to the passenger or the person who rented the vehicle. The fact that the defendant was nervous and shaking could be explained by any number of factors including the fact that he had been stopped and was being investigated by the police. Closing the center console may seem suspicious in hindsight, but it does not prove that he did it to conceal drugs in there.

People get arrested quite often on drug charges when drugs are found near them or in a vehicle in which they are occupying. This does not mean a person is actually responsible for those drugs. Constructive possession of drugs is a misunderstood concept in criminal law, and there are often many explanations for the drugs that can be argued to successfully defend a person arrested on drug charges.

It is not uncommon in Jacksonville, Florida or other areas in Florida for police to make a drug arrest based on a tip from someone commonly referred to as a Confidential Informant (CI). These tips can come from a variety of different people and can be anywhere from very general to very specific. Some CI's are more reliable than others, and some of the tips are more thorough and accurate than others.

For instance, consider a case where a CI tells a Jacksonville Sheriff's Office (JSO) officer he saw a man conduct a hand to hand drug transaction on a street corner in downtown Jacksonville, Florida. The CI is someone who has provided reliable information to the Jacksonville police officer in the past that resulted in drug arrests. The CI described the street corner, the clothes the man was wearing and said the drugs were in his left front pocket. The Jacksonville police officer then goes to that street corner, sees the man and makes an arrest. The police officer finds a bag of crack cocaine in his left front pocket.

Is this a valid drug arrest for possession of crack cocaine by the Jacksonville police officer? We would say no. The law says that a police officer must have a reasonable basis to stop a person for suspected drug or other criminal activity and must have probable cause of drug or other criminal activity prior to making an arrest. In situations involving a tip by a CI, two primary factors come into play. First, how reliable is the CI? Has he/she provided reliable tips that led to arrests in the past or are his/her tips often, or even sometimes, unreliable? In this case, the CI was apparently reliable with his tips. The second important factor is how specific and thorough the particular tip is. In this case, the tip was too general and did not provide enough information to allow the officer to just walk up to the man and make a drug arrest. The tip did not describe in any detail the activity that the CI considered a "hand to hand drug transaction." How is the police officer, and later the judge, supposed to know that this CI can accurately detect a hand to hand drug transaction from some other type of hand to hand transaction? And how does anyone know at what angle and distance the CI observed the man and for how long? Additionally, the CI did not indicate the type of illegal drug involved, the packaging or anything else about the alleged transactions. Finally, when the polcie officer saw the man, he did not conduct any surveillance to confirm the tip nor did he know anything about the history of the alleged drug seller.

The Fourth Amendment to the Constitution protects everyone from illegal and unreasonable searches and seizures. When the search and seizure is based on a tip from a CI, there are usually issues regarding the reliability of the CI and the extent of the information provided to the police. These issues must be explored in any drug case with a potentially bad search to make sure the defendant's Constitutional rights are protected.

Jacksonville police raided a home off of Ivey Road in the Southside area of Jacksonville, FL and ultimately made eleven drug arrests allegedly related to fraudulent prescriptions, according to an article on News4Jax.com. The article indicates that the owner of the home was arrested and accused of printing false prescriptions for Oxycontin and similar drugs on his computer and paying people to fill the prescriptions. There are a variety of issues that arise from a large drug case such as this from whether the Jacksonville police had a legitimate basis for searching the home to the various levels of culpability of the eleven people arrested on the drug charges. When so many people are arrested pursuant to one case, Jacksonville police and prosecutors will always look to some of the defendants to talk and provide incriminating information about the others and themselves. This is often done at a time when defendants are not thinking clearly and do not fully understand their rights. Police and prosecutors may try and paint all defendants with the same brush, so to speak, by making those less involved (or not involved) think they are in the same kind of trouble as those most involved. It is important for anyone who is either the target of a Jacksonville police or other law enforcement department investigation or has been arrested to consult a criminal defense attorney prior to making any statements that could jeopardize your case. Giving a statement without understanding the facts and your rights could give the police the information they need to make a case against you, when they only pretended to have that information before the statement.

As the number of people laid off and otherwise unemployed in Florida grows, one Florida legislator has proposed to require people to pass a drug test before they can receive unemployment benefits, according to an article at Rawstory.com. The Florida legislator claimed that he is concerned that the unemployment compensation fund is in danger of running out and this would be a way to limit unemployment benefits to those who were intended to receive them.

As the representative for the Drug Policy Alliance points out, the individuals who are seeking unemployment benefits after having lost their jobs have already paid their own money into the system in order to receive these benefits when unemployed. Additionally, when they paid that money for unemployment insurance while employed, they would not have been told that they could only recover their unemployment benefits on the condition that they passed a drug test. The article also raises the question that it is unfair to make people already out of a job to pay for drug tests they were never told they would have to take to receive unemployment benefits.

One other state has tried to require people to undergo drug testing prior to receiving public assistance. However, that policy was successfully challenged in federal court on the grounds that such blanket drug testing was a violation of the individual's Fourth Amendment right to be free from unreasonable searches and seizures.

When the police in Jacksonville, Florida and other cities throughout the country find what they suspect to be illegal drugs, whether it is marijuana, cocaine, GHB or the many other narcotics, they will often use what is referred to as a field test kit to quickly test whether the substance is the drug they think it is. These tests are called field tests because they can be performed "out in the field" presumably allowing the police officer to determine whether a substance is an illegal drug without having to bring the substance back to the lab. When field tests results are positive, the police use those results as a basis for further searches and seizures, arrests and as evidence in a criminal case to obtain a conviction.

The problem is that these field tests are significantly flawed according to many articles and studies. A recent report issued by a forensic expert and a former scientist for the FBI found that the field tests commonly used by police give false positives more often than not when testing non-narcotic substances. For instance, they administered the field tests on non-marijuana substances, such as oregano, and found that the field tests resulted in false positives approximately 70% of the time. The field tests were similarly inaccurate when testing non-cocaine substances.

Police use field tests for a variety of purposes, i.e. to obtain search warrants, to search vehicles and homes, to seize evidence, to charge people with drug crimes and as evidence in a criminal trial. The United States Supreme Court has prohibited the use of inaccurate tests to prosecute someone for a drug crime, or any other crime, for that matter. These reports call into question the Constitutionality of using drug field test kit results against any defendant charged with a drug crime in a criminal case.

All residents of Florida, and the United States as a whole, are protected by the Fourth Amendment which protects people from unreasonable searches and seizures by police. One aspect of the law on searches and seizures generally requires police to obtain a search warrant before entering someone's home to look for evidence. A search warrant must be based on specific evidence that gives the police probable cause to believe that evidence of a crime can be located in a particular place. Normally, when a Jacksonville, Florida police officer asks a judge to issue a search warrant, that police officer swears to knowledge of evidence providing probable cause to believe that evidence of a crime, such as marijuana or cocaine possession or trafficking, is currently located in a specific place, such as a suspect's house.

What if a Jacksonville police officer suspects that illegal drugs, like a shipment of marijuana or cocaine, will be delivered to a particular location in the future? Can the police officer obtain a search warrant now for evidence of illegal drugs that may materialize later? This is referred to as an anticipatory search warrant- where the police allege that there is evidence indicating that drugs or other evidence will be at a specific place at a specific time in the future. Anticipatory search warrants are not automatically illegal, but they require an additional element.

As stated, in order for a regular search warrant for existing drugs or evidence to be valid, there must be probable cause to believe that the drugs or evidence are present at the specific place to be searched. For an anticipatory search warrant, where the drugs or evidence are not present when the search warrant is requested but expected to be present in the near future, the police officer must establish that some triggering event will occur that will cause the drugs or evidence to appear. For instance, in a drug trafficking investigation, a confidential informant may inform the police that a suspected drug dealer will be getting a shipment of marijuana, cocaine or some other drug delivered to his/her house or apartment. The triggering event would be the delivery of the drugs by some specified person. The police officer may request a search warrant now to search that location at some specified time in the future. In order for the search warrant to be valid, there must be probable cause not only to believe that the drugs will be at that particular location but also that the triggering event will occur. In other words, the police officer must show some specific evidence indicating that the triggering event, i.e. the delivery by the person, will take place in the relevant time frame. The police officer may not just generally assert that a delivery will be made at some point and obtain a search warrant.

In any case where a suspect's home, car or other property has been searched pursuant to a search warrant in the Jacksonville, Florida area resulting in the seizure of drugs or other evidence, it is important to contact a law firm whose lawyers understand the search and seizure laws to see if Fourth Amendment rights were violated and a motion to suppress can be filed that would suppress any evidence obtained as a result of the illegal search warrant.

Eleven people were arrested and approximately $24 million worth of cocaine and marijuana were seized as a result of a recent drug investigation in Palatka, Putnam County, Florida (which is about an hour south of Jacksonville, Florida), according to an article on Firstcoastnews.com. The cocaine and marijuana drug investigation involved local Putnam County police as well as officials from the Drug Enforcement Agency (DEA) and Immigration and Customs Enforcement (ICE). According to the article, the cocaine and marijuana as well as cash, vehicles and electronic equipment were stored in two houses on San Jose Avenue in East Palatka, Florida.

It is unclear from the article how they arrived at the $24 million dollar value for the drugs, but clearly this case involves a significant amount of drugs. In a case of this size with multiple law enforcement agencies and many defendants, there are likely to be several issues regarding to whom the police can actually attribute the illegal drugs. Widespread arrests such as these often involve people who may have little or no direct connection to the drugs in the hopes that the police can get incriminating statements from them, flip them as witnesses or somehow tie them to drugs found at a particular location.

It is not uncommon for police to use shaky evidence from unreliable co-defendants to try and incriminate others on whom the police have little to no evidence. This occurred in a recent ecstasy trafficking case involving a Shorstein & Lasnetski, LLC client. Once we uncovered the true nature of the alleged evidence and the unreliability of the state's witnesses in that case, it was clear that the state could not prove their drug trafficking case against our client and the charges were dropped.

Fourteen suspected cocaine dealers in Fernandina Beach (Nassau County), Florida were arrested this week, according to an article at www.Jacksonville.com. According to the article, the arrests and charges were the result of a six month investigation into drug dealing in the Fernandina Beach and Amelia Island areas. Apparently the investigation involved the Jacksonville, Florida office of the Drug Enforcement Agency (DEA) and the local Fernandina Beach police department. The police officers allegedly used undercover police officers to make drug purchases from Side Hustle Fashions, which is a clothing and shoe store in Fernandina Beach, Florida. Police also executed search and seizure warrants and seized significant quantities of drugs and cash (Police often seize cash and other property that they believe are proceeds of, or related to, illegal drug activity. However, there is a procedure criminal defense lawyers can follow to return that money and property for people when they are improperly seized.)

The article indicates that some of the the fourteen people arrested and charged with drug crimes as a result of the Fernandina Beach drug investigation will end up in federal court while others may face state charges. While there are significant differences between charges, sentences and procedures in the federal system as opposed to the state system, most of the charges will involve the sale and delivery of crack cocaine.

If you have any questions about your rights in a drug case, or any other criminal case, whether it is in the federal criminal system or the state system, contact a law firm whose attorneys have the experience and knowledge to understand all of the legal issues in a complex criminal case and will protect your rights if you have been arrested and charged.

Two individuals were arrested this week for allegedly trying to buy $100,000 worth of cocaine from federal undercover agents, according to an article on News4Jax.com. Apparently, federal law enforcement authorities and local St. Johns County, Florida police were working together on the case over the last few months. Both men were arrested and charged with trafficking in cocaine.

The majority of undercover illegal drug investigations target sellers and suppliers of illegal drugs such as cocaine, crack, methamphetamine and ecstasy. However, when the amount of the drugs is big enough, local and federal law enforcement officials will set up an undercover operation to try and arrest buyers as well. In this case, the potential buyers reportedly were looking to buy 5 kilograms of cocaine. The idea is that buyers of such quantities of drugs will turn around and sell the drugs to other drug suppliers or users.

In mid-2008, a relative of A.T. contacted the law office of Shorstein & Lasnetski, LLC in Jacksonville, Florida after A.T. was arrested for conspiracy to traffic MDMA (aka ecstasy). This criminal charge of conspiracy to traffic ecstasy is a first degree felony which carried a minimum sentence of 15 years in prison and a maximum sentence of 30 years in prison.

Shorstein & Lasnetski investigated the case and noted that the state's case was seriously lacking in evidence. Of course, in any criminal case, the state has the burden of proving beyond a reasonable doubt that the accused defendant is guilty of the crime for which he was charged. In this case, the state was relying primarily on two secretly recorded conversations between A.T. and some acquaintances and the unreliable testimony of known drug dealers. Shorstein & Lasnetski reviewed the transcripts of the recorded conversations involving A.T. as well as numerous other conversations in which A.T. was referenced. What we determined was that the conversations involving A.T. were vague at best and did not directly implicate him in any illegal drug activity. Additionally, the other conversations between A.T.'s acquaintances never indicated that A.T. was involved in any drug deals, of ecstasy or any other illegal drug. In fact, those other conversations pointed to other individuals who were selling the drugs who had nothing to do with A.T.

To cement A.T.'s defense, Shorstein & Lasnetski took depositions of the known drug dealers who the state relied upon to tie A.T. to ecstasy drug deals. In these depositions, these witnesses gave conflicting statements and failed to support the state's case against A.T.

Shortly before the trial was to begin, the state decided to drop the conspiracy to traffic ecstasy charge against A.T. based on the conflicting and deficient evidence against him.

If you have been charged with a drug crime in the Jacksonville or the North Florida or Southeast Georgia area, feel free to contact us to learn your rights and prepare for your defense.

Police in Orange Park, Clay County, Florida raided a house pursuant to a suspected illegal marijuana growing operation, according to an article on News4Jax.com. According to the article, the Clay County police officers seized numerous marijuana plants and observed marijuana growing equipment such as lights and ventilation equipment in the house. Charges have not been filed at this early stage, but it is likely that felony marijuana charges will result from the search and arrests.

The article on the Jacksonville, Florida paper's website indicates that the police discovered the house based on "intelligence." One issue that is sure to arise in the following criminal case is what specific facts the Clay County police had to justify a search warrant for the house and the subsequent search and seizure of the marijuana plants and other evidence. At a motion to suppress evidence in the criminal case, the Clay County police will have to show that they had a legitimate factual basis to obtain a search warrant and search the house. This is just one of the several issues that arise in a drug case involving search warrants and the seizure of evidence from someone's home.

If you have any questions about your Fourth Amendment rights to be free from unreasonable searches and seizures or a police officer's right to search you, your vehicle, your home or any other belonging, feel free to contact us for a free consultation about the laws related to drug cases and illegal searches and seizures.

The new U.S. Attorney General in President Obama's administration stated that the federal government has changed its policy and will not raid medical marijuana establishments in states where selling marijuana for medicinal purposes is legal. Medical marijuana is legal in thirteen states. Florida is not one of them, and none of those states are in the South.

One might ask how law enforcement officials can legally raid a medical marijuana facility if the state has made it legal to sell marijuana with a doctor's prescription. The reason is that the particular state's law may say it is legal but federal law may say it is not. As a result, under the Bush administration, federal Drug Enforcement Agency agents and other federal law enforcement officials were directed to raid medical marijuana locations pursuant to federal drug laws despite the contrary state marijuana laws.

However, under Obama, that is expected to change. This should not directly affect residents of Jacksonville or other cities in Florida (unless and until Florida legalizes marijuana for medicinal purposes), but it does clearly indicate a shift in the priorities of the current federal government away from targeting and prosecuting marijuana users, at least in the states where medical marijuana is legal.

At a time when the Florida and U.S. economies and credit markets are in a downward spiral, people and governments often have to innovate to recover. The idea of legalizing marijuana should not be considered groundbreaking, progressive thinking in 2009, but it is far from accepted as appropriate and far from a reality. However, in California, a lawmaker has proposed a bill that would legalize marijuana in that state.

The proposed law legalizing marijuana would create a system that would tax and regulate marijuana production, distribution and sales. The state would license producers and sellers who could sell marijuana to individuals over 21 years of age. The law would also allow adults to grow up to ten marijuana plants for personal use only.

This proposal is gaining traction in California partly because of the severe budgetary crisis in that state. It is estimated that the regulation and taxation of marijuana in California would bring $1.3 billion in revenues each year. Marijuana is the largest cash crop in California, and the state government is not making any money from it. There would be a corresponding savings associated with the end of the failed and expensive war on marijuana along with the reduction in inmates who are in jail on petty marijuana charges.

It is unclear if this law will pass this year. I suspect that a law legalizing marijuana will pass at some point, most likely initially in California, Oregon, Washington or a similar state. As for Florida, we face similar budgetary issues and state and local governments that expend a lot of time, effort and money going after marijuana users and sellers. The Florida economy could use the billions of dollars of revenues that legalized and taxed marijuana would bring. Will marijuana become legal in Florida? I think so. Will it happen any time soon? That is hard to say.

The following situation occurred south of Jacksonville, Florida and involved an illegal search of a person for drugs. The person was the passenger of a vehicle that was stopped due to an inoperable taillight. The police officer suspected that the occupants of the vehicle may have had drugs or stashed drugs in the vehicle because of what the officer described as suspicious movement made by the occupants after being stopped by the police officer. The police officer had a drug dog who walked around the vehicle. The drug dog did not alert to the odor of illegal drugs. The police officer then asked for consent to search the driver. The driver agreed. While the police officer was searching the driver, a second police officer arrived and told the passenger that he was going to be searched and asked him he he had anything on him. The passenger reached into his pocket and gave the second police officer a pill bottle with some marijuana and illegal prescription drugs. He was then arrested for drug possession.

Is this a valid search and seizure of drugs from the passenger? No. First, the police officer did not have a reasonable basis to search the passenger so the State could not argue that they would have located the drugs anyway pursuant to a legal search. Additionally, when the passenger gave the police officer the drugs, that was not voluntary because he was submitting to police authority after the police officer told the passenger he would be searched anyway. The important points are that a police officer can always ask a person if the officer can search him or her. The person can always refuse. If a person voluntarily consents to a search or gives a police officer drugs or other evidence of a crime, that evidence will likely be used against that person to effect an arrest and in court. However, if a person succumbs to police authority, as in this case, his/her actions may not be voluntary and any evidence that is discovered may be suppressed.

With the new administration, the federal government will shift its focus regarding federal drug crimes. It appears that the Obama administration will focus more on rehabilitation and be less stringent with nonviolent first-time federal drug offenders than the prior Bush administration.

Some of the highlights of the Obama administration's policies on federal drug crimes include:

- increased efforts to end racial profiling by law enforcement who are investigating drug crimes;

- offering alternatives to first-time nonviolent federal drug offenders such as a diversionary type rehabilitation programs as opposed to incarceration;

- providing education, job training and substance abuse counseling to federal drug offenders to assist them in integrating back into the community after they have completed their sentences;

- providing a prison to work program to give federal drug offenders a better opportunity to obtain gainful employment and reduce the instances of recidivism;

- eliminating the differences in sentencing in the federal system between powder cocaine crimes and crack cocaine crimes; and

- increasing the focus on methamphetamine related federal crimes.

A doctor in Columbia County, Florida (which is about an hour west of Jacksonville, Florida) was arrested on charges of assisting in obtaining a controlled substance by fraud and unauthorized possession of prescription forms. In a prior post, we discussed how law enforcement authorities in Jacksonville and other areas in Florida are increasingly looking at alleged illegal drug crimes involving prescription drugs as more people, particular younger people, are abusing prescription drugs such as Oxycontin, Xanax, Percocet and many others. Police are focusing not just on the users but on doctors and other staff members at hospitals and doctors' offices who have access to the prescription drugs and prescription drug forms.

According to the article, Dr. Yong Am Park, who is the subject of this criminal investigation, also had his medical license suspended by the Florida Department of Health. He will likely face a hearing down the road that may determine whether he will be able to continue practicing medicine. A doctor accused of crimes faces an additional sanction of losing his/her medical license and ability to make a living as he/she did before in addition to the criminal charges, particularly when those criminal charges directly relate to the doctor's practice.

The U.S. Justice Department issues a yearly report on the threat created by illegal drugs in the United States. This National Drug Threat Assessment is a lengthy report that discusses various drugs, where they come from, who is using them, who is selling them, how drug dealing is financed, the effects of illegal drugs on society and other issues on a macro scale. Some of the highlights of the report are as follows.

More than 35 million people used illegal drugs or abused prescription drugs in 2007.

More than 52% of all inmates in federal prisons are there due to drug offenses.

Cocaine is the leading drug threat in the U.S., and the vast majority of cocaine comes from Mexico across the U.S.-Mexican border. However, the availability of cocaine has decreased in most U.S. markets.

Methamphetamine is the second leading drug threat in the U.S. followed by marijuana, heroin, prescription drugs and ecstasy (MDMA). Methamphetamine production is expected to increase from 2007 levels along with domestic growing of marijuana (cannabis). The potency of marijuana has also increased.

Illegal prescription drug distribution is on the increase.

The entire report can be found here.

The Jacksonville Sheriff's Office (JSO) announced that three people were arrested (Alex Campbell, Frederick Campbell and Temario Wiley) on drug trafficking charges after police found a large amount of marijuana that had been delivered by UPS to a house on Praver Drive in Jacksonville. The Jacksonville police also seized $500,000 and guns incident to the arrests. According to the article at News4Jax.com, the Florida Department of Law Enforcement (FDLE) and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) were also involved in the drug trafficking investigation.

It is not uncommon for an investigation in Jacksonville, Florida or anywhere else for that matter to begin and end this way. Police will often receive a tip of drug related activity from a buyer of illegal drugs or someone involved with or associated with the suspects who has been arrested and then provides information about others to avoid, or reduce his/her exposure to, jail or prison. This way, the police will work their way up the chain to try and arrest those people who are more prominent in selling drugs or bringing them into the city. It is also not uncommon for people to send drugs to each other via UPS, Federal Express, the United States Postal Service and other commercial delivery companies. However, there are employees of those entities who are trained to detect packages containing drugs and when they find such a package, they will alert the police who will bring a drug dog and/or seek a search warrant for the package. If the police decide to conduct a controlled delivery of the package to the intended residence, legal questions arise as to whether the drugs and/or knowledge of the drugs can be attributed to the person who accepts the package and anyone living in or present in the home when the package is delivered.

If you have been investigated or arrested on drug trafficking or other drug charges, contact a law firm whose attorneys understand the many legal issues that are present in drug cases so your rights can be protected.

A Jacksonville, Florida elementary school teacher at Cedar Hills Elementary School (Gina Cevasco) was arrested after Jacksonville Sheriff's Office (JSO) officers reportedly responded to her house in reference to a drug complaint, according to an article on News4Jax.com. The JSO officers apparently obtained consent to search the house from her son, and then her, and found the drugs and gun in the house. The article does not give any further details and without them, it is hard to specifically evaluate the several issues that are potentially present, a couple of which include: whether the consent to search initially given by the son was legally sufficient to allow the Jacksonville police to search when and where they did; whether the consent to search obtained from the son and later the mother/teacher was lawfully obtained; whether the tip the police received and any other evidence they may have had were sufficient to rise to the level of probable cause allowing the police to obtain a search warrant if consent had not been given; based on where the drugs and gun were found and the number of people who have been in the house, whether the drugs and gun can be attributed to any particular person.

One issue that immediately came to mind after reading the article is that many people do not know their Constitutional rights when it comes to such encounters with police. If the police approach a person on the street, in his/her car, at his/her home, no matter what the police officer says and how much they purport to know about drug or other illegal activity taking place, a person has a right to refuse to give consent to police to search his/her person, home, car or other belongings.

If you have questions about your rights when it comes to a drug investigation, arrest or charge, an encounter with police or any other search and seizure issue in the Jacksonville, Florida or Northeast Florida area, contact an experienced law firm whose attorneys understand the ever-changing law in this area so your rights can be protected.

Most people in Jacksonville and throughout Florida know that it is against the law to drive a vehicle without wearing a seat belt. A violation of this law typically results in a traffic ticket and a fine. It is also fairly common knowledge that many criminal investigations and arrests are initiated after a Jacksonville police officer pulls a car over for a traffic violation and then suspects that a crime is being committed by the driver such as a DUI (aka driving under the influence or DWI) or some type of drug possession.

However, what is not commonly known in Jacksonville and throughout Florida is that while it is illegal to drive without wearing the seat belt, a police officer may not pull a driver over for that reason alone. A seat belt violation is referred to as a secondary offense, which means that a police officer may only give a driver a ticket for that offense after the officer has stopped the driver for a different, primary offense, such as speeding or careless driving. As a result, under the current law, the fact that a driver is not wearing his/her seat belt cannot be used as a basis to pull a driver over and initiate a more serious criminal investigation into a crime such as a DUI or drug possession.

Florida lawmakers are proposing to change this law to make a seat belt violation a primary offense. If they are successful, police officers will have the authority to pull drivers who they have reason to believe are not wearing their seat belts. This would hopefully lead to fewer injuries and deaths resulting from accidents but would also likely lead to more DUI and drug arrests.

Consider a scenario where a Jacksonville police officer suspects a person is involved with illegal drugs (such as marijuana, cocaine, heroin, ecstasy or methamphetamine) and enlists the help of a confidential informant (aka a CI) to set up a drug deal with that person. For instance, the Jacksonville police officer may ask the CI to ask the suspect to deliver a container with drugs to another person who happens to be an undercover Jacksonville Sheriff's Office officer. The police officer may encourage the CI to do this by offering money or a good deal on criminal charges the CI is currently facing. So, the CI approaches the suspect and tells him that the CI will give the suspect some money if the suspect takes the container, delivers it to another person and returns with the money the other person gives him. When the suspect delivers the container, he is arrested by the undercover police officer.

The suspect is then charged with a drug possession and/or distribution crime. At the trial, the suspect's criminal defense lawyer wants to know who this CI is so the CI can be questioned about the suspect's role in this incident. In Florida, does the State have to reveal the identity of the CI to the criminal defense attorney?

Normally, in a criminal prosecution in Florida, the State has a limited right to withhold the identity of a CI. Of course, if the State intended to call the CI as a witness at the trial, the State would have to alert the defense to that fact and give the defense the information identifying the CI. But assuming the State does not intend to call the CI as a witness at trial because the State feels they can prove their case with the testimony of the undercover officer alone, the criminal defense lawyer could still force the State to reveal the identity of the CI if he/she can establish that the CI is relevant and helpful to the client's defense. For instance, in this case, the CI may be helpful to establish two possible defenses. The first would be the defense of entrapment which is further discussed here. The second defense would be that the suspect did not know that drugs were in the container he delivered. The testimony of the CI could be relevant and helpful for either defense. If so, the defense may be successful in learning the identity of the CI and using him/her as a witness for the defense at trial.

In Jacksonville, Florida, it is not uncommon for a person to be arrested and charged for a possession of drugs (such as marijuana or cocaine) in addition to driving under the influence of alcohol or drugs. However, depending on the circumstances, the prosecutors are not allowed to use evidence of one crime to bolster the other.

For example, in Jacksonville, Florida, a police officer reported that a driver was swerving on the road and pulled him over. The officer indicated that the driver smelled of alcohol and had bloodshot eyes and slurred speech. After the DUI (aka driving under the influence or DWI) investigation, the police officer arrested the driver because he felt the driver was under the influence of alcohol to the extent that his normal faculties were impaired. When a person is arrested, he/she will be searched by the police officer. In this case, the police officer found a small bag of marijuana on the driver. As a result, an additional charge of possession of less than 20 grams of marijuana (a misdemeanor charge) was added. If this case went to trial, should both charges be tried together?

A criminal defense attorney would likely decide to separate the charges so that two different juries decided the two different charges. This would be done pursuant to a motion to sever the two charges. Why? Because the defendant has a right to have a fair determination of his guilt, or lack thereof, on each charge. Whether the defendant was under the influence of alcohol and impaired while driving and whether he was in possession of marijuana are two different issues. However, if a jury heard evidence of both alleged crimes together, a jury could easily be prejudiced and let the evidence of one crime influence their decision on the other crime. In other words, a juror might assume that a person who drives drunk would be more likely to possess marijuana or a person who carries a bag of marijuana with him probably drives while impaired. This would violate the defendant's rights and be improper. As a result, those two charges should not be tried together.

Not necessarily; it depends on the circumstances. Consider a case in Jacksonville, Florida where a driver caused a serious motor vehicle accident. The Jacksonville police officer showed up and reported that this driver appeared impaired, unresponsive and subject to mood swings. At the hospital, a blood sample was taken from the driver, and the test results were positive for marijuana metabolites. Can the results of this blood test be used against that driver in a trial for driving under the influence of a controlled substance (also referred to as DUI or DWI)?

In this case, a criminal defense lawyer would argue that the existence of marijuana metabolites (as opposed to the actual parent drug) in a defendant's blood sample does not prove that the driver was under the influence of marijuana or otherwise impaired at the time of the accident. Forensic toxicologists would be used to testify that marijuana metabolites can remain in a person's system for days after marijuana use and far beyond the time when the effects of marijuana use have worn off. The issue at the DUI trial is whether the defendant driver was under the influence of marijuana at the time of the crash to the extent that his normal faculties were impaired. Since any marijuana use could have occurred days before the crash, this evidence of marijuana metabolites is marginally relevant to the criminal case, if at all. On the other hand, this evidence of marijuana metabolites in the defendant driver's system is highly prejudicial as it may lead jurors to assume the defendant was impaired or paint him as a drug user who was likely impaired or prone to commit such crimes. Because of the danger of this kind of unfair prejudice at the defendant's trial, the criminal defense lawyer should argue that this evidence should be excluded from the criminal trial as more prejudicial than useful to prove the elements of the DUI crime.

Entrapment is a word that is often misused and misunderstood. In Florida criminal law, entrapment is a defense to a crime, such as sale of drugs or drug trafficking, that can be used in limited circumstances. For instance, in a recent criminal case out of Florida, a defendant was charged with the crime of sale of marijuana (aka sale of cannabis). The defendant was not known to be a seller of marijuana but did use marijuana from time to time. The local police decided to use a friend of the defendant's to encourage the defendant to sell marijuana to him. The "friend", or confidential informant, was facing criminal drug charges himself and agreed to help the police in exchange for having his charges dropped. The friend contacted the defendant and asked the defendant if he could sell drugs to the friend. The defendant said he did not have any drugs and refused. The friend proceeded to call the defendant 18 times requesting to buy marijuana from him. Some of these calls were made late at night and some were to his work. Finally, the defendant agreed to buy marijuana from a dealer and split it with the friend. None of the initial contacts and communications were monitored by the police, just the ultimate exchange of the marijuana.

The defendant was then charged with sale of marijuana and later filed a motion to dismiss the charges claiming he was entrapped into selling the drugs. Entrapment is a defense that is not successful often, but it was applicable in this case. Generally, the defense of entrapment applies when a defendant is induced to commit a crime that he/she would not normally commit. If the defense is successfully presented, the charges are dismissed. In this case, the court focused on the conduct of law enforcement and the friend and found that the defendant was improperly entrapped into committing the drug sale. Some of the relevant factors in favor of the defense included: the police had no reason to believe the defendant was selling drugs before this incident, the "friend" had a lot of incentive to make the defendant agree to sell him drugs including payments per drug deal and the dismissal of his criminal charges and the police never supervised the interactions between the friend and the defendant.

While the defense of entrapment is not often successful, where the police find someone who is not predisposed to commit a crime and use excessive means to get the person to commit the crime, entrapment can be successfully asserted as a defense to have criminal charges dismissed.

As part of the war on drugs, the federal government initiated the National Youth Anti-Drug Media Campaign back in 1999 and spent approximately $1 billion on it. The study had the laudable goal of educating young people and trying to deter them from using drugs. However, a recent study has indicated that not only has the $1 billion campaign apparently failed, it may have made young people more likely to use drugs in some cases. The study involved interviewing thousands of young people to gauge their exposure and reactions to anti-drug advertisements. According to the report, 94% of the young people interviewed indicated that they were exposed to the campaign (about 2-3 times per week) but it often had no positive effect. In fact, the study showed that kids between the ages of 12 1/2 and 18 who saw the ads more often than others were more likely to indicate a desire to use drugs.

A recent poll indicated that a majority of Americans support eliminating minimum mandatory sentences for nonviolent crimes. A minimum mandatory sentence is a sentence that is prescribed by the state legislature or Congress that indicates the minimum, or lowest, sentence a person can get after being convicted of certain crimes. It takes the discretion away from the judge and the prosecutor who have more specific knowledge of the particular facts of the case. One argument in support of minimum mandatory sentences is that they equalize the treatment given to different people who are convicted of similar crimes. However, in taking away the discretion of prosecutors to recommend lower sentences and judges to issue lower sentences, the results are often unfair and fail to take into consideration the mitigating circumstances of each individual case. They also prevent judges from ordering particular defendants to serve a more appropriate and rehabilitative sentence, such as one incorporating treatment, and often limit judges to ordering a more inappropriate and costly sentence that only incorporates prison. This can be particularly true for nonviolent crimes such as drug crimes.

The recent report indicated that 78% of the people polled felt that judges, as opposed to legislators, should decide what sentence a particular criminal defendant should get after pleading guilty or no contest to a nonviolent crime or being found guilty of a nonviolent crime after a trial. This is consistent with the idea that the judges who know more about the specific cases and individuals are better equipped to decide what sentence is appropriate.

Recent reports have also indicated that minimum mandatory sentences have had no beneficial effect on drug use and abuse, drug addiction or drug trafficking. Often, these minimum mandatory sentences affect drug users and small time drug dealers as opposed to drug traffickers and suppliers. However, minimum mandatory sentences for nonviolent crimes like drug crimes have significantly increased state and federal costs and ensured that those funds have gone toward incarceration and inmate housing as opposed to drug treatment and prevention which might reduce the number of nonviolent drug offenders who go through the criminal justice system.

According to recent reports and articles, high schools across the United States are increasingly drug testing their students. Court cases that have addressed the legality of drug testing in high schools have resulted in opinions that allow high schools to drug test students as a prerequisite to joining school sports teams and extracurricular activity organizations. Students who refuse to consent to random drug testing can be banned from playing sports and participating in extracurricular activities.

President Bush instituted a policy to expand drug testing in high schools and approved millions of dollars towards that expansion. One way the federal government has encouraged high schools to drug test their students is to reward federal grant money to those schools that institute the drug testing policies. Reports indicate that 4-7% of all high schools in the U.S. have such random drug testing policies, and the numbers are increasing by about 100 per year.

Other than the obvious trust and right to privacy issues implicated by the high school drug testing policies, critics point to various studies (like this one) that indicate that such policies have no effect, or a negative effect, on drug use among high school students.