Articles Posted in Drug Crimes

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In Florida, the police are generally not allowed to enter a person’s home to search or investigate a crime without permission from the homeowner or a valid search warrant.  In some cases, the police cannot even go onto your property to search or investigate if the property is properly fenced and it is clear people are not welcome on the property.  The right to privacy in one’s home is one of the strongest constitutional protections.

However, for homes that are not adequately fenced in, the police are normally allowed to go up to anyone’s door, knock and ask questions.  As long as it appears that the general public would be allowed to go up to a door and knock, the police can too.  The residents can refuse to answer the door or they can refuse to answer any questions if they do open the door, but the police are welcome to try and knock and see if they can get someone to talk or even let them in.  If the residents do not cooperate, the police are not allowed to take the encounter any further, at least according to the law.  In practice, the police do not like to take no for an answer and may act accordingly.

In any case, if homeowners or other residents do not want the public or the police to be able to just walk up to their doors, knock and try to get information, they need to make it clear that their property is not open to the general public.  Fences and gates work well to do this.  Signs can as well, but the sign needs to be clear.  There was a case in Jacksonville, Florida where a person growing marijuana in his house had a “No Solicitors” sign on his door.  He had no gate or fence and no other signs.  The police walked up to his front door, knocked, smelled marijuana when the door was opened and subsequently obtained a search warrant.  The homeowner was arrested for growing marijuana.

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In a recent DUI case in Massachusetts, the state sought to prove that the defendant was impaired from marijuana while driving, thereby rendering him guilty of driving under the influence under that state’s DUI laws.  At the trial, the prosecutor had the arresting police officer testify that based on his observations of the defendant and the field sobriety exercises, the defendant was high on marijuana.  The defendant was convicted of DUI, and the criminal defense lawyer appealed.

The appeal was successful, and the DUI conviction was reversed.  The Massachusetts Supreme Judicial Court ruled that a police officer cannot legally testify that a defendant was high on marijuana based on observations and a field sobriety test.  The court noted that marijuana can have different effects on different people.  Also, the police officer was not an expert on marijuana and its varying effects on people (very few, if any, are; most seem to think they are).  As a result, the police officer’s testimony on that issue was improper to support a DUI conviction.

In just about every DUI case, the police officer is going to ask the suspect to submit to field sobriety exercises.  These are difficult balancing and related exercises performed under adverse circumstances.  The directions for each test can be confusing, and if a suspect says he/she does not understand them or needs for them to be repeated, the police officer will likely suggest that is evidence of impairment rather than the officer’s poor communication or explanation.  The tests are completely subjective, and the judge is a police officer who likely already believes the suspect is impaired, otherwise that judge would not have asked the suspect to perform them in the first place.  Sometimes the suspect’s performance is recorded on a police officer’s camera in his/her vehicle, but often it is not because many police officers do not have video cameras in their vehicles.  If the arrest is not recorded, whether the defendant did well on the field sobriety exercises or completely failed them is a matter of the police officer’s word against the defendant’s word.  However, because the effects of excessive alcohol intake are well known and fairly consistent among different people, police officers are allowed to testify that a defendant who allegedly failed the field sobriety tests was too impaired from alcohol to drive.  That is not the case with regard to marijuana, according to this recent Massachusetts case.

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The War on Drugs may be the most counter-productive, fiscally wasteful policy in the history of humankind.  Yet, it forges ahead, as it does little to effect any change other than to redirect taxpayer money away from beneficial programs and increase the size of government.  With regard to marijuana, it is difficult to understand why any police officer would support the War on Drugs.  Any encounter with a “suspect” has inherent risks to a police officer.  Why would any officer want to risk his/her well-being to determine whether or not someone has a plant, or the flower from a plant?

On the other hand, marijuana cases are easy.  A police officer smells the distinctive odor of cannabis, searches a person or a vehicle, finds the marijuana and makes an arrest.  No thought, no investigative skills, no legwork required.  And it counts as an arrest like any other for statistical purposes.  It is so much easier and quicker than tracking down reluctant witnesses in a shooting or figuring out where the money went in a fraud case.

A recent case out of Colorado will make it a little more difficult for the police to make the easy, simple marijuana arrests that do nothing to benefit the public despite political claims that more arrests translate to a safer community.  Many marijuana arrests are the result of a trained K-9 walking around a vehicle after a traffic stop and alerting to the odor of marijuana or some other illegal drug which then gives the police officer probable cause to search the vehicle.  If the police officer finds illegal drugs in the vehicle, the officer will likely arrest one or more of the occupants in the vehicle.  The entire case can be wrapped up in a matter of minutes.

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Pursuant to both the United States and the Florida Constitutions, people have a right to privacy in their homes.  This means that the police normally cannot come into a person’s home and search for drugs or other evidence of criminal activity without a valid search warrant or consent from someone who lives there.  This right to privacy protection applies to homeowners, people who rent apartments and other residents.  It also applies to less traditional residences like rooming houses.

In a recent possession of cocaine case near Jacksonville, Florida, the defendant was staying at a rooming house along with many other people.  The defendant had a room there and a key to the room.  He kept his belongings there.  The police showed up to the area while responding to an unrelated call.  The defendant had a pill bottle that he placed under the rooming house when he saw the police.  The police officer became suspicious, walked onto the property, reached under the house and pulled out the pill bottle.  He opened it and found cocaine inside.  The defendant was arrested for possession of cocaine.

The criminal defense lawyer filed a motion to suppress the evidence of the pill bottle and the cocaine.  He argued that the police officer did not have a search warrant or consent to come onto the property and take a pill bottle that was under the house.  The issue became whether the defendant had a reasonable expectation of privacy in a rooming house in which he was staying.  If he did, a police officer cannot come onto the property and take a pill bottle from underneath it that belonged to the defendant.

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In Florida, where marijuana remains illegal for now, the odor of marijuana is a fairly common basis that police use to further investigate or search a suspect.  It is also a basis that is often used to conduct a DUI investigation and make DUI arrests.  The odor of marijuana obviously gives police officers reason to believe that marijuana is present.  Under some circumstances, the police can use that information to search items or people.  However, it is not a blanket excuse to conduct a search or “pat down” in every situation.

In a possession of marijuana case near Jacksonville, Florida, the police received a tip that certain individuals were involved in drug activity at a warehouse.  The police responded and saw several individuals at the warehouse.  The police officer indicated he smelled a strong odor of marijuana coming from the group.  However, the police officer did not see any marijuana and did not see anyone smoking anything.  Based on the odor of marijuana, the police officer asked one of the individuals to come forward.  The suspect approached the police officer.  This led to a pat down of the suspect and ultimately a search during which the police officer found marijuana.  The suspect was arrested for possession of marijuana.

The criminal defense lawyer filed a motion to suppress the evidence of the marijuana arguing that the police officer illegally searched the defendant.  The appellate court agreed.  A general odor of marijuana coming from a group of people was not sufficient evidence to pat down one of the individuals or search him.  The police officer could have investigated with questions or requests for consent to search but was not yet legally authorized to pat down or search anyone without more specific evidence as to who was actually smoking the marijuana or had marijuana in his possession, if anyone.  Because the police officer went straight to a pat down and then a search without trying to get more specific evidence to identify the source of the odor, the marijuana evidence was suppressed and the possession of marijuana charge was later dismissed.

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More and more states are legalizing marijuana for medicinal purposes.  Of course, some states are also legalizing marijuana for recreational purposes.  It seems likely that marijuana will eventually become legal recreationally and medicinally everywhere, but it is going to be a long process.  In the meantime, people with medical problems can get help from marijuana only in the states that allow it.  Likewise, those people can only get a prescription or medical authorization for certain medical conditions.  In other words, where medical marijuana is legal, it is not just a matter of going to any doctor and asking for a prescription.  For instance, in Florida, a doctor has to successfully complete the required course and examination to be allowed to recommend marijuana to patients.  Additionally, only certain medical conditions legally qualify as medical conditions for which medical marijuana can be used as a treatment.

In Florida, there are eleven qualifying conditions for which medical marijuana can be recommended by a doctor.  These are all very serious medical conditions.  There is also a catchall category if a person has a medical condition that is serious and the doctor thinks the use of marijuana will do more good than harm.  This is somewhat of a ridiculous standard since marijuana does little, if any, harm while there are numerous medical conditions for which it can help.  But, we are still a long way from even a basic, unbiased collective understanding of marijuana so laws are written this way for now.

States with medical marijuana laws have different rules, but they are generally similar in that there are restrictions covering who can recommend marijuana and for what it can be recommended.  Fortunately, PTSD (post-traumatic stress disorder) is one of the medical conditions for which people can use medical marijuana in Florida.  However, it is not properly recognized as a qualifying condition in all medical marijuana states.

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In Florida, many criminal cases involving drugs and guns result from traffic stops.  A police officer will conduct a traffic stop and become suspicious or allegedly discover evidence of illegal activity and search the vehicle.  A search of the vehicle can be based on consent, which the driver or occupant never has to give.  Or, sometimes the police officer will call a drug K-9 to the scene that alerts to the odor of narcotics.  These searches can be questionable if the police officer keeps the vehicle and driver at the traffic stop for an unreasonable period of time while waiting for the drug dog.  There are other methods the police use to search vehicles after a traffic stop, but requesting consent is a common one.

Not every traffic stop involves a vehicle.  People in Florida need to be aware that the traffic laws apply to people on bicycles as well.  The police can stop a bicycle for running a stop sign or a red light just like a vehicle.  However, the initial stop of the vehicle, or bicycle, must be legally valid in order for any search or arrest thereafter to be valid.

In a recent possession of crack cocaine case south of Jacksonville, Florida, the suspect was riding his bike against traffic.  Florida law says a bike must ride with traffic, just like a car must.  Of course, people ride their bikes against traffic all of the time and the police ignore it, but in this case, they stopped the rider.  While issuing the rider a citation, the police officer asked him if he had any drugs or guns in his possession.  The rider admitted to having crack cocaine.  The police officer searched him, found the cocaine and arrested him for possession of crack cocaine.

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As readers of this blog know, we have written extensively on issues relating to marijuana and the legalization of marijuana.  It is a particularly relevant topic these days as more states legalize marijuana either recreationally, or as Florida did in the 2016 election, for medicinal purposes.  It is our belief that marijuana will ultimately be legal for all purposes in all states at some point.  However, getting there is going to be a long and arduous process.  Apparently, the election of Donald Trump and the appointment of Jeff Sessions as Attorney General will not do much to advance the legalization movement.

As stated, Florida did achieve a small victory in November as a majority of voters approved an initiative to legalize medical marijuana in Florida.  I decided to write this article to give people a little better understanding of what that means in Florida and to alert people that Shorstein, Lasnetski & Gihon is prepared to assist professionals who are seeking to enter the marijuana industry in Florida.  As Colorado, Washington, Oregon and other states have shown in a short period of time, the marijuana industry is going to be tremendous.

So what new rights does the Florida medical marijuana law confer on qualified people in Florida?  It allows people with certain medical conditions to obtain a certificate from a doctor that can be used to ultimately obtain marijuana to treat those conditions.  The law does not allow just anyone with any medical problem or aches and pains to go to any doctor and request a certificate for medical marijuana.  Only certain medical conditions qualify.  Those include: ALS, cancer, HIV/AIDS, Crohn’s disease, epilepsy, glaucoma, multiple sclerosis, Parkinson’s disease and PTSD.  As you can see, these are very serious medical conditions of which a patient must have a documented record to move forward with medical marijuana treatment.

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Jury-Room-300x225Most people have heard through school, interaction with the judicial system, television shows or otherwise that there is a constitutional right to  jury trial for people charged with a crime.  This is usually true, but it is not true in every case.  There is an exception for certain minor crimes where a defendant does not have a right to a jury trial and the judge decides whether or not the defendant is guilty of the crime.  That exception involves crimes where the defendant cannot be sentenced to jail or prison for more than six months.  In other words, if a defendant is charged with a minor crime and the maximum penalty is six months or less in jail, the defendant is not entitled to a jury trial.  The parties might agree to a jury trial or the judge might insist on a jury trial, but the law does not give the defendant a right to a jury trial if he/she wants one and the judge will not allow it.  Of course, this would only apply to minor misdemeanors, and it would never apply to felonies.  However, some people can be seriously impacted by any criminal conviction no matter how minor the charge or by any time in jail and may want a jury trial to protect his/her rights.

It is important to understand that a defendant is always entitled to a jury trial in a criminal case if the potential penalty for a conviction of the crime is more than six months.  It does not matter if the judge is not likely to sentence the defendant to more than six months in jail or even if the judge says he/she will not do it.  As long as the law allows for a sentence of more than six months in jail, the defendant can have a jury trial.

For instance, there was a case just south of Jacksonville, Duval County, Florida where a defendant was charged with possession of less than an ounce of marijuana.  This is a misdemeanor crime, but as ridiculous as it may seem, it carries a potential penalty of a year in jail.  The defendant wanted a jury trial, but the judge denied the request because he said he had no intention of sentencing the defendant to jail time if he was convicted of the crime.  The defendant had his trial with the judge as the decision maker (referred to as a bench trial), the judge found him guilty and the judge sentenced him to no time in jail.

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Police-Officer-with-Arrest-Warrant-illustration-300x261In Florida, the general rule is that the police cannot search a person’s property without a search warrant or specific consent from the owner of that property.  There are exceptions, of course, but a police search without a search warrant or consent is generally going to be illegal.  When the police arrest someone, they can always search that person because the police have a right to determine if the suspect has any weapons or evidence that can be destroyed on him/her.  However, that search is generally limited to the person and only after a valid arrest.  The police cannot go searching a person’s vehicle or home just because of an arrest.

In a recent drug case near Jacksonville, Florida, the police had an outstanding warrant for the defendant and received a tip that he was at a particular residence.  They located the suspect and arrested him in the front yard.  The police then walked around to the back of the residence and looked through a window where they saw guns and illegal drugs inside the house.  They used this information to obtain a search warrant to search the house and seize the guns and marijuana.

The criminal defense lawyer filed a motion to suppress the evidence of the guns and marijuana arguing that the police did not have a legal basis to walk to the back of the defendant’s property to look through the window.  Police cannot walk into a person’s home to search without a search warrant or consent, and this also applies to what is called the curtilage of a home, which is the area of land surrounding a residence including any closed structures.  In this case, the area next to and behind the house was considered the curtilage.  It is often considered the area adjacent to the home where the public is not normally expected to go.  For instance, a member of the public might walk up a person’s driveway to knock on the front door, but he/she is not likely to walk around a house and look through windows on the side or back of the house.