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Articles Posted in Drug Crimes

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The war on drugs has been, and continues to be, one of the most ineffective, expensive and damaging government policies in American history. And as it relates to marijuana, it has not only been a complete waste of money and resources, but it has been an easy, if often illegal, basis for police officers to circumvent 14th Amendment protections against unreasonable searches and seizures allowing police officers to invade privacy and property based on the alleged “odor of marijuana.” So often, police officers claim to smell marijuana, which leads to a prolonged search only to find that there is none. In court, they can simply argue that the defendant must have marijuana prior to the search, and the 14th Amendment protections evaporate. Essentially, the “odor of marijuana” can become a blanket substitute for the 14th Amendment prohibition against unreasonable searches and seizures.

Some progress has been made in this area as states have legalized marijuana recreationally. Minorities are still being arrested for marijuana at much greater rates, so systemic problems remain in force, but legalizing marijuana has provided some protection against these unnecessary and counterproductive arrests and searches.

At the federal level and in states like Florida, cannabis is not fully legal, but hemp is. While the legality of hemp certainly has not received the same kind of praise and publicity that marijuana legalization gets, it has created an interesting dynamic when it comes to police encounters and searches and seizures. Before hemp legalization, police officers would stop a vehicle or approach a person in certain areas, claim to smell marijuana and then assume full legal authorization to search that person’s property. Now, that is not so clear. First, we need to understand what hemp is under the federal and state laws. Hemp is basically the same as the cannabis plant but with less than 0.3% THC content. So, legal hemp looks, smells, feels and tastes just like illegal marijuana. A chemical test to determine the THC content of the substance is required to distinguish legal hemp from illegal marijuana. This is critical because the naked eye, mouth, nose or hand cannot tell the difference between what is legal (hemp) and what is illegal (marijuana). As a result, police officers cannot just search people or vehicles based solely on the “odor of marijuana” because what they have always assumed was marijuana might be hemp, which is now legal. And police cannot search people or property based on the assumption of illegal activity.

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A lot of drug possession and trafficking of drug cases in Florida involve police finding drugs not on the defendant but near him or even somewhere far away from the defendant. There are two types of possession cases in Florida that can be the basis of a drug possession or trafficking conviction. Actual possession is usually simple. If a person is carrying the drugs or has them on his person, that is usually enough to prove actual possession. But, Florida law does not require the drugs to actually be on the person for a drug possession conviction. Constructive possession can also result in a criminal conviction if the state can show that the defendant knew of the existence of the drugs and had some ability to control them. All such cases will depend on the specific circumstances and what each side can prove.

In a recent drug possession case west of Jacksonville, Florida,  police stopped the defendant for driving with a suspended license. The defendant was the driver and owner of the vehicle, and there was one front seat passenger. The police, who surely had prior information about the defendant, had a drug dog ready to walk around the vehicle. The drug dog alerted to the odor of illegal drugs, and the police searched the vehicle. They found a safe under some clothes in the backseat. The police forced open the safe and found various drugs inside, including heroin and methamphetamine. They also found receipts, bills and other documents in the name of the defendant in the safe. He was charged with various drug possession charges.

At the trial, the criminal defense lawyer filed a motion for judgment of acquittal arguing that the state could not prove the defendant was in actual or constructive possession of the drugs since they were locked in a safe in the backseat. The legal standard is whether the state produced competent and substantial evidence that the defendant was guilty. The court found that the state presented sufficient evidence because the drugs were in a car owned and driven by the defendant and had papers inside the safe belonging to him. Apparently, the defendant did not have a valid explanation for how his belongings got into the safe with the drugs without him knowing the drugs were there. While there was a passenger in the car that the defendant could blame for the drugs, neither the car nor any items in the safe with the drugs belonged to that passenger. As a result, that defense was not found to be credible. The conviction against defendant was upheld.

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One reason police are often against the full legalization of marijuana is that marijuana illegality gives police officer perhaps the easiest excuse to search people and vehicles. Likewise, marijuana arrests are about as easy as it gets for police officers. They smell marijuana, they search and they arrest. No real work, thought, diligence or investigation required. And while marijuana arrests obviously do nothing to make anyone safer and needlessly cost time, money and resources, they count as arrests on the stat sheet all the same. And I suppose it beats having to investigate real crimes that actually have real victims.

Florida has been slow to work its way into the 21st century and legalize marijuana, but at least medical marijuana is legal. Now, some people (those with a valid medical marijuana card) whose vehicle or other property may smell like marijuana may not be doing anything illegal.  Since that is the case, should police still be allowed to stop and search people based on the odor of marijuana when marijuana is not necessarily illegal depending on who has it?

In a recent case near Jacksonville, Florida, police officers stopped a vehicle at night for a headlight violation. They approached the vehicle and smelled burnt marijuana. They searched the vehicle and arrested the suspect for possession of cannabis. The criminal defense lawyer filed a motion to suppress the evidence of marijuana arguing that the police unlawfully searched the vehicle because the odor of marijuana does not necessarily indicate illegal activity.

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In Florida, it is pretty clear that the sale of an illegal drug is a felony crime. Selling some drugs is more serious than others. While police and prosecutors continue to waste time and taxpayer money arresting and charging people with selling marijuana, at least that crime is not considered very serious, depending on the quantity. However, selling heroin or fentanyl is considered a serious crime which often carries serious jail or prison time. The more that is sold, the more serious the crime, generally.

Normally, if a person sells one drug amount to a person one time, that is a single crime that carries a single sentence. Multiple sales, even to the same person, can each be considered separate crimes if they are separated by a sufficient time period.  Can a single sale of one substance to a single person be considered two crimes?

In a recent case south of Jacksonville, Florida, the defendant sold a single drug quantity he believed to be heroin to an undercover police officer. He was arrested on one count of sale of heroin, which is a second degree felony that carries a maximum sentence of 15 yeas in prison. In drug cases where a defendant requests a lab report or where the case may go to trial, the state will send the drug sample to the crime lab to be tested for composition and weight. In this case, the lab report showed that the substance contained heroin and fentanyl. As a result, the state charged the defendant with two separate counts- sale of heroin and sale of fentanyl although the defendant just sold one substance one time. Both charges are second degree felonies and fall under the same Florida statute.

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In Florida, one exception to a search warrant requirement is consent to search from the owner of the property or someone in possession of the property who appears to have authority to give consent.  Police can generally walk up to any person, vehicle or residence and ask to search without a warrant and without probable cause. If that property owner agrees, the police are free to search.  However, there are limitations, and people should always understand they have a constitutional right to refuse any police request to search one’s property.

In this case, police officers drove to the defendant’s property in a rural area south of Jacksonville, Florida. They went through an open fence and ignored the “No trespassing” signs.  They knocked on the front door, but no one answered.  The officers then got back into their vehicle and kept driving on the property to a barn where they found marijuana. They ultimately arrested the property owner for various marijuana charges.

The criminal defense attorney filed a motion to suppress all of the marijuana evidence because the police did not have a right to come onto their property and search it.  At the hearing, the police officers testified they previously had permission to enter the property. It was determined during the hearing that the permission was given three years earlier by the previous property owner.

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People ship drugs to other parts of the country.  They do it using the US Postal Service and Federal Express and UPS and any other delivery service. They do it by shipping to a location where nobody lives expecting someone on the other end to pick it up as soon as the package arrives. Other times, they ship it to a known address but address the package to a fake name so the person who receives it can claim ignorance if the police find out. And there are other methods people use to send illegal drugs to other people. The police catch many of these packages.  Many of these packages have similar appearances and methods of shipment.  Law enforcement also use drug dogs at the shipping facilities to smell packages (particularly those from states where marijuana is now legal). When they find a package that contains illegal drugs, they will attempt a controlled delivery which often consists of a police officer pretending to be a deliveryman and delivering the package to the listed address.  Once a person at the address accepts the package, police will come in and make arrests.

In a recent case near Jacksonville, Florida, the police discovered a suspicious package at UPS and decided to investigate. They learned that it was addressed to a fake person. They got a search warrant to open the package and found marijuana inside. One of the police officers disguised himself as a UPS driver and attempted to deliver the package, but no one answered the door. Later, the police knocked on the door to try and interview the resident.  As they did so, an individual drove up to the residence. The police detained that individual and asked him questions to see if he was involved with the marijuana package. The police brought a drug dog to the scene and had the dog walk around the person’s vehicle. After alerting to that vehicle, the police searched it and found marijuana and other drugs inside.

The criminal defense lawyer filed a motion to suppress the evidence of the drugs found in the vehicle because the police did not have a legal basis to detain and keep the defendant at the scene. While the defendant did ultimately consent to a search of his car, it was after the detention which the criminal defense attorney argued was illegal. Consent is not voluntary if it is the result of an illegal detention.

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In Florida, and other states based on certain United States Supreme Court cases,, the police used to have broad authority to search a person’s property after an arrest.  The police used to be able to search the person, a nearby vehicle, possibly the person’s residence and any items reasonably close a person who was arrested.  For instance, if a person was arrested after a traffic stop, the police could search the vehicle and any items in the vehicle such as purses, backpacks, luggage, etc.  These searches were called searches incident to a lawful arrest and essentially gave the police in Florida the right to search anything that might belong to the person who was arrested if that thing was near the person at the time of the arrest.

The legal theory for such broad search powers was that the police had a right to search the area near where a person was arrested to make sure there were no weapons that the arrestee could use to harm the police officer or evidence that the arrestee could destroy.  The obvious flaw in this legal analysis was that when a person is arrested, that person is handcuffed and placed in the police vehicle.  That person obviously has no ability to go to his car or into his backpack in his car and grab a weapon that could be used to harm the officer.  He also has no ability to destroy evidence while sitting handcuffed in the police car.  As a result, the law was changed by judicial decision several years ago.

Now, the law allows the police to search a person who is arrested since an arrestee does have access to potentially dangerous items in his pocket or elsewhere in his immediate possession.  But, that authority does not extend to items that are outside of the arrestee’s control or ability to access.  Therefore, once the suspect has been arrested and handcuffed, the police can only search things that the suspect might be able to access, which is essentially nothing other than what might be in his pockets.

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As many people know, the federal government classifies certain drugs according to a schedule.  In fact, the Drug Enforcement Agency is permitted by statute to make the rules which determine in which class a particular drug belongs.  Criminal statutes and penalties are enacted based on those classifications.   Schedule I drugs are considered the most dangerous and the most addictive.  Examples of Schedule I drugs are heroin and LSD.  Schedule V drugs are the least dangerous.  An example of a Schedule V drug is the cough medicine Robitussin.

Despite Schedule I including the most dangerous and addictive drugs and substances that have no accepted medical value, cannabis, or marijuana, is still considered a Schedule I drug.  Basically, the federal government is saying  marijuana is just as bad as heroin and bath salts.  Also, despite the fact that doctors all over the country, and all over Florida, are prescribing marijuana to patients to treat a variety of medical conditions, the federal government is saying that marijuana has no accepted medical use. By definition, in order to be a Schedule I drug, a substance must have no accepted medical value.

This kind of government ignorance and corruption would be silly if it wasn’t resulting in people going to prison for having marijuana.  In some marijuana cases, criminal defense lawyers are making the legal argument that it is not constitutional to punish a person for having a Schedule I drug that has no medical use when we are dealing with a substance that medical doctors all over Florida and the country (and all over the world) are prescribing to patients for medicinal purposes.  That seems like an obvious and logical argument that cannot lose in any tribunal where logic and reason are considered useful tools for decision making.  However, anyone who believes logic should win the day underestimates just how backwards our government is, and just how addicted government officials are on campaign donations from billion dollar pharmaceutical companies.  Financial influence is a formidable opponent of reason and justice.

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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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