Articles Posted in Drug Crimes

In Florida, a person enjoys special protection from illegal searches and seizures in his/her home or other residence. At a minimum, this means that police officers and other agents of the state cannot just come into a person’s residence looking for evidence of criminal activity without a search warrant or valid consent from someone who is authorized to provide consent.  However, there are exceptions to this rule that would allow a police officer or other state agent to come into a person’s home.  If they find illegal items such as guns or drugs once they are legally inside the residence, a criminal investigation can initiate.

In a recent case south of Jacksonville, Florida, firefighters and police officers responded to a fire in the suspect’s residence.  Police and firefighters are permitted to enter someone’s home without consent or a search warrant to deal with an emergency health or hazard issue like a fire.  Of course, they must do so only for the purpose of assisting with the emergency and not for the purpose of looking for evidence of a crime.  However, if they see evidence of a crime while in one’s home for other purposes, they are not required to ignore it.  In this case, the firefighters entered and exited the house through the garage.  While doing so, they saw drug paraphernalia on a table in plain view in the garage.  After seeing the drug paraphernalia, the firefighters went back inside to make sure there was no additional fire threat and saw marijuana in a closet.  They informed the police who detained the defendant.  The police officers requested consent to search the house from the defendant.  When the police searched the house, they found more marijuana, guns and drug paraphernalia.  The defendant was arrested for possession of a firearm by a convicted felon and possession of marijuana with the intent to distribute.

The criminal defense lawyer filed a motion to suppress the evidence of the marijuana, guns and drug paraphernalia arguing that the police did not have a legal basis (a search warrant or valid consent before the defendant was detained) to search the house.  The court found that the search and seizure related to the marijuana and drug paraphernalia were legitimate.  The firefighters had a legal basis to be inside the house putting out the fire, and they saw the marijuana and drug paraphernalia in plain view while legally in the house.  They had a right to inform the police about those items.  On the other hand, the guns and items found after the defendant was detained and the police searched the house were suppressed.  At that point, the police were obligated to get a search warrant to search the house for additional evidence.  They never attempted to do so.  As a result, the defendant could be charged with possession of marijuana with intent to distribute and possession of drug paraphernalia, but the state could not go forward with any charges related to the guns due to the illegal search.

One sad fact about elections and political movements- they are expensive, and the costs seem to increase each year. As more and more states realize there is a medical benefit to marijuana and it is ridiculous to have it on the list of Schedule I drugs along with substances like heroin, more states are moving to legalize medical marijuana. Additionally, as more and more states realize what a complete waste of taxpayer money and government resources it is to have police arresting marijuana users and sellers and have prosecutors bring criminal cases against them, more states are seeking to legalize marijuana completely.

Marijuana legalization efforts are finding their ways on ballots all over the country. As a result, there are campaigns for and against marijuana legalization. Any such campaign needs to be well financed for success. Do you know one of the primary groups funding the effort to keep marijuana illegal and to keep taxpayer money going towards the arrest, prosecution and incarceration of marijuana users and sellers? Not surprisingly, it is the pharmaceutical industry. The reason is obvious. When people decide to treat their pain, anxiety, seizures, depression, PTSD and many other afflictions naturally with marijuana, they are not paying the exorbitant prices required to treat those same medical problems with synthetic drugs. And that results in less profit for pharmaceutical companies.

According to a new study published in HealthAffairs, in the seventeen states that have authorized medical marijuana as of 2013, fewer prescriptions for synthetic painkillers and other drugs were written. For instance, the average doctor in those states prescribed 265 fewer doses of anti-depressants, 486 fewer doses of seizure medication, 562 fewer doses of anti-anxiety medication and 1,826 fewer doses of painkillers each year. A more thorough summary of the results of the study can be found in this Washington Post article.

The federal government maintains a list of Schedule I drugs. According to the United States Drug Enforcement Agency, these are substances that they have determined have a high potential for abuse and have no accepted medical benefit. You do not have to look far down the list to see how much of a sham it is considering that heroin, bath salts and marijuana are on this same list. One of these is not like the others. We were hoping that the government would come to its senses and remove marijuana from the list, for several reasons, not the least of which is that it is prescribed for medicinal purposes all across the country now, by actual doctors who have learned about medicine in school and in practice. Unfortunately, as is often the case, we continue to wait for the government make a rational decision here that actually helps people.

So, marijuana remains on the list. And a new substance has been added. A substance called kratom is now a Schedule I drug according to the DEA. Kratom is a plant from Southeast Asia that people use to treat pain. Many people use it to avoid taking pain pills, which of course are perfectly fine to be sold en masse to people in the United States. The DEA has added kratom to the Schedule I drug list because of two substances found in the plant- mitragynine and 7-hydroxymitragynine. Kratom has similar effects to pain pills, which is why people use it instead of pain pills. Apparently, it is addictive, like pain pills, but unlike pain pills, it is not something that people overdose on, for the most part. The percentage of kratom related deaths compared to kratom use is extremely low, and significantly lower than overdoses and deaths relating to painkillers.

While decisions such as these create more laws and more government, they also serve to push people to more dangerous pharmaceutical products. For substances that are not particularly dangerous and/or are much less dangerous than prescription drugs used for similar purposes, these rules and laws and clearly counterproductive. However, given that these rules and laws increase government, increase the need for prisons and increase profits for pharmaceutical companies, you have to wonder what exactly the real purpose is.

While we certainly agree that having less government in our lives is a good thing, not every government agency shares our sentiments. Specifically, as it relates to the war on drugs, “small government conservative” politicians and law enforcement continue to expend limited resources and money to detain and arrest people far marijuana crimes. We are happy to see states come to their senses and legalize marijuana, but those legalization efforts have come with unfortunate ramifications for people from those states, even people who do not use the Cannabis plant.

Some police departments near legal marijuana states like Colorado are taking it upon themselves to conduct pretextual traffic stops based on the fact that the vehicle has a license plate from a state where marijuana is legal. For instance, when police officers or highway patrol see a vehicle on the highway driving a few miles per hour over the speed limit, they conduct a traffic stop for speeding if the vehicle has a license plate from a legal marijuana state. They might pull a Washington state driver over for changing lanes without using a blinker when they would never make such a traffic stop for someone else. This is referred to as license plate profiling.

One Colorado driver was not happy with this particular form of government excess and sued the Kansas Highway Patrol. The driver was pulled over because he had a temporary tag from Colorado that was allegedly difficult to read. There was nothing illegal about that, and the Kansas police gave him a warning. Thereafter, the Kansas police asked the driver if they could search his vehicle. He refused, but the police called a drug dog to the scene. The drug dog went around the vehicle, but no illegal drugs were found. The driver sued the Kansas Highway Patrol for violating his constitutional rights based on the illegal search and seizure.

In Florida and elsewhere, people have privacy rights in their vehicles. This means that the police generally cannot search a person’s vehicle for drugs or other evidence of criminal activity without consent from the owner or a search warrant. There are some exceptions to this general rule, but the police cannot just go into a person’s vehicle and search it in almost any situation.

Vehicles are more advanced now, and rather than having the traditional key that is placed into the lock to open a vehicle like a regular door, many cars come with key fobs that can open a vehicle by pressing a button. Additionally, many key fobs have a button that can be pressed that will cause the vehicle to honk so the owner can find it in a crowded parking lot.

In a possession of cocaine case south of Jacksonville, Florida, the defendant was arrested for a public disturbance. The police officer searched the defendant after the arrest. Police officers are allowed to search people immediately after an arrest to make sure a person going to jail does not have any weapons or anything else that would be a threat to the police officer or anyone else. When the police officer searched the defendant, he found a key fob. The police officer pressed a button on the key fob, and the defendant’s vehicle’s alarm went off. The officer went to the vehicle and saw a bag of cocaine on the seat. The officer was able to see the cocaine in the vehicle by looking through the window. The bag of cocaine was ultimately seized, and the defendant was arrested for possession of cocaine.

For any type of drug possession case, there are two ways the state can prove the crime in Florida. The easiest way is with an actual possession case. Actual possession is what it sounds like. If a person is holding the drugs or has drugs in his/her pocket or is actually possessing the drugs in any other way, that is an actual possession case that is likely easy to prove. However, even if a person does not have actual possession of the drugs, the state can still prove a drug possession case. The other form of possession is called constructive possession. This can be proven when the state establishes that the defendant knew of the drugs and had some ability to control the drugs. For instance, I have constructive possession of the sunglasses in my car even though they are nowhere near me. I know they are there, I have the keys to the car and I am the only one who drives my car.

Constructive possession cases get difficult for the state when there are multiple people who have access to the drugs. For instance, in a possession of Methamphetamine case near Jacksonville, Florida, police responded to a suspicious person call at a hotel. They went to one of the rooms and knocked on the door. A man and a woman were inside. The police got consent to search the room and found Methamphetamine in a pocket of a jacket in the room. It was not clear if the jacket belonged to the man, the woman or someone else. There was also a syringe presumably used to shoot the drugs in the room. The police asked the woman if her DNA would show up on the syringe, and she said yes. She was arrested for possession of Methamphetamine and possession of drug paraphernalia.

This case was ultimately thrown out. The state could not prove that the woman had knowledge and control over the Methamphetamine to the exclusion of the other guy in the room or anyone else who could have been in the room before the police arrived. The state lacked evidence that the jacket belonged to the woman. It could have belonged to the man or someone else. The state did not get any statements tying the woman to the Methamphetamine or the jacket. There was no other meaningful evidence connecting the woman to the Methamphetamine or the jacket that was sufficient to prove possession. In other words, the state did not have enough evidence to prove that any one person possessed the drugs as opposed to any other person. In these situations, constructive possession cases fail. If the police had obtained a statement from the woman or a witness or fingerprints or something indicating the jacket belonged to the woman, they would have had a stronger case. However, if multiple people have access to the drugs and the evidence does not specifically point to one of those people, the constructive possession case will likely fail.

Many drug cases in Florida are the result of police suspecting that a suspect has drugs and requesting that the defendant consent to a search of his/her vehicle, home, person or other belongings. People always have the right to refuse a police officer’s request to search, but people often allow the police to search anyway. When a person gives the police consent to search, as long as it is not under duress or after some search and seizure violation, that eliminates the need for the police to get a search warrant, have probable cause or rely on one of the few exceptions to the search warrant requirement. However, when a person gives the police consent to search, it is not a blank check for the police to search wherever they want and for whatever they want. A search by consent is limited to the area to which the consent applies and the nature of the item for which the police are looking.

As an example, in a possession of cocaine case south of Jacksonville, Florida, the police were investigating a robbery during which an I-phone was stolen. They tracked the I-phone to an apartment complex and started knocking on doors and requesting permission to come inside and search for it. The defendant in this case gave the police consent to search his apartment for the I-phone. The police went into the apartment and found the I-phone on a table. After that, they continued searching the apartment and found cocaine in a drawer. The defendant was arrested for possession of cocaine.

The criminal defense lawyer filed a motion to suppress the evidence of the cocaine arguing that the search conducted after the I-phone was located was illegal. The consent to search was limited to a search for the I-phone. Once the I-phone was located, the consent to search terminated. Therefore, without further evidence or additional consent, the police had no lawful basis to continue searching inside the apartment.

As criminal defense lawyers in the Jacksonville, Florida area, we still spend too much time and effort dealing with criminal cases and probation violations involving marijuana. It is a tremendous waste of taxpayer money and government resources, notwithstanding how completely ineffective the war on drugs continues to be. Some law enforcement agencies admit the obvious here and are not necessarily opposed to legalization efforts. Others are more stat oriented and realize how much easier drug arrests and prosecutions are than investigating and prosecuting more serious and complex crimes and continue to be opposed to legalization. Job security and taking the easy road are strong motivators.

In any case, the legalization movement forges ahead. Voters in California will be able to vote on marijuana legalization in November once again. They screwed it up last time, but most people agree that it is a matter of when, not if, this will pass in California. And once it takes hold in California and people see that civilization will survive, taxpayers will not be wasting as much money on the war on drugs carousel and money will be raised for positive causes through taxation (as in places like Washington, Colorado, Alaska and Oregon), legalization will continue to move forward in other states.

One problem facing legal marijuana businesses is that they do not have access to the same banking services afforded to other businesses. As a result, they cannot accept credit cards and other convenient forms of payment. They are primarily cash only businesses. This is the case because marijuana is still illegal under federal law and banks are not willing to risk federal criminal prosecution to serve the marijuana industry.

When a person is arrested for a crime in Florida, he/she is taken to the local jail. If he/she cannot make bond, he/she will remain there until the criminal case is resolved. Inmates in the local jail generally have phone privileges, but they are informed that each call is recorded. In many cases, particularly the more serious cases and cases that are likely to go to trial, prosecutors will retrieve the jail call recordings in the hopes of finding incriminating statements made by the defendant. While all inmates know these jail calls are recorded by the state, it is amazing how often inmates say things during these jail calls that impair their cases.

As criminal defense lawyers in Jacksonville, Florida, we always inform our clients never to talk about their cases during jail calls. The risk of doing so drastically outweighs any benefit of having such a recorded conversation.

For example, in a recent drug trafficking case near Jacksonville, Florida, the defendant was charged with conspiracy to traffic in various controlled substances by ordering them off of the internet from a foreign country. The police were able to obtain a printout of all of the drug orders the defendant made from his computer. They were able to access his computer because the defendant called a friend from jail and gave the friend his computer username and password and asked the friend to access the site he used to order the drugs. The state obtained a copy of this recorded phone call and used that information to get into the defendant’s computer.

It is pretty clear in Florida that a police officer cannot search a suspect for drugs or other evidence of illegal activity without a proper legal basis such as consent, probable cause or a valid arrest. A police officer might be able to do a quick pat down of a suspect if there is some evidence of criminal activity and that leads more evidence which can lead to a more thorough search. However, there has to be some specific information indicating criminal activity before a search can commence, unless the suspect agrees to a search. That applies to a person’s body and clothes as well as his/her possessions. it does not apply to property that has been abandoned under the law.

As an example, in a trafficking in cocaine case near Jacksonville, Florida, the suspect was stopped by police while driving. After it became clear the police officer was investigating the suspect for a drug related crime, the suspect threw a small bag out of the car window. The police officer probably did not have a legal basis to search the vehicle or the suspect at that point, but he walked around the car and retrieved the bag which contained cocaine. The suspect was arrested for trafficking in cocaine. The criminal defense lawyer filed a motion to suppress the bag of cocaine arguing that the police officer did not have probable cause to search the vehicle or the bag that came from the vehicle. The court disagreed. Once the suspect threw the bag away from the vehicle, under Florida law, that bag became abandoned, and the police have a right to search abandoned property.

This comes up in other situations as well. One common scenario occurs when the police believe a suspect is growing marijuana or otherwise manufacturing drugs in his/her home. The police will often go through a person’s trash outside to see if they can find discarded items that are commonly used to manufacture drugs. As long as the property is trash and the police do not have to enter a person’s property to retrieve it, this is normally considered abandoned property that police can search and seize without a search warrant. Of course, the police cannot go into your house or garage or otherwise trespass on to your property to take your trash, but if you leave a trashcan out on the curb for pickup, that is something the police can likely go through.

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