Drug Crimes

Police Search With Consent Became Illegal When it Went Too Far in Florida Drug Case

Published on: August 5, 2016 | by Lasnetski Gihon Law

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.

Inching Closer to the Legalization of Marijuana

Published on: June 30, 2016 | by Lasnetski Gihon Law

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.

Recorded Jail Call Leads to Drug Trafficking Conviction for Florida Inmate

Published on: May 23, 2016 | by Lasnetski Gihon Law

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.

If a Suspect in Florida Throws Evidence Away, it Becomes Abandoned Property and Fair Game for Police

Published on: April 28, 2016 | by Lasnetski Gihon Law

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.

In States with Medical Marijuana, Deaths from Painkillers are Down, and Why Marijuana is Still Illegal

Published on: February 24, 2016 | by Lasnetski Gihon Law

As many people are aware, marijuana is slowly becoming more acceptable, and legal, around the country. Ironically, and contradictorily, states that consider themselves “conservative”, as in for smaller government, seem to be the most reluctant to get the government out of people’s right to possess and use this plant. But, that is how upside down politics are these days. More and more evidence shows that marijuana is not the evil drug that the government and pharmaceutical lobby financed politicians want people to believe. As a result, some states are entering the 21st century and not prosecuting and incarcerating people who choose to use the cannabis plant.

One obvious reason that some states refuse to legalize marijuana, either for medicinal or recreational purposes, is because some companies have a strong financial interest in keeping marijuana illegal. It costs a lot of money to win elections these days, and those political positions are highly coveted. In many elected position, you do not work very hard, you get a great salary, you get great benefit and you get an outstanding retirement package. Believe it or not, government has voted for government to be compensated well. So, people really want these government jobs, and they need to raise the exorbitant amount of money it takes to win those jobs. The pharmaceutical lobby is one incredibly rich group that is willing to finance these campaigns and win those sweet jobs for candidates. According to Opensecrets.org, the pharmaceutical lobby contributed more than $235 million to politicians in 2015. Of course, anyone who knows anything about money knows that people or corporations do not expend that kind of money without expecting something in return. In the pharmaceutical lobby’s case, that return comes in the form of people using their products instead of a more natural, less harmful alternative. Like marijuana. Keeping marijuana illegal and ostracized is critical to ensure those continued profits for drug companies.

A recent article from Newsweek suggests that when marijuana becomes legal and more accessible, more people use marijuana in favor of processed drugs. As a result, it seems as if fewer people die. Positive statistics like this do not pay for expensive campaigns so who knows what effect reports like this will have. But, for the rest of us, it is instructive to understand this dynamic. The article mentions that deaths from overdoses from opioids have tripled since 1991. However, in states where marijuana has been legalized, at least for medicinal purposes, that dangerous trend has reversed. In those states, 25% fewer people have died from opioid overdoses from 1999 to 2010. That is a 300% increase in deaths versus a 25% decline. Those numbers are hard to ignore. One always has to be careful distinguishing between correlation and causation, but there are some things we know. People do not die from marijuana overdoses. People do die from pain pill overdoses. Using marijuana to treat various medical conditions can eliminate the need for painkillers or at least allow a person to reduce their dosage of, and reliance on, painkillers.

A Good Example of a Bad Constructive Drug Possession Case in Florida

Published on: February 18, 2016 | by Lasnetski Gihon Law

In Florida, drug possession cases can be proven in two different ways. A person can be found guilty of a drug charge based on actual possession. Actual possession of a drug is what it sounds like. A person is holding the drugs or has them in his/her pocket or some other container actually in his/her possession. However, the state in Florida does not need to prove actual possession. A person can also be found guilty of drug possession based on constructive possession. This can occur when drugs are found near a person or in a place controlled by a person even if the person is not present, like his/her home or vehicle. In order to prove constructive possession of drugs, the state needs to prove more than just proximity to the drugs. The state has to prove that the defendant knew the drugs were present and had custody or control over the drugs- i.e. the ability to exercise some sort of ownership interest or control over the drugs.

A drug case south of Jacksonville, Florida,illustrated an example where the state could not prove that the defendant was the one who constructively possessed the drugs. Constructive possession of drugs often gets harder to prove the more people are near the drugs or have access to them. These kinds of drug possession cases are not uncommon. In this case, the police were investigating a separate crime and pulled the defendant over in a vehicle. The vehicle belonged to someone else. There was also a passenger in the vehicle. The police searched the vehicle and found a duffel bag in the backseat. The duffel bag contained a smaller bag of cocaine and marijuana. The duffel bag also contained items that belonged to the defendant, the passenger and some other person. Only the defendant was arrested for possession of marijuana and possession of cocaine.

At the trial, the criminal defense lawyer moved for a directed verdict of acquittal, which basically asks the judge to circumvent the jury and find the defendant not guilty based on insufficient evidence of constructive possession. The criminal defense attorney argued that the state could not prove that the defendant had custody and control of the duffel bag to constitute constructive possession. While there was evidence that the defendant knew about the bag and had some control over it since it was in the car he was driving and had some of his belongings in it, there was a joint possession issue. That is, there was equal evidence that the bag belonged to the passenger or the other person whose items were also in the bag. The state cannot prove constructive possession of drugs based on this circumstantial evidence when the evidence establishes that one or more other people appear to have an equal ownership or possessive interest in the drugs. There was nothing that set apart the defendant’s ability to have custody and control over the bag from the other two people involved. Therefore, the convictions for possession of cocaine and possession of marijuana were reversed.

Florida Police Officer Did Not Have a Right to Search Vehicle of Suspect on Probation

Published on: February 15, 2016 | by Lasnetski Gihon Law

In Florida, a person who is on probation for a crime does lose some of his/her constitutional rights. For instance, any other person has the right to be free from unreasonable searches and seizures in his/her home. This means that a police officer or other agent of the state cannot normally enter a person’s home without valid consent from the owner or a search warrant. When a person commits a crime and goes on probation, his/her constitutional rights are often compromised. For instance, a condition of probation may be that the defendant’s probation officer is allowed to show up to the defendant’s house unannounced and come inside to search. The idea is that a probation officer is allowed to take steps to make sure a person on probation is following the conditions of probation, and a person who commits a crime and goes on probation forfeits some of his/her rights to privacy during the probationary period.

However, this does not extend to all of a probationers’ property and all agents of the state. A police officer does not have free reign to search the property of a person who is on probation.

In a recent drug case near Jacksonville, Florida, the defendant was pulled over for a traffic violation. When the police officer ran his information, he found that the driver was on probation for a drug trafficking charge. When the police officer returned to the defendant’s vehicle, he asked him if he could search his vehicle. The police officer still had the defendant’s driver’s license and had not indicated he was free to leave. The defendant was under the impression that he was required to allow the police officer to search his vehicle because he was on probation. He said that to the police officer, and the police officer allowed the defendant to believe that. The police officer searched the vehicle and found Methamphetamine inside. The defendant was arrested and charged with possession of Methamphetamine.

Can the Police in Florida Search My Garbage and Other Items I Throw Away?

Published on: January 13, 2016 | by Lasnetski Gihon Law

In Florida, the police are limited in what and when they can search items that belong to you. Obvious examples include your house, your vehicle and your person. The police are not permitted to search any of those things unless they have a search warrant, they have consent from someone authorized to give consent to search or in other limited circumstances. A criminal defense lawyer can file a motion to suppress evidence that is obtained as a result of an illegal search in a criminal case and get it thrown out of court.

But what if the police want to search something that used to belong to you but has been abandoned or thrown away? Especially in drug cases, the police will often search a person’s trash without consent or a search warrant. The police will often look for evidence of drug activity like drug packaging materials or materials used to make drugs like in Methamphetamine cases.

In a recent criminal case near Jacksonville, Florida, the police received a call that the suspect placed a suspicious box in a trash can outside of his home. The police arrived and found the box in the trash can, which was in the street a couple hundred feet from the home. The police asked people in the area, and no one claimed ownership of the box. The police took the box to their police station and x-rayed it. They saw that it had a gun inside. When they opened the box, they found the gun and cocaine. The suspect who was identified as having placed the box in the trashcan was arrested for possession of cocaine and possession of a firearm by a convicted felon.

Does the Legalization of Marijuana Increase Marijuana Use Among Teens?

Published on: December 22, 2015 | by Lasnetski Gihon Law

In a word, no. The University of Michigan conducts an annual survey regarding drug use among teenagers. The special interests against marijuana legalization, i.e. pharmaceutical companies that want people using their processed drugs rather than the naturally growing marijuana plant, along with the politicians to whom those special interests pay a lot of money, would have us believe that if we legalize marijuana, teenagers and everyone else will be smoking marijuana for breakfast, lunch and dinner. However, this survey (and other studies) show us that is not the case. The survey indicated that there was no significant increase in marijuana use in the states where it is now legal. In fact, after rising for several years, marijuana use has remained fairly steady since 2010, according to the annual surveys.

As most people know, marijuana is now legal in Colorado, Oregon, Alaska, Washington and Washington, DC. Marijuana use among teenagers stabilized before marijuana legalization and has remained stable since. Interestingly, the percentage of people who view marijuana as a serious health risk has declined dramatically. While it is good to see a rational view of marijuana, it still has not increased the number of users.

One other predictable and favorable consequence of marijuana legalization: teen use of actually harmful substances like alcohol, cigarettes, ecstasy and synthetic marijuana is down.

The Inevitable Discovery Rule in Florida

Published on: December 11, 2015 | by Lasnetski Gihon Law

There is a search and seizure rule in Florida that many people are not aware of that can be quite onerous, depending on how it is applied. It is called the inevitable discovery rule. To understand the rule, it is important to first understand your rights. The Constitution guarantees a person the right to privacy in one’s home, vehicle and other property. This means the police cannot search a person’s property without consent to search, a valid search warrant or some other narrow exception. If the police do search a person’s property without authorization, any incriminating evidence can be thrown out of court with a motion to suppress.

However, the inevitable discovery rule gives the state an avenue to save their case even when the search is illegal. Basically, it says that even if the police conduct an illegal search and find incriminating evidence like illegal drugs, the state can still use the evidence against the defendant if the police would have discovered the evidence anyway by some other legal means. This rule has been applied to save a lot of criminal cases when the search was illegal.

However, there are limitations to the inevitable discovery rule in Florida. For instance, the rule only applies if there is a legitimate investigation taking place when the illegal search is conducted. For instance, in a case near Jacksonville, Florida, a guest in the defendant’s home saw that he was growing marijuana plants in the home and called the police. Several police officers came to the defendant’s home wearing masks with guns drawn and obtained consent to search the house. They found the marijuana plants inside and arrested the defendant for cultivation of marijuana.