Drug Crimes

Florida Man’s Detained After Driving to House Being Searched for Drugs

Published on: October 26, 2015 | by Lasnetski Gihon Law

In Florida, the police generally cannot search a person’s vehicle without consent, a search warrant or specific indications of illegal activity occurring within the vehicle. However, police can often come up with certain observations that allow them to search a person’s vehicle under certain circumstances.

In a recent case near Jacksonville, Florida, the police were executing a search warrant at the home of a suspected marijuana dealer. During the search, the suspect drove up to the house for a visit. He did not live there and had no apparent connection to the house. A police officer approached the suspect and started asking him questions about whether he had any weapons or drugs. The suspect did not answer so the police officer told him to get out of the vehicle. After some more questions, the suspect admitted to having some Oxycodone pills without a prescription, and his car was searched. He was then arrested for possession of pills without a prescription.

A police officer is free to ask anyone questions in that situation, but once the police officer tells the suspect to exit his vehicle, the encounter becomes a detention. The police officer is only justified to tell the suspect to exit the vehicle if there is some indication of illegal activity or there is a risk to the officer’s safety. In this case, the police officer relied on the officer safety risk angle. After the criminal defense lawyer filed a motion to suppress the evidence of the drugs found in the car, he testified that the suspect was acting nervously, was not properly answering his questions and was hiding his hands. Based on that, he detained the suspect because he was worried about his safety. The court agreed and justified the search.

Marijuana Case in Florida Thrown Out When Police Don’t Make Effort to Preserve Evidence

Published on: September 18, 2015 | by Lasnetski Gihon Law

As most people with a basic understanding of the criminal justice system understand, the state always has the burden of proof in a criminal case. That means the state is obligated to prove, with evidence, that the defendant committed the crime with which he/she is charged. A person is always considered innocent until the state meets that burden. Of course, if the state never produces sufficient, convincing evidence to prove guilt beyond a reasonable doubt, the defendant remains innocent. Perhaps it is human nature for people to assume someone is guilty based on rushed and poorly researched media articles or even just an arrest on serious charges, but that is not how the system is supposed to work. Evidence controls.

In a recent possession of marijuana case near Jacksonville, Florida, the state failed to preserve and produce evidence of the defendant’s guilt, and the marijuana charge was thrown out. This revolved around an incident that took place while a local station was filming a reality show about police officers. The local station had an agreement that allowed them to ride with the police to film the show.

The police officers indicated they saw the defendant smoking a marijuana cigarette, detained him and found more marijuana in his picket. The suspect claimed he was just smoking a cigar with tobacco and argued that the video would support his claim. The criminal defense lawyer attempted to obtain the footage of the encounter from the TV station, but they refused to provide it unless the defendant signed a waiver allowing them to show the incident on TV. He refused, and the station ultimately destroyed the video.

Defendant in Florida May Not Be Charged With Drug Possession if Drugs Found During Overdose

Published on: June 15, 2015 | by Lasnetski Gihon Law

There is a law in Florida that is not well known that protects people from drug charges if police find drugs while assisting someone during a medical emergency due to a drug overdose. A Florida statute provides immunity from prosecution for a person who is experiencing a drug overdose and is in need of medical attention if the police find evidence of the drug possession crime as a result of the overdose and medical attention.

For instance, suppose a person uses a drug like cocaine or heroin and becomes seriously ill so that someone calls 911 for medical attention and the police arrive. If, in the process of assisting the person, the police find cocaine or heroin or any other evidence of illegal drugs, this law protects the person from arrest for the drug charge. If the police officer, who may not be familiar with this law in Florida, does decide to arrest the person, the criminal defense lawyer can file a motion to dismiss the drug charge based on this immunity. The police can take a person into protective custody who needs emergency medical attention due to drug abuse. However, this cannot lead to criminal prosecution if drugs were found during the medical treatment.

This protection does not help everyone who is feeling the effects of drug abuse. If a person is clearly impaired from drugs and someone calls 911 for an ambulance, that does not automatically trigger the immunity from prosecution. Ultimately, it would be up to a judge to decide, but the criminal defense lawyer would have to establish that the defendant was more than just high or intoxicated. The criminal defense attorney would have to establish that the defendant was experiencing a serious medical emergency when the evidence of the drugs was found. Presumably, this evidence would be presented by way of medical records and witness testimony, if applicable.

Police in Florida Cannot Enter Secured Property for Investigation Based on Anonymous Drug Tip

Published on: May 30, 2015 | by Lasnetski Gihon Law

The right to privacy in one’s home and on one’s property is one of the strongest rights in the Constitution. The police are not allowed to come into one’s home and search or ask questions without consent from the resident or a valid search warrant. The fact that the police in Florida have an anonymous tip that a resident is growing marijuana plants or engaged in any other illegal activity does not change that.

However, if the police do get an anonymous tip of illegal activity and it is not sufficient for a search warrant, the police can normally walk up to the suspect’s front door, knock and see if the occupant(s) will answer questions or let the police in to investigate. In this way, the police are entitled to the same access as any of member of the public who can walk up to a person’s door and knock.

One exception is if the front door is not easily accessible. For instance, if there is a fence surrounding the property or the home is otherwise enclosed or secluded in such a way that it is apparent that the occupant(s) does not want people to be able to freely walk up to the door, the police cannot go through a fence or intrude onto the property without consent or a search warrant.

Assumptions and Police Officer’s Super Human Eyesight Are not Sufficient for a Search and Seizure in Florida

Published on: May 10, 2015 | by Lasnetski Gihon Law

In Florida, the police are not allowed to stop a person for a drug or other criminal investigation without reasonable suspicion that the person is engaging, just engaged or is about to engage in criminal activity. This reasonable suspicion standard requires more than just assumptions. There must be some specific evidence that reasonably leads a police officer to believe there is criminal activity afoot.

In a recent case south of Jacksonville, Florida, the police officer was at a gas station in the evening as it was getting dark and observed the suspect enter into a hand to hand transaction with another person in the parking lot. The police officer was about 30 feet away, but he said he could see the suspect give the other person a rolled up baggie. The police officer assumed it was marijuana based on the neighborhood and the nature and short duration of the transaction. As a result, the police officer stopped the suspect, searched him and found marijuana in his pocket. He was arrested for possession of marijuana.

The criminal defense attorney filed a motion to suppress the marijuana evidence arguing that the police officer did not have a reasonable basis to stop the defendant. The judge agreed. While the police officer was correct that the transaction did involve marijuana, learning this after the fact cannot be a basis for a prior search. The police officer must be able to point to specific facts indicating criminal activity before he/she stops a suspect. In this case, the police officer was too far away to see or smell marijuana. He was just relying on assumptions based on limited information. Short, hand to hand transactions in questionable neighborhoods may mean drug deals, but they also might mean something else. That alone is not sufficient to permit a search and seizure. Because the police officer did not rely on sufficient facts indicating criminal activity, the stop was unlawful, and the resulting search was unlawful. As a result, the marijuana charge was thrown out.

President Obama’s Proposed Budget Allocates More Money to the War on Drugs

Published on: February 5, 2015 | by Lasnetski Gihon Law

While there seems to be some growing recognition that the war on drugs is criminally wasteful and counterproductive, with more states legalizing marijuana either for recreational purposes and/or medicinal purposes, clearly we still have a long way to go before we approach a reasonable and fiscally responsible state of affairs. The federal government has taken some limited steps to reign in the massive war on drugs. For example, the federal sentencing guidelines did partially rectify the extreme disparity between prison guideline sentences for crack cocaine cases versus powder cocaine cases. The federal government also does not appear to be interfering when states legalize marijuana, at least not as often as it did before.

However, much of the rhetoric from the federal government about the ineffective war on drugs and tremendous amount of money wasted on it is just that- rhetoric. President Obama recently released his proposed budget for fiscal year 2016, according to a recent article. Unfortunately, more and more money is being allocated to the war on drugs and the federal prison system. The budget proposes $3.7 billion for the Bureau of Prisons (an increase of $187 million), $2.46 billion for the Drug Enforcement Agency (an increase of $90 million) and $293 million for the Office of Justice Programs (an increase of $50 million). That last allocation is a significant 20% increase that goes towards drug tasks forces that are specifically designed to perpetuate the war on drugs and feed the bloated and expensive prison system.

Of course, as the article notes, this is just a proposed budget. Congress can make all sorts of changes to it. These war on drug expenditures can get better or, more likely, worse. In any case, it is hard to take the federal government seriously when it negatively mentions the war on drugs and then proposes hundreds of millions of dollars in increases to make more drug cases. In this case, as usual, money talks.

Court May Decide Classifying Marijuana as a Schedule I Drug is Unconstitutional

Published on: January 13, 2015 | by Lasnetski Gihon Law

One of the myriad problems and idiotic characteristics of the monumentally wasteful and unsuccessful War on Drugs is that the marijuana plant, or cannabis, is classified as a Schedule I drug by the federal government. Schedule I drugs are the most highly restricted drugs and reserved for drugs that are considered the most dangerous. Also, ironically, they are drugs that are considered to have “no currently accepted medical use”, despite medical evidence to the contrary. As a result, under this rule, marijuana cannot be prescribed by a physician, despite the fact that medical marijuana is legal in one form or another in many states. Another characteristic of proper Schedule I drugs is that it must be a substance that has a high potential for abuse. As an example, heroin has a high potential for abuse. To classify marijuana and heroin together in such a category is ridiculous and unsubstantiated by any honest measure.

One result, of course, is that we have numerous criminal laws dealing with marijuana, and marijuana arrests are some of the easiest arrests for law enforcement to make to maintain their stats and keep prisons full. However, in a marijuana cultivation case pending in California, the defendants are challenging the classification of marijuana as a Schedule I drug. On its face, to have marijuana as a Schedule I drug with heroin while cocaine, methamphetamine and Oxycontin sit in the Schedule II category with drugs that apparently have “less abuse potential than Schedule I drugs”, is completely ridiculous and irrational. Hopefully, a court will see this.

If the court does acknowledge this travesty of common sense, it is unclear what effect it will have on others. While it will likely help the particular defendants in this case, it may or may not reverberate to other locations and other decisions. Hopefully, it, or something, will prompt the federal government and prosecutors and judges to see that marijuana related prosecutions are a waste of time, money and resources as well as being counter productive.

Florida Drug Case Thrown Out Where Police Stop Suspect for Driving Too Slowly on Highway

Published on: December 11, 2014 | by Lasnetski Gihon Law

In Florida, a lot of drug arrests stem from simple traffic stops. One way for a criminal defense attorney to attack such a case would be to challenge the legality of the initial stop. While this may be difficult when a police officer is prepared to testify that the suspect violated some traffic law, sometimes police officers make mistakes when they pull people over.

In a recent case near Jacksonville, Florida, a police officer stopped a suspect driving on the highway for apparently driving too slowly. The speed limit on the highway was 65 miles per hour, and the suspect was driving 45 miles per hour. The minimum speed was 40 miles per hour. After the police officer stopped the suspect. The police officer discovered that the suspect had a suspended license and arrested the suspect. The police officer also found a gun and cocaine in the car. The suspect ended up with felony and misdemeanor charges as a result of the traffic stop.

The criminal defense lawyer filed a motion to suppress all of the evidence leading to all of the charges because the initial stop was not valid. The suspect was not breaking any traffic laws so that would not be a legitimate basis to stop him. However, a traffic violation is not the sole legal basis for a police traffic stop. A police officer could arguably stop a driver if there was a reasonable belief that the driver was having some sort of medical problem. Police are allowed to stop a person and investigate if there is specific evidence of some kind of serious health issue. Alternatively, if the suspect was causing some type of traffic problem, that could be a legal reason to conduct a traffic stop.

It is a Felony to Bring Drugs or Contraband into a Florida Jail but State Must Prove Knowledge

Published on: December 8, 2014 | by Lasnetski Gihon Law

In Florida, it is a felony for a person to bring contraband into the jail. Many of these cases involve a person who is arrested with drugs on them and do not want to tell the police officer the drugs are there. The police officer does not find the drugs during a search incident to an arrest, but the personnel at the jail finds the drugs during a more thorough search. In that case, in addition to whatever charge the suspect was facing that prompted the initial arrest, the suspect will also face the felony charge of introducing contraband into a county facility.

However, in order to succeed on such a charge, the state must prove that the defendant knowingly introduced the contraband into the jail. Basically, the state has to prove the defendant knew he/she had the contraband on him when he/she entered the jail. Practically, the assumption will be that the defendant knew he/she had the contraband on him/her and it is up to the defense to establish that it was a mistake or he/she did not know. There are cases where the state may not be able to prove knowledge. If the defendant can show he/she was wearing old clothes or someone else’s clothes or had a bag that had been in someone else’s possession prior to getting booked in the jail or anything else to indicate he/she may not be aware of a small amount of drugs or other contraband in his/her clothes or personal items, the state may not be able to prove its case.

Keep in mind that this felony charge applies to more than drugs. Contraband under this criminal statute can also include unauthorized communications, money, tobacco products, alcohol and of course, weapons. It is also a felony to possess such contraband in the jail. If someone is able to bring contraband into the jail and does not get caught, a person who ultimately possesses the contraband can be charged with the felony crime.

The State Does Not Necessarily Have to Disclose Identity of Confidential Informant in Florida

Published on: December 2, 2014 | by Lasnetski Gihon Law

In Florida, many drug trafficking and other drug crimes start when a confidential information gives information to the police about a suspect. Normally, a person is arrested for a drug crime or some other crime, and in order to improve his/her position, he/she gives information to the police about some other person allegedly involved in criminal activity. A confidential informant is exactly what it sounds like. It is a person who gives information to the police who wants to remain secret. The police also want to keep his identity secret so the person can continue to have access to the suspect without suspicion and also to protect him/her from retaliation.

In many cases, once the police get the information from the confidential informant (CI), the police go and begin their own investigation to include surveillance, undercover drug buys and search warrants. They make their drug case based on what the police observe through the surveillance, drug buys and searches. They do not necessarily use the CI to make the new case; they use him/her for preliminary information to begin their investigation. In other words, while the CI provided the information, he/she was not involved in the investigation that resulted in the charges. If this is the case, the state may not have to reveal the identity of the CI. The criminal defense lawyer may file a motion requesting the identity of the CI, but the discovery rules in Florida protect a CI from disclosure. The general rule is the state does not have to disclose the identity of the CI unless the state plans to have the CI testify at a hearing or trial. If the CI made an undercover buy or was integral to the conduct that resulted in the pending charges, it is likely that the state would have to reveal his/her identity at some point. However, if the CI was just used for information and the case was made by the police, the defendant may never know the identity of the CI throughout the course of the case.