Articles Posted in Drug Possession

IMG_0476-e1456765765191-300x225What I’m about to say may come as a shock to folks unfamiliar with the workings of our government.

Our government officials exaggerate.

Yes, I’m as tired of such cliches as you are.   That being said, please don’t stop reading just because we’re starting out with a cliche.  Behind every cliche there may be a nugget of truth lurking.

Today, our Circle of Distrust involves law enforcement, and their habit of exaggerating arrest reports.  Why should we care if cops lie a little?  Well, an exaggerated arrest report leads to exaggerated charges, and in the end, harsher sentences for no good reason.   Imagine a horror movie with the Butterfly Effect, where small acts snowball as the movie progresses and there’s blood everywhere by the ending credits.  Trust me, these exaggerations are a major source of injustice (if injustice doesn’t bother you, please note that these exaggerations lead to wasted tax payer dollars, maybe your pocketbook should be concerned over this). Continue Reading

Some things are simply hard to explain.cross-300x224

Why is there something rather than nothing?

How did self-conscious beings arise out of lifeless star dust?

And, how can prosecutors be so cold-hearted?

To help answer question number three, above, we’re going to review a recent case.  To mentally prep you, let’s start with some stretching exercises.  For sentencing purposes, assume that drugs are bad, and selling them is even worse.  Contrary to what you’ve seen on TV, most of the drug sales force out there consist of poor people trying to support their habit.   They don’t own fast cars or 22″ rims.  And, it’s probably a myth that they’re “selling” anything.  Philosopher Chris Rock argues that no one really “sells” drugs–drugs sell themselves.  If you can get someone to buy life insurance, you’re a sales person with real sales skills.

Anyway, our true story of the day involves a single mother of three young children, and she was caught selling drugs in order to support her addiction.  State v. Sawyer, 2016 Fla. App. LEXIS 17723 (Fla. 1st DCA 2016).  The penalties facing Ms. Sawyer were steep.  She scored a minimum prison term of 39 months, a maximum sentence of 15 years prison.  But, does minimum really mean minimum?  Well, not really, ’cause you know sometimes words have two meanings’, as Robert Plant would sing.

Obviously, Ms. Sawyer’s defense attorney wanted the judge to give her something less than the minimum sentence, but to do that she would have to qualify for a downward departure.  I know, boring legal terminology just a few sentences into this.  Sorry.  And, this mandatory prison term clouds other important issues, like, does Ms. Sawyer deserve over three years in prison?  What will that cost taxpayers?  Why wouldn’t we address Ms. Sawyer’s addiction, and have her ready to raise her three kids?  Isn’t it cheaper for the taxpayers, and better for society?

These questions were irrelevant to the prosecutor.  The knee-jerk reaction to someone scoring prison is, “give them the prison time” (you know that when your knee jerks your brain isn’t even processing information).  Some folks would say that your success in life is directly related to the number of uncomfortable conversations you are willing to have.  I’ve had plenty of these uncomfortable conversations with prosecutors unwilling to think these matters through.   Why think?  The legislature has mandated a prison term, so we don’t have to give any thought to this, right?    Well, we’re going to do some thinking here.   Was Ms. Sawyer’s attorney able to get her to qualify for less than 39 months via a downward departure?   Continue Reading

After several decades of defending criminal cases, I’ve seen a few patterns emerge.  Our brains are rigged to see patterns, even when they don’t exist, but let me share with you a pattern of behaviordutch_weed that keeps me in business.  The vast majority of drug arrests arise out of basic traffic stops.  Let’s face it, people like having drugs in their car.  Shocking, I know.  Take some time to catch your breath, and when you’re ready, read on.  Many criminal defense attorneys–who happen to smoke weed–have their weed delivered to their home rather than having it in their vehicle, for fear of getting caught in this most pedestrian way.  So, while it may come as some surprise that people who are smart enough to obtain a Juris Doctorate are dumb enough to regularly break the law,  at least they are smart enough to avoid the number one way of getting caught.

Millions of folks employed by Crime Inc. would probably be doing something else for a living if citizens stopped committing crimes in their vehicles (drugs and DUI’s account for most of the crimes out there).  There’s a simple solution to this, as there is for much of the world’s problems.  Stop transporting drugs in cars.  Stop eating so much.  Stop the violence, hate, etc.  That being said, if Coke couldn’t convince the world to sing in perfect harmony, I’m probably not going to be looking for other work any time soon.  People are going to keep transporting drugs in their cars, and I’m going to keep helping them out of it. Continue Reading

Anyone out there have a friend that transforms everything you say into naughty innuendo?  I enjoy such banter when that friend is female (I’m just saying), but not so much when folks attempt to stretch the joke into a half hour sitcom (Broad City pulls it off, but 2 Broke Girls doesn’t).  A few professions take twisting to the extreme.  Cops are experts at taking innocent words or conduct and converting it into something criminal–and this is one of the main reasons I recommend folks never talk to the police without an attorney present.  But, even if you don’t say anything, the police can still take your innocent household items and transform them into criminal objects (check out my article “How SpaghettiO’s Can Get You Arrested“).IMG_0476

To understand the concept behind this transformation, let’s take a look at my mom’s kitchen table.  Before telling you what’s on the table, let me tell you a few things about my momma.   Of course, she’s the best.  Second, she’s an artist.  Because she’s crafty, she has little ziplock baggies everywhere for beads and jewelry.  To most officers, these tiny ziplocks have only one legitimate purpose–cocaine storage.  My Mom also takes several medications (she’s in her 70’s, and as you know, the pharmaceutical industry encourages one prescription per decade on earth, so she’s met her quota and then some).  The problem is, she doesn’t keep her pills in their prescription bottle.  She has a little MTWTFSS plastic pill organizer, and God forbid a prescription med isn’t kept in it’s bottle.  Nothing gets a rookie cop more revved up than a controlled substance separated from its prescription bottle.  Pills outside of their prescription bottle home must be illegal, after all, who would dare remove their pills from the bottle?

Back to the kitchen table.  My Mom’s kitchen table has a digital scale on it.  No, she’s not a drug dealer.  But, if this table full of tiny ziplocks, prescription drugs, and a digital scale was somehow in the hood with a few teenage black kids sitting around it–we’d have plenty of kids going to jail.  The point is, a digital scale or tiny ziplock baggies are perfectly legal until drugs enter into the picture.  Once drugs are nearby, such items could become what is known as “drug paraphernalia”, because those items are deemed help a citizen “inject, ingest, inhale, or otherwise introduce into the human body a controlled substance”.  Florida Statute, Section 893.147(1)(b).  The recent case of Chandler v. State takes a closer look at what constitutes drug paraphernalia.  41 F.L.W. 861 (Fla. 5th DCA 2/26/2016). Continue Reading

Sometimes, criminals can be smart.  For example, consider the highly illegal trade of elephant ivory tusks.  It makes me absolutely sick to think that such wonderful animals are slaughtered for theirIMG_0127 teeth, but it does happen, and far too often.  What is interesting, though, is  how difficult it is to catch these folks.  A team from National Geographic decided to investigate the tusk trade, and they did so by creating a fake tusk embed with a GPS tracker.  Once these investigators placed the fake tusks into circulation, they watched the tusks travel across the African continent.  Th0e path taken by the tusks was one far away from roads.  No roads, actually.  The tusks were carried by hand, through dense forests, about 12 miles a day.  Now, compare this sort of criminal endeavor with the American drug trade.  American’s can’t get enough of their cars.  They put all kinds of drugs and contraband into vehicles, stuffing it everywhere possible.  That’s why so many drug cases arise from simple traffic stops.  And, if the drugs aren’t found in the citizen’s car, drugs are often found in the back seats of the patrol car.  American drug possessors could learn a thing or two from the patience of the evil tusk traders, but that’s a story for another day.
Patrol cars have so many people in them, when drugs are found in the back seat, it can be tough to prove where the drugs came from.  Sure, the officer conveniently testifies that the car was cleaned and searched every time someone exited the back seat, but such testimony doesn’t prove much.  Part of the problem is the fact that law enforcement does not conduct a full body search of a person arrested and placed into the back of a patrol car.  So, if you’re in the unfortunate position of being chauffeured to the local jail, any drugs not found by the patrol officer will certainly be recovered by the full cavity search courtesy of the county jail intake division.  By the way, it is a crime to “introduce contraband into a county facility”.  If you don’t dump the drugs on you by the time you reach the jail, bringing these drugs into the jail will add more charges to an already bad day.  The most common solution to this problem is simple.  Hide the drugs in the back seat of the cop car.  Easy enough, right?  Wrong.  Remember, most folks are handcuffed, hands behind their back.  With the exception of a few contortionists, it is not an easy task to dispose of contraband this late in the game.  After all, the officer driving is watching the road, right?  Not only is he watching the road, he’s playing Convoy on his two-way radio, and goofing off on his laptop–all while driving.  You and I would be given several tickets for such distracted driving, but law enforcement can do as they please.  I’ve seen seat belt citations given by motorcycle cops, and so forth, and so on.

Continue Reading

IMG_0251.JPGThere are more prescription drug arrests than ever before–primarily involving possession of oxycodone or hydrocodone. No, I don’t have stats to back that up, but you can just hear me now and believe me later. While there are many contributing factors to this record breaking arrest rate, the one factor near and dear to my heart is law enforcement’s poor handling of the situation.

The police have little motivation to do any sort of “investigation” when it comes to arrests for possession of a prescription medication. If you don’t have a prescription label on the bottle–you’re going to jail. Gee, that’s some investigation officer, good use of the Bachelor’s in Criminal Justice. For the oxycodone patient, it’s a vicious cycle. Oxycodone users don’t want to walk around with a labelled prescription bottle that advertises “valuable pills inside”, folks who leave their oxy labels on the bottle are the same sort of folks that leave their purse sitting on the front seat of their unlocked car. Sure, you can do it, but why risk people knowing what’s inside? To make matters worse, law enforcement is often too lazy to follow up on a citizen’s claim that the pills are possessed legally. I hate to be the one to remind folks that the good ‘ol days were actually pretty good when it came to police investigatory skills–I seem to recall a time when cops would actually investigate crimes. A novel concept, right? Investigations today are limited to fictional depictions like ABC’s Castle, or NCIS. But once upon a time, investigations actually existed.

Why won’t officers confronted with a citizen claiming a valid prescription simply make a few phone calls and ask a few questions? Many of these officers have bachelor’s degrees in criminal justice, while officers in years past had no such degrees but their investigative skills would run circles around the college cops of today. Apparently, it’s just easier to make one more drug arrest than to conduct an investigation. Ok, I’m done blibber blabbing. Here’s a real life example of what I’m talking about.
Continue Reading

spaghetti.jpgModern technology has blessed us with the ability to question law enforcement in more ways than ever before. We no longer need to “take their word for it”. For example, video cameras are on every cell phone. Videos of cops abusing citizens now have their own channels on YouTube.

Video may be the great equalizer, but another technological advancement that has contributed to our freedom is laboratory analysis. Yes, folks who have spent most of their adult lives in prison for rapes they did not commit, have been freed by the analysis of physical evidence years later (DNA, for example. I’ve written some articles about these tear jerking Shawshank stories, which you can find here).

But, what happens when the police do not utilize technology? What happens when the dash cam on the police car “isn’t working”, or “wasn’t turned on”? Unfortunately, what happens is that the police rely on their “training and experience”. Whenever you hear an officer utter the words “based upon my training and experience”, here’s the translation: “I’m about to make something up”, or, “I have no evidence to support what I’m about to say”. Lots of bad things happen when officers rely on their ‘training and experience’, rather than on science, or even good detective work. Orlando is seeing numerous arrests for possession of prescription medications, especially pain pills, and many of these folks have a valid prescription (who wants to carry around a bottle of 180 oxycodone’s when you can put a few in your pocket, men don’t have that carrying capacity in their jeans). Now, a simple call to the 24 hour Walgreens would solve the case, but the road patrol officers making these felony arrests are not interested in lifting a finger. One phone call is simply too much to ask. Arrest now, ask questions later. The taxpayers will pick up the bill, and never complain.

The lack of any sort of investigation on the part of law enforcement in drug cases is now at epidemic levels. And this brings us to the case of the day, Ashley Huff. She was arrested in Gainsville (GA) for possession of methamphetamine after permitting a search of her car. The search revealed a plastic baggie in her purse, with the name “Ashley” on it, plus a spoon was in the bag. Ah ha! A spoon! She must be cooking meth, right? Not only did they find a spoon, but the police indicated that Ashley began to get “nervous” when they found the spoon. Boy, I’m sure these officers thought they had a slam dunk felony drug case now. But wait, it gets better. The spoon had a “clear, crystal-like substance” on it. Guilty as charged, why even get the court system involved at this point? After all, ‘based on the officer’s training and experience’ the “clear, crystal-like substance” was methamphetamine.
Continue Reading

perscription pill bottle.jpgYes, the title of this article gives away the ending, but it’s the journey, not the destination.

FACTS: Daniel Shedd is just chilling, drinking a beer, driving his mom’s car, when he was stopped by the Florida Highway Patrol (FHP). Shedd v. State, 137 So. 3d 456 (Fla. 4th DCA 2014). FHP chats him up, and Daniel reveals to the officer that he has a prescription pill habit. In case you didn’t know, telling a cop you have a drug habit is like a sorority girl announcing to the frat party that she’s a nymphomaniac–there’s going to be some shenanigans as a result of this announcement. So, with Daniel’s announcement comes the obligatory search of the car, and Daniel is arrested for possession of marijuana, possession of alprazolam (Xanax), and possession of hydrocodone (it’s also a crime to have an open container of alcohol in the car, but I guess they let that one slide).

It never ceases to amaze me that people drinking a beer, and driving, drive horribly. If you’re doing something wrong, can’t you drive like a normal human being? Daniel takes it a step further, because not only is he driving bad and drinking–he has marijuana in the car, Xanax in the car, and hydrocodone in the car. It is possible that the Golden Coral buffet o’ drugs in Daniel’s car gave him a surge of poor driving adrenaline, just enough to draw law enforcement’s attention. However, things started looking better for Daniel when he explained to the cop that the alprazolam and hydrocodone both belong to his mother (indeed, the car even belongs to mom).

Actually, not only did the pills belong to mom, the pill bottles had mom’s name written on them. So, assuming the FHP officer could read, how hard can this be for FHP to verify? Unfortunately, the old “these drugs belong to my mom” routine doesn’t always work, because law enforcement often lack the skills/desire/work ethic needed to do a simple investigation. If you think law enforcement investigations resemble that of NCIS or even Angela Landsbury, you’re sadly mistaken. Investigations into felony prescription drug offenses are pretty rare. In this case, if FHP would have taken just a few minutes to contact mom and verify that the pills were hers, we taxpayers would not have had to pay for two felony drug arrests. But, why save taxpayers money? After all, can’t we just raise the sales tax another ½ cent?
Continue Reading

cocaine.jpgAs the old saying goes, police work is only easy in a police state. Assuming this to be true, detectives in Iran need only an 8th grade education to jump to conclusions and imprison their citizens. The reverse is supposed to be true here in America. We have freedom. Freedom causes police work to be more difficult. And, we do have some of the best police in the world as a result, though I suspect some of them know the law “too well” (which, we’ll get into later). Every now and then, I sense we are inching closer to a police state, and this movement finds its genesis in court decisions dealing with evidentiary issues. For those of you unfamiliar with the criminal justice system, the easier it is to prove a crime, the closer we become to a police state. It’s real easy in China. Yes, I know this sounds a bit extreme, and the term “police state” is boring and abused. But I feel like that clichéd old frog that never jumps out of the boiling water because the temperature increases are so subtle. So, let’s talk about one of those subtle temperature increases, found in the case of Jennings v. State, 124 So. 3d 257 (Fla. 3rd DCA 2013).

Jennings was driving a car with two other occupants when it was stopped for a traffic violation. Jennings exited the car and walked up to the officer with his license in hand, acting “very, very nervous.” As the officer and Jennings were talking, the backseat passenger took off running, but was caught by a back-up officer. To make matters even more suspicious, the front seat passenger then attempted to flee, but he too was caught. And, as you might expect, the reason why these folks were running is that, lying on the front passenger floorboard, there was a gym bag full of two kilos of cocaine, and over $30,000 in cash. Jennings was charged with trafficking in cocaine, and the jury found him guilty of a lesser offense of attempted trafficking in cocaine. The officers testified that, allegedly, the cocaine was in plain view, open for everyone to see–including driver Jennings.

Now, I have a bit of internal conflict about this officer’s testimony that two kilos of cocaine were in plain view, due to the duffel bag being open for all to see. After defending criminal cases for over 20 years, it never ceases to amaze me that drug traffickers don’t bother to hide their drugs. Zipping up a duffel bag, not that hard, right? You mean to tell me that, when this car was being pulled over, Jennings and the passengers just left two kilos wide open for everyone to see? Am I supposed to believe that? Yet, the internal conflict arises from the fact that, yes, some criminals are simply that dumb. The stupidity cannot be denied. So, it’s a tough call, but the officer’s testimony that the cocaine was “in plain view” is the one statement that sent Jennings to prison. The “in plain view” statement keeps this case from being thrown out of court. If the officer testified that the duffel bag full of two kilos of cocaine was zipped up, and its contents were unknown, this case would have been thrown out of court under the proof requirements of constructive possession.
Continue Reading

pill bottle.jpgWhen it comes to prescription pill arrests, there seems to be little to no investigation conducted by police. I know that’s shocking to you, but somebody has to tell it like it is. But, do the police conduct an Interrogation? You bet. “Interrogation” is the new substitute for “investigation”. Basically, if you’re caught with prescription meds–without a pill bottle–you’re probably going to jail. I know of numerous cases here in Orlando in which the citizen had a prescription, but the police never did an investigation via local pharmacies in order to uncover the truth. The truth just isn’t that important these days. Fortunately, you have defense attorneys around who know how to find the truth, and use that knowledge to get a case dismissed.

When someone hires me to defend a felony charge of possession of oxycodone, hydrocodone, Xanax–or whatever–the first question asked is whether or not the client has ever had a prescription for the pill they were caught with, because there is such thing as a prescription defense in the State of Florida. Most cops think there is some sort of law out there that requires citizens to throw out their pills after a certain number of years. There is no such law. And, the police really have no excuse for not conducting an investigation on these matters. Pharmacy records are not “medical records” for confidentiality purposes, so the police have easy access to pharmacy records (they can just ask, no subpoena necessary), but are often too lazy to confirm or deny a suspect’s story. It’s easier to simply take the citizen to jail. But hey, who am I to tell Crime Incorporated that they should cut down on the number of arrests made by simply verifying a suspect’s claim that they have a prescription for the pill in their possession? As you know, the world is not a perfect place. We defense attorney’s can’t stop an arrest, but we can attempt to prevent a conviction.

If I had a dollar for every time I’m asked “Can’t we just file a motion to dismiss this case and make it all go away?” Sometimes, the answer is yes, we can. In a prescription pill case, motions to dismiss are common (technically called a “(c)4” motion, after the subsection of the criminal rules which permits a court to dismiss charges when the sworn facts do not allege a criminal act). The problem with (c)4 motions is that the defense and the state must agree to the “material facts”. When the two parties agree to the material facts, the (c)4 motion forces the court to dismiss the charges. Of course, the question is, will the prosecutor to agree to the facts? If they don’t agree, they file something called a “traverse”. A “traverse” will sink a motion to dismiss, as a legal traverse lets the court know that there is some disagreement as to the “material facts”. Let me show you how this plays out in real life. (and, you can check out another article I wrote on this topic, creatively titled “Motions to Dismiss“)
Continue Reading