Articles Posted in Drug Possession

0-e1570278972378-300x168Have you ever been told, “Don’t just stand there, do something?”

Often times, “doing something” is a terrible idea, yet folks cannot seem to let go of this impulse to pretend that “doing something” will help the situation.

Here’s an important observation of Seth Godin regarding our impulse to ‘do something’:

doing something makes us feel like we’re making the problem go away.  Sometimes the problem isn’t going to go away.  Everything we do at a funeral isn’t going to bring the person back from the dead.  Everything we do in a courtroom isn’t going to help in the short run, even the long run, the victim of that crime.  The idea that people in government need to ‘do something and do it right now’ because we are in pain is one of the weakest points of democracy. . . .

The alternative is to stand there.  Not to stand there and ignore the situation, but to stand there and accept the situation.  Yes, this happened.  Yes, this situation exists.  Yes, we are uncomfortable.  Yes, the answer is complicated.  Yes, we don’t know exactly what to do.  So, we’re going to stand here.  We’re going to stand here not ignoring it but immersing ourselves in it, thinking as hard as we can to understand–maybe for a second, maybe longer–what that other person, what that other force, what that situation needs.”

Seth Godin, Akimbo podcast,  Don’t Just Do Something, Stand There, August 8, 2019.

Sometimes, good things come to those who wait.

Sometimes, doing nothing is a good thing.  It gives you time to think about the situation.

And that’s the good news for today.  It seems like our legislature has given some things a bit of thought, and as a result, we’re seeing several promising changes to our criminal laws, which took effect a few days ago, on October 1st, 2019. Continue Reading

weed-300x199We have science to thank for much of our progress in the last thousand years.  Any guess as to what is the most important technology ever invented?  The wheel?  The printing press?

Hands down, whoever invented fire technology may have advanced human civilization more than any other tech, and we’ll probably never know which caveman or cavewoman came up with that brilliant idea.  You need not watch Naked and Afraid to know that fire is everything.

But, technology has created its share of problems.  Are we watching too much TV?  Are kids interacting too much with tech, rather than actual human beings?   Do people have fewer human friends now, versus decades ago, all due to technological “advances”?

What we do know is that technology is now creating a problem for prosecutors.  Here’s the evolution of this problem.

The first problem is, July 1st, 2019 marked the day that hemp became legal in Florida.

The second problem is, hemp is the same plant as marijuana.  They are both cannabis plants, but hemp contains less THC (tetrahydrocannabinol, the stuff that gets you high).  As such, the police cannot determine whether a citizen is possessing legal hemp or illegal marijuana.  After all, hemp smells the same and burns the same and looks the same as illegal marijuana.

Yes, we may be seeing far fewer possession of cannabis arrests.

Let’s get back to science for a moment, so we can understand the problem with all of this.  Scientists can send people to the moon, but they have a tough time telling the difference between hemp and marijuana.  Notice I said “scientists.”  Not police.  Not prosecutors.  Not judges.

Prosecutors rely on the laboratories at the Florida Department of Law Enforcement (FDLE) to convict folks of drug crimes by having a “scientist” testify from FDLE (yes, I’m using air quotes).  The measurement devices currently used by FDLE to test for the presence of THC are gas chromatographs (GC) and mass spectrometers (MS). The problem is, these laboratories do not have the instruments necessary to tell the difference between a legal substance–hemp, and an illegal substance–marijuana.

Continue Reading

Science can explain everything.cropped-message-300x188

As I sit here typing, neurologists can explain how the light from the screen is processed by my retina, which is directly connected to my brain.  Some scanner out there (fMRI?) could probably map out my visual cortex as I’m looking at this screen.    Another branch of science could probably explain how my brain is sending signals to my fingers so that I can hunt & peck this article.  Scientists have no problem mapping out the function of things and figuring out their structure.  Easy stuff.

The tough question is, why should these structures give rise to any sort of feelings?  Sure, science can explain everything–except how I feel.   I’m sure some coffee scientist out there can drill down into how the delicious smell of coffee first hits my nose, which then sends a signal to my brain, which then causes me to rush to the Keurig machine and retrieve that precious liquid that gets me through the rest of day.  But, no scientist can tell me how that coffee is going to taste.

No, we’re not going to dive into “the hard problem of consciousness” today (or ever?), as I’m running out of words (web promoter people tell me to keep it under 1,000 words.  Sorry), and you’re running out of interest.  Suffice to say that, even though there are plenty of limitations on science, certain criminal cases are begging for a bit of attention from the white coats.  You need science to prove certain allegations.  You need science to defend certain allegations.  We’re going to talk about just such a case today.

Demetrius Nugent was convicted of trafficking in oxycodone based upon lots of pills found in a car he was driving.  Nugent v. State2019 Fla. App. LEXIS 89333 (Fla. 2d DCA 2019).

Here’s what happened: the Lee County Sheriff’s office was conducting a drug investigation, and they had their eye on a red Mustang that kept making odd trips in and out of a neighborhood.  They followed the Mustang to a convenience store, where they then observed a Nissan pull up next to it.  Then, someone hopped out of the Nissan and into the Mustang.  The Nissan person exited the Mustang with something in his hand, but the cops didn’t know what it was.  The Nissan leaves the convenience store and naturally, the police follow.

Now, remember what I said upfront: the police are conducting a drug investigation.

And, how do you find drugs?

Well, you’ve got to come up with a reason to stop that Nissan. Continue Reading

home-florida-300x225Have you ever met that perfect couple?  You know, the couple that causes bad thoughts to pop in your brain, like, “can anyone really be that happy?”  They must be hiding something, right?   If you’ve ever tried meditating, then you know how many random thoughts are popping in and out of existence at any given moment.  It’s tough to control sometimes.

And, I also can’t control that wave of joy that washes over me when I discover that the perfect couple is not, in fact, so perfect.  Again, these feelings just happen.  In German, the word for taking joy from someone else’s failure is “Schadenfreude.”

When the perfect couple breaks up, everybody wants to know the reason.  The simpler, the better.  We want a one-word explanation, if possible.  She “cheated”.  He “abused” me.  She’s a “narcissist.”

The problem is, reducing a complex situation to one word isn’t accurate, or helpful.

There’s nothing more annoying than watching some talk show host demand, “Give me one reason why I should vote for your candidate.”  Really, one reason?    When a judge asks “Give me one reason why I should not send your client to prison,” I’m ready with an answer that will keep my client out of prison–a better answer than what the judge expects from such an unreasonable question.

One of the many things I’ve begun to question after 26 years of defending criminal cases are the tiny convenient “facts” the police pepper throughout their arrest reports.  Yes, I’m using air quotes around “facts”.  The case we’re going to discuss today is a prime example. Continue Reading

Some of you are too young to remember late fees.IMG_2927-300x225

Late fees involved renting a $3 movie and paying another $6.42 in late fees.  Late fees created that pit in your stomach when you glanced over at your coffee table, noticed a blue & yellow Blockbuster video box, and wondered to yourself “Wasn’t that supposed to be returned last week?”

Blockbuster made $800,000,000 per year on late fees. I’m pretty sure I contributed about $100/year to that pile of money, and it made me angry every time.  It’s not too far of a stretch to assume that most Blockbuster customers hated their late fees.  But solving problems will make you money, and one man’s problem is another’s opportunity.   So, a tiny company saw my late fees as an opportunity and did the seemingly impossible: video rental with no late fees.

Wow.  What a concept.  And that’s where the Netflix revolution began.

When I heard about this video rental company without late fees, my next question was: where do I sign up?  I gladly paid Netflix a monthly fee to mail me DVD’s long before Netflix was crowned the world’s largest movie production company.

Here’s the crazy thing: Blockbuster saw all of this unfolding.   They could have stopped it.  Yes, you know how this story ends, but as the story goes, someone in Blockbuster management with a “C” title (could have been a CEO, CFO, COO, who knows) proposed to their board that they do away with their late fees, as Netflix had done.

The board erupted in laughter.  “We ain’t giving up $800,000,000 in late fees, are you effing crazy?  We should fire you just for suggesting such…” (this is my fictional account of what happened in the board room, I’m sure they used actual curse words in the real meeting).

Blockbuster could have bought Netflix for pennies on the dollar  (just as Yahoo could have bought Google for pennies on the dollar, and the list goes on and on).   Yes, hindsight is 20/20, and as Yogi  said, “it’s tough to make predictions, especially about the future.” Continue Reading

IMG_3780-300x225Sometimes, the toughest thing to do is to not do anything.

A common, thoughtless phrase goes something like this: Don’t just stand there, do something.  Almost always, this is bad advice.

Our brains are hard wired to “do something,” much in the way that a deer runs across a busy road when he hears a random noise behind him.  This impulse to “do something” may have helped us survive in the wild, but it no longer carries the same wisdom.  “Doing something” tricks us into thinking we have control of the situation, and probably makes us feel less regret later, should things turn out bad.  Unfortunately, doing something can get you into trouble.

If you have the courage to “not” do something, to stand still, you’ve just increased your chances of success.

This is Warren Buffett’s 5/25 Rule.

Now, I can already sense the eye-rolling, and eye-rolling rates has been linked to a marriage’s chance of success, so I take your eye-rolls seriously.  Plus, invoking Buffett’s name will make some of you yawn, in the same way that talking about quantum physics at a gathering will bore everyone to tears (guilty as charged).

Here’s how you follow the 5/25 Rule.  First, write down 25 things you need to do, and place them in order of importance.

Next, circle the top 5.

Keep in mind that, even though you’ve circled the Top 5 goals, the other 20 goals are still pretty important to you, right?  Well, even though those other 20 things are super important–the Rule requires you to cross out the remaining 20 things on your list.

Under the 5/25 Rule, the bottom 20 goals are completely out of your life.  Forget about them.  Actually, Buffett goes beyond mere forgetfulness, he says these 20 things just became your “Avoid At All Cost” list.  You may be tempted to work on #6, or #9, or #14, because these are still important things.  But, you can’t touch them.  You can’t do anything on this avoidance list until you succeed on your five most important things.

And that, my friends, is the 5/25 Rule.  And that, my friends, is what we call FOCUS.

Imagine you’re a reporter, and you land an interview with Bill Gates and Warren Buffett sitting at the same table.  their first interview together.  This actually happened.  And, imagine you ask them a simple question “What is the one trait that made you both rich?”

They both answered with the same word, at the same time.  FOCUS.   Continue Reading

IMG_0476-e1456765765191-300x225Its hard to believe that the movie El Mariachi came out 25 years ago.   Its one of my favorite movies, and I love the director, Robert Rodriguez.   Rotten Tomatoes gives El Mariachi a 93%.  For you Rotten Tomatoes fans, this is a good number, but worse movies (more expensive . . . comic book hero movies, for example)  have received higher ratings.

Here’s the thing: Rodriguez wrote, directed, and filmed El Mariachi in 1993 for $7,000.  And he did it in two weeks.  Feeding the crew of a super hero movie cost millions.  Yes, millions for food.  Again, Rodriguez created a great, classic movie for $7,000.

As you might imagine, it was tough for Rodriguez to film such a classic on a low budget.  I think the term “low budget” covers budgets up to $100,000, so $7,000 should qualify for some word we have yet to invent.  Of course, once Hollywood saw what he Rodriguez could do with $7,000, future budgets ran into the millions.

Surely, things would get easier with more money, right?  There’s a song about Mo Money, but you have to get your 90’s on to sing along to such rap wisdom.

Rodriguez was once asked by an aspiring filmmaker about how few problems he must now have–with more money to make his films.  The student filmmaker explained “I tried filming my movie on a low budget–but this went wrong, that went wrong, everything went wrong!”   I loved Rodriguez’s response: if you are a filmmaker, you are hired because everything goes wrong.  That’s the job.

Same goes for criminal defense.  Things go wrong, that’s the job.

Yesterday, a client apologized to me because his witnesses were a tad difficult.  He was right, but an apology was completely unnecessary.  I fix problems for a living.   After 25 years of defending every sort of case imaginable–my job is to fix things (my web people love these sorts of statements, borderline advertising, I know, but you need to know what I do).   I’m not the Wolf, but things get fixed (follow me here, Robert Rodriguez is friends with Tarantino . . . ). Continue Reading

cocaine-lines-300x225People love being righteous, don’t they?

How many of these righteous people are actually correct?

If we set up a cage match between righteousness and truth, people much prefer being righteous over truth.  This factoid comes to us via studies done by Jonathan Haidt.  I don’t think the results of Haidt’s study surprised anyone, because we all know people who are so possessed by their righteousness that they are blinded to the truth.  You see righteousness prevailing over truth in politics all the time–folks would much rather support their team than take the time to sort out the truth.

So, if you want righteousness,  just chat with anyone who is convinced that their political party is correct.  Or, you could talk to cops.  Same righteousness, different topic.

We defense attorneys read tons of arrest reports where police officers are 100% convinced that a defendant is driving drunk, or dealing drugs, or you-name-it.  If you’re accused of driving drunk and refused to blow into the machine, the entire crime is just the officer’s opinion.  And yes, I’m righteous about my insistence that the police are super righteous.

Our real life case for today involves several officers convinced that someone is a drug dealer–without having any evidence to back it up.    McFarlane v. State, 239 So. 3d 1272 (Fla. 2d DCA 2018).  Here’s what happened: Continue Reading

earth-moonWe live in an absolutely huge universe.  I don’t want to get too Carl Sagan on you, but let’s face it, the more we know about the universe—the bigger it gets.

We’ve known for a while that our universe is full of stars.  And these stars form galaxies.  There are billions and billions of galaxies that each contain billions and billions of stars.

Add to that a boat load of planets orbiting all those stars.  That’s right, we’ve now discovered planets everywhere.

The funny thing about all of this is that Earth is the only place we know of where atoms are observing atoms.  Amazing, right?  All this stuff in the universe, but only one place where the “stuff” is observing the other “stuff.” (If we had all the time in the world, I would launch into a short quantum physics discussion, in particular, how “conscious observation” effects physics.  Or, we could discuss Fermi’s Paradox.  Now, my web people tell me I’ve got to get to a legal discussion eventually–but they don’t really read what I write–so let’s dig deeper with the knowledge that my web people aren’t reading this.  Anyway, the physicist Ernico Fermi was at a science conference where the white coats were giddy over their predictions as to just how much extraterrestrial life must be out there besides us—given how big the universe is.  He was the Debbie Downer of that physics conference, posing the simple question: “Where is everybody?”)

Observation is a funny thing.  Even when it comes to criminal law, observation is just as important as it is in science.  The police cannot just go off to search a home based upon a hunch, they have to observe some bad stuff and report it to a judge who may then issue a warrant.  If you’ve seen as many criminal cases as I have in my 25 years of defending, one thing is for certain:

The police are watching. Continue Reading

conference-pic-e1526767430499-300x208Awww, come on guys, it’s so simple maybe you need a refresher course.  It’s all ball bearings nowadays.  Now you prepare that Fetzer valve with some 3-in-1 oil and some gauze pads, and I’m gonna need ’bout ten quarts of anti-freeze, preferably Prestone“.  — Fletch (film, Chevy Chase)

Have you ever met someone who thinks they know what they’re talking about, yet something in your gut (your BS detector) tells you they don’t really have it all figured out?

Scientists are notorious for this sort of thing.  They throw around a few equations, add a few big words, and we all assume they’ve figured something out.  Cops are as bad as scientists when it comes to acting like they’ve got it all figured out—but more on that later.

There are several scientific fields that can trigger a reasonable person’s BS detectors.  For example, evolutionary psychologists claim that people love golf because the open spaces make humans feel safe.  Hum.  People get paid to come up with this stuff?  How do I get in on this?

Neuroscience has jumped into the pure speculation game, as they now claim that everything is reducable to brain activity.  Hey, you fell in love and finally engaged in that special first kiss?  Well, it really isn’t that special, neurologists will tell you that they’ve found the “first kiss” neurons located in the bottom right corner of the frontal cortex.    Oh, you had a religious experience?  No you didn’t.  In the most condecending tone imaginable, some neurologist will pat you on the head like you’re their pet doggy, and explain that this life changing experience was just temporal lobe epilepsy.

But when you dig deeper into these so-called scientific explanations, they’re really not explanations at all.  They label things, sure enough, much like an engineer can label the data transmissions of your home modem.  But they’re not really telling you anything about what’s really happening.

Recently, I saw a neuroscientist “explain” how they’ve figured out what is going on during a psychedelic experience.  Psychedelic drug research is super interesting, and it utilizes drugs like psilocybin (mushrooms), MDMA (extasy), and DMT/Ayahuasca.

Anyway,  the “breakthrough” discovery is this: all of these drugs react on our brain’s 5-HT2B receptor.  Amazing, right?  That’s an impressive word, 5-HT2B receptor.

But there’s only one problem with this discovery.

Once a psychedelic drug hits the brain’s 5-HT2B receptor—we know absolutely nothing about what happens next.  It’s like some doctor “discovering” that once I drink some water that same water will eventually come out another orface.  Ok.  But what happens in between?  Does the water go to a kidney or two?  Is there any sort of processing?  The only thing we know about the brain’s reaction to psychedelics is that they hit the 5-HT2B receptor.  All knowledge ceases right there.

Still, its impressive to listen to neurologists toss around the term “5-HT2B receptor”.  Just saying this word increases your perceived IQ by several points, but fundamentally, this “discovery” sounds only slightly more credible than Fletch’s explanation of the Fetzer valve.  Continue Reading