Articles Posted in Trafficking

perscription pill bottleI have a few statistical facts for you, and I’m using the term “statistical” and “facts” rather loosely.

Four out of every five citizens who are arrested for drug trafficking are victims of entrapment.  Technically, five out of every five citizens arrested for drug trafficking believe they are victims of entrapment, but we’re not concerned with beliefs here, only the facts.  Entrapment can be difficult to prove, because most judges and prosecutors won’t admit their beloved agents could ever permit an informant to manufacture a crime, rather than detect a crime.  Well, I hate to break it to you, but it happens all the time.   To understand why entrapment is prevalent in Florida, it’s important to understand how the game is played.  Most entrapment cases involve confidential informants attempting to wiggle their way out of a serious charge, so that’s our focus.

The game begins when someone is arrested  on a trafficking charge involving mandatory prison time (often a mandatory minimum of 25 years in prison—about 12 years more than the average child rapist receives).   The defendant who decides to become a snitch is usually a first offender, desperate not to spend the best years of his life behind bars.  Let’s face it, this kind of time hanging over your head would cause most folks to do things they would otherwise be incapable of doing.  So, with no law enforcement training, only a desire to “do anything to avoid going to prison”, law enforcement unleashes their untrained informants into Florida’s streets.   These defendants/informants are now charged with a task that is typically reserved for “highly” trained undercover officers—set up drug deals.  Not just any drug deal.  Big drug deals.  Yes, “big” can mean “dangerous”, a story for another day.  The technical term for this untrained undercover work is “substantial assistance”.

An entire book could be written about substantial assistance deals, but who has the time for that?  Here’s the three sentence version.  A substantial assistance deal is a plea agreement with extra clauses providing the defendant with guaranteed “credit” against his minimum mandatory sentence for every arrest he manufactures.  For example, if a defendant is facing a 25 year minimum mandatory for trafficking in oxycodone, the defendant may receive 5 years off of that sentence for every 25 year minimum mandatory arrest he manufactures.  If the set up isn’t a big enough deal, the credit may only be for 3 years off, or 2 years off, and so forth, and so on.  Yes, there are problems determining how much credit is due.  For example, if a defendant’s efforts lead to the arrest of eight people—shouldn’t the defendant be given credit for all eight arrests?   Continue Reading

old scale.jpg[Whenever I can’t come up with a catchy title for a topic I’ve already covered a thousand times, I simply add the word “again”, or “part 2” or “revisited”. I first wrote about this topic in July of 2012, in “How to Weigh Drugs in a Trafficking Case“.]

We need experts to tell us how to do anything more complicated than finger counting. Some of this expert testimony is simple, and necessary if we want to keep our government in check (police work is only easy in a police state, right?). One of the more common cast of characters to appear on behalf of the State in drug cases are FDLE’s lab chemists. The good news is, most of these folks are fully capable of putting drugs into a machine, and reading the results to a jury–much in the way a Wal-Mart cashier scans your products and tells you how much they cost. Unfortunately, not all of these folks truly understand how their machines regurgitate test results; and when you ask them to explain the science, they give a look reminiscent of a dumbfounded Ben Stiller in Zoolander. A classic comedy, for sure, but not something that should be remotely similar to expert scientific testimony. Anyway, some lab analysts simply do not follow the most basic of scientific tasks. Today’s simple scientific task involves testing a controlled substance before weighing it. Weight is important. The weight of a substance can mean the difference between a lengthy prison sentence, and a probation sentence.

So, again, it is with great joy that I bring you a case in which our government cannot handle the most basic scientific procedure.
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pills in bottle.jpgminimum mandatory sentences are simply heavy handed and arbitrary…we should not have laws that ruin the lives of our young men and women who have committed no violence.” United States Senator Rand Paul (R-Ky)

Finally, a much needed modification to Florida’s drug trafficking laws for the painkillers hydrocodone and oxycodone (found in Florida Statute 893.135). For many years, your taxpayer dollars have been going to warehouse people in prison–not for being hardened criminals, but for having a pain pill addiction. And, it really doesn’t take much to end up in prison for painkillers. Under current drug trafficking laws, a mere 7 pills can trigger a minimum mandatory 3-year prison sentence (and, a mandatory $50,000 fine. Yes, only $120 in pills gets you a $50,000 fine):

HYDROCODONE – current law (based upon an average pill weight of 0.65 grams):

7 pills = 3-year mandatory prison term (4 grams)
22 pills = 15-year mandatory prison term (14 grams)

HYDROCODONE – new law, taking effect July 1st, 2014
7 pills = NO MANDATORY, NO TRAFFICKING, just a possession of hydrocodone charge 22 pills = 3-year mandatory prison term (14 grams)

And, the trafficking laws changed for oxycodone as well.

OXYCODONE, current law (based on average pill weight of 0.13 grams):

31 pills = 3-year mandatory prison term (4 grams)
108 pills = 15-year mandatory prison term (14 grams)

The new law governing OXYCODONE, taking effect July 1st, 2014, is as follows:

31 pills = NO MANDATORY, NO TRAFFICKING, just a possession of oxycodone charge 53 pills = 3-year mandatory prison term (7 grams)
108 pills = 7-year mandatory prison term (14 grams)

So, what is considered a trafficking offense today will no longer be a trafficking offense next week. A first degree felony trafficking will be reduced to a third degree felony possession of a controlled substance, as listed above. That’s a step in the right direction.
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grow house.jpgAs you know, I’ve been practicing criminal defense here in Orlando for twenty years. The time has flown by, doesn’t even seem possible. And, I’ve never ever been a prosecutor–only defense, all these years. Basically, I’ve heard a lot of stories. Some true, some not-so-true. I hate to say it, but we defense attorneys get a good laugh at the stories that folks think will pass as a “defense”. This next case review qualifies as just such a story.

In Balsuto-Rodriguez v. State, the defendant was found guilty of trafficking in cannabis–because, he was present at a grow house. 95 So.3d 403 (Fla.App. 3rd DCA 2012). Now, what’s funny is the defendant’s claim that he had nothing to do with the hydroponic grow house operation, he was simply burglarizing the home when the cops showed up! Yea. So the defendant admitted to a burglary of a dwelling, but denied a trafficking in cannabis. This one, I haven’t heard before. Here’s how it went down.

This story began like any other grow house search warrant case. The police received a tip. The police then conducted surveillance, and once they gathered enough suspicious facts, they obtained a warrant and forced their way into the home for a search. Inside, the cops discovered at least 250 marijuana plants, all growing in plain view, hydroponically. Usually, drug unit will arrest everyone found on site for at least three charges: cultivation of cannabis, possession of cannabis with intent to sell or distribute, and trafficking in cannabis charge. This last charge, trafficking, depends upon the number of plants found, or the weight of the plants. A minimum of 300 plants or 25 pounds must be proven to get a trafficking in cannabis conviction.
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oktoberfest.jpgConspiracy theories are everywhere, especially here in Orlando. If you can dream up a conspiracy, someone out there has already written a book on the subject. And here’s the funny thing–it’s not just the general public that subscribes to these theories, law enforcement officers are just as bad, probably worse. It is not a crime to hang out with a drug dealer. It is not a crime to have friends that commit crimes (if that were the case, all of Wall Street would have gone down with Bernie Madoff). Even though none of us want our kids hanging out with the wrong crowd, law enforcement takes it to a whole new level.

The case is Betsy Dieujuste v. State. 86 So.3d 1209 (Fla. 4th DCA 2012). Betsy was convicted of conspiracy to traffic in oxycodone. It all started with an undercover operation by the Delray Beach Police Department, and an undercover deal they arranged to purchase 50 oxycodone pills. The deal was not set up with Betsy, and there was no evidence that she planned the transaction. The incriminating circumstances involved the fact that she was sitting in the rear of a vehicle involved in the drug deal. Later, Betsy moved to the front seat, drove off in the drug dealing car, and moments later she was confronted by the police. Ms. Dieujuste gave her purse to the police, and they found $400 cash in it, all of which were marked bills from the drug transaction moments before. Betsy told the police that was her rent money. Also, the purse contained a valid prescription bottle containing 46 oxycodone pills—the same type of pills in the drug deal (but no scientific evidence was presented that these pills matched previous transactions).
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scale_measure.jpgWeighing stuff is pretty simple, right? Just put stuff on a scale, watch for a number to pop up on the screen, and bam–you’ve got a weight. When it comes to weighing drugs in a drug trafficking case, it’s not so simple. Everyone has watched the crime show de jour, and been dazzled by the high tech gadgets highly paid actors use to find evidence. Unfortunately, real life is not as high tech. Unfortunately, real life government crime fighters are not always as thorough as their show biz counterparts.

Our real life crime drama comes from the case of Jackson v. State, 76 So.3d 1130 (Fla. 4th DCA 2012). Jackson was convicted of trafficking in cocaine greater than 200 grams, but less than 400 grams, and possession of cannabis. For those of you keeping score at home, this charge carries a minimum mandatory prison term of 7 years, and a minimum fine of $100,000. Even though the charge carried a minimum of 7 years, the judge gave Jackson 15 years on the trafficking (and time served on the possession of cannabis…gee, how merciful…).
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parcel.jpgEver notice that sometimes, your mail takes a tad longer to arrive than it should? It could be that Big Brother decided to pull your package from the normal delivery process, as part of their ongoing efforts to detect drug trafficking via Express Mail. What you might not expect is that our Constitution protects our mail from government intrusion–though there are some red flags that will convince a judge to allow the post office to open a package.

Here’s a quick breakdown of what happens in a drug trafficking case involving mailed packages. When a package is taken out of it’s normal mail cycle, it is considered “seized”, and as such, law enforcement must have “reasonable suspicion” to do so (as you know, our government may only seize our stuff when they have a reasonable suspicion that we’re committing a crime of some sort). Once the package is ‘seized’, it may be examined by a drug dog, and a warrant will be issued to open the package should the dog alert for the presence of drugs (typically, the post office will line up 6 packages, five which they know do not contain drugs, and the suspected package). If drugs are found, a “controlled delivery” of the package will be conducted by undercover officers. Basically, a controlled delivery is simply an undercover cop dressing up as a mailman, driving the mail truck to the address, and even delivering mail to neighbors to make the delivery seem more believable. Whoever accepts the package will be arrested. In addition, a judge may also issue an anticipatory search warrant of the entire home to which the package was delivered.
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prescription bottle.jpgHere in Orlando, possession of oxycodone arrests are as popular as crack used to be. The hunt for pill poplers is our very own modern day witch hunt (don’t forget sex offenders, they’re hunted as well…). Often times, undercover cops (especially Seminole County) will camp out in the parking lots of CVS and Walgreens, just waiting for someone dumb enough to sell or deliver pills right there in public. And, it only takes a few pills to get a minimum mandatory prison sentence on charges of trafficking in oxycodone. But, there is some good news, and it comes in the form a decision from the 5th District Court of Appeals. Let’s dig right in.

The case is Celeste v. State of Florida, 2012 WL 511303 (Fla. 5th DCA 2012). Celeste was charged with trafficking in oxycodone, possession of a controlled substance without a prescription and possession with intent to sell. The jury convicted Celeste of trafficking in oxycodone, even though evidence (testimony, pharmacy records) was presented that he had a valid prescription for oxycodone. Actually, he was caught with 48 pills, but he had a monthly prescription for 180 pills. The State agreed that the prescription was valid, so why the conviction? Because, it’s all about the term “trafficking”.

Trafficking isn’t just about possession, though it can be. Trafficking includes sales, purchases, or delivery of pills. So, even though Celeste had a valid prescription, the cops saw Celeste on his bike “talking” with a person pumping gas. The cops thought, ‘Oh boy, this kid’s definitely dealing drugs’ (great police work!). As the officers approached, Celeste put something away in his pocket–and you know the rest of the story. The police searched him and found 28 pills in a bottle (unlabelled) and another 20 pills in a plastic wrapper, $260 cash (all $20 bills), along with a list of names and phone numbers. The officers believed Celeste was either selling the pills, or delivering the pills, and if they could prove either one he would be guilty of trafficking in oxycodone.
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marijuana_plants.jpgRemember Arsenio Hall? Of course you do! Don’t deny it. Arsenio had this saying, “Things that make you go Hmmm!”. C+C Music Factory also had a hit song by that same name. So, why would a Fourth District Court of Appeals here in Florida cite this bit of wisdom from Arsenio & C+C Music Factory? I’ll tell you why.

I know you’ve heard this before, but I’ve been defending criminal cases here in Orlando for 18+ years. After reading one bogus police report after another, Arsenio’s words ring true. It’s that gut reaction telling your brain “I know this cop’s story is bogus, but how can I get the judge to recognize the bogosity?” The appellate judge in Hernandez v. State (Fla. 4th DCA, January 2012, No. 4D10-4186) had this same reaction when he encountered a bogus “consent” to search story given by law enforcment. Hernandez was found guilty of Trafficking in Cannabis, Cultivation of Cannabis, and Possession of Drug Paraphernalia. The trial court denied his motion to suppress. Basically, his home was searched by a bunch of cops that didn’t have enough evidence to get a search warrant, so they “claimed” Hernandez consented to the search of his home. Hernandez’ home was a grow house, obviously containing numerous marijuana plants.

The odd thing about this so-called “consent” is that the cops admitted that Hernandez told them “No” twice. Both times, Hernandez told the cops to “get a warrant.” Then, if the cops are to be believed, Hernandez caved in and invited them in to find his indoor weed growing wonderland. Here’s a brief part of Judge May’s response, enjoy:

“But one must wonder why, after twice telling the police to get a warrant, the defendant would invite law enforcement on his property, put the dog away, and kick down his own door to allow law enforcement to have a good look at his indoor marijuana grow room–providing sufficient probable cause for a search warrant. As Arsenio Hall used to say, “Things that make you go Hmmm!”.” [emphasis in original]
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courthouse2.jpgWARNING: THIS IS SOME BORING, BUT NECESSARY CRIMINAL DEFENSE PRACTITIONER ANALYSIS, DO NOT READ WHILE OPERATING HEAVY MACHINERY

With the federal court’s decision in Shelton finding Florida’s drug laws unconstitutional, and a Florida Circuit Court Judge in Dade County agreeing this week to dismiss over 30 felony drug possession cases, the next logical question is–does Shelton carry over to trafficking, and other drug cases?

The Shelton decision was actually on a delivery of cocaine charge. But technically, the decision declared Florida Statute section 893.13 unconstitutional. The trafficking laws are found in a different section, 893.135. One major difference between 893.13 and 893.135 is that 893.13 does not contain the mens rea or “knowing” element–that element was intentionally left out by the legislature (thus–oversimplifying things a bit–it was found unconstitutional).