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Articles Posted in Trafficking

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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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).

suitcase.jpgWhen will people ever learn? I try to tell them, even at the risk of losing business (yes, I have my unselfish moments). But nobody listens, and we Orlando criminal attorneys continue to stay in business… So it bears repeating–drugs in the trunk are never a good thing, especially if you decide to drive over the speed limit. But, as fate would have it, our favorite constructive possession laws kick in to save the day. Let’s take a look at the action up close…

In Gizaw v. State, 2011 WL 234024 (Fla. 2nd DCA 2011), the defendant was stopped for speeding, and eventually found guilty of various charges arising out of the marijuana found in her trunk, including trafficking in cannabis, possession of a conveyance used for trafficking, and possession of drug paraphernalia. Gizaw gave police permission to search, and police admitted that the passenger’s current probationary status for a drug offense prompted them to request said search.

The search of the trunk revealed men’s jeans, some college textbooks that belonged to Gizaw (she admitted to being a college student), and a suitcase full of cannabis. No fingerprints were recovered, no evidence the suitcase belonged to Gizaw, and she denied all knowledge of the drugs. She had $939 cash on her person, and the passenger had the keys to the car all day (she did not know how the suitcase got in the trunk). The jury convicted her of all counts, and she was sentenced to 42 months prison.
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pills.jpgHere in Orange County and Seminole County, trafficking in hydrocodone cases are filling up our prisons with people that have no business being labeled a criminal. Yep, your tax dollars hard at work, locking up drug addicts with money that could be spent on books and teacher salaries. As you know, Florida is way behind the times on pill trafficking laws, as our Federal government abandoned trafficking sentences based upon the entire weight of a pill long ago–and instead bases sentencing on the weight of the illegal substance contained within the pill (wow, science, weights and stuff … didn’t we learn how to correctly weigh something in the 6th grade?) Since when does the Federal government take the lead on money saving, rational behavior?

Anyway, back to the story. The First District overturned a trafficking in hydrocodone conviction, and it went down like this. Defendant Ayotte spent the evening with his girlfriend at a local bar. So far, so good. An officer observed defendant show some pills to another person and possibly exchange them. Not so good. Defendant denied such actions, testifying that the pills in his pocket were being held for his girlfriend because her outfit did not have pockets (trafficking amount of pills by Florida weight standards, not trafficking by Federal weight standards). Ayotte v. State, 2011 WL 263163 (Fla. 1st DCA 2011).
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cocaine lines.jpgHow many drug possession cases in Orlando arise out of “constructive possession” situations? A lot. As I’ve stated many times, constructive possession cases are tough to prove. This is especially true when the drug possession arises out of a home search. Such was the case in Bennett v. State, 46 So.3d 1181 (Fla. 2nd DCA 2010). Corey Bennett was convicted of trafficking in cocaine, possession of marijuana, and possession of drug paraphernalia, all based on circumstantial evidence that he was in constructive possession of the contraband found in a home in which he occasionally stays.

It all started with Bennett being wanted on felony charges, although no arrest warrant had been issued. A Tampa police officer received a tip that Bennett could be found at a certain home address. This residence was comprised of a main house in the front, and a second dwelling, a cottage, in the rear. Bennett’s grandmother and other family members lived in the main residence, but the State presented no evidence to show who lived in the rear building, which was a small, one-bedroom studio with a living room, kitchen, and bath.

As the officer made his way to this residence, the tipster reported that Bennett had run to the rear cottage, so when the officer arrived, he proceeded to the cottage and knocked on the door. Receiving no response, he looked through a window into the bedroom and spotted Bennett peeking out from the adjoining bathroom. The officer ordered Bennett to come out, but he refused, so the officer came thru the window and arrested Bennett. In the living room and bedroom, the officer saw trafficking amounts of cocaine, and cannabis, out in plain view. No drugs were found on Bennett’s person.
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cocaine.jpgJust turn on your TV, and take note of all the shows like C.S.I., and NCIS, and on and on and on, that deal with scientific evidence. Sure, some of this stuff is pretty far out, after all, it would be a pretty boring show if all they did was fingerprint a crime scene and match the prints. Yet, scientific procedures rarely turn out to be as accurate as portrayed on tv. And, the most simple scientific procedures, such as weighing evidence, can be completely worthless if not done properly. For those familiar with Orlando DUI law, you may expect a challenge to the calibration of the scales used to weigh the drugs (a la Intoxilyzer motions), or challenges regarding the certification of chromatographs used to identify the drugs. But no, the problems were going to discuss arise out of pure and simple human error. And in Central Florida criminal cases, any Orlando criminal defense attorney can attest to the fact that there’s plenty of lab reporting problems (does the weight a cop put in the arrest report ever match FDLE’s testing?). Let’s take a look at one such case.

In Purvis v. State, 43 So.3d 734 (Fla. 2nd DCA 2010), Purvis was convicted of trafficking in cocaine by possession of more than 400 grams (this carries a 15 year minimum mandatory prison sentence, for those keeping score at home). The problem really came down to the way the cocaine was handled by the state’s chemist. The 400+ grams in question came in as five separate containers of cocaine, with each container a different weight, each containing 4-7 bags inside. There were a total of 27 separate bags of cocaine. The state chemist decided to dump all of the cocaine from each container into one big pile, and found that each big pile tested positive for cocaine. Ouch. The problem here is, now that the chemist has blended the baggies together, how can you prove/disprove that some of the baggies contained some other white powdery substance? I guess we’ll never know, because they’re now all mixed up.
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front door.jpgArrests happen. Unfortunately, some of these arrests occur after a citizen signs a consent to search form. But, signed “consent to search forms” don’t mean much when they’re obtained after illegal police activity. I know what you’re thinking, “yea, I knew that”, but as a criminal defense attorney here in Orlando for the past 17 years, I never grow tired of discussing cases where police activity has been deemed illegal. Such issues were addressed in the recent case of Diaz v. State, 34 So.3d 797 (4th DCA 2010).

Diaz was arrested for trafficking in heroin and possession of drug paraphernalia. His arrest arose out of undercover police surveillance of a house where police allegedly witnessed a hand to hand drug transaction (if I had a nickel for every time an officer claims to have seen a hand to hand transaction…). Eventually , police make an arrest of one of these persons as she exits the home. Her arrest is only five feet from a wide open front door. Thus, the police see an open door, hear people inside, and conduct a “protective sweep” (search) of the house both for their “well being, [and] making sure no one is armed”.

Trafficking amounts of heroin were found in a back bedroom where Diaz was also located. Diaz and his girlfriend did grant the police “consent” to search via their signed consent forms (they were ‘uncuffed’ for a moment to sign the document, how kind of the police). Diaz argued that the officers had no right to enter his home to conduct a protective sweep since the initial arrest occurred outside the home and the officers had no reasonable belief, based on specific and articulable facts, that the home contained persons that posed a danger to them. Thus, any consents given after the illegal entry should be considered invalid. The trial court didn’t buy this argument, and convicted Diaz after his plea.
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