Articles Posted in Weed, Marijuana cases

Oh the times, they are a changin’.cannabis plant

Every time I walk into the Orange County Courthouse, I see some guy asking me to sign a petition to “put medical marijuana on Florida’s Ballot”.  Somehow, whenever I’m dressed in my work uniform (suit, tie, and briefcase, don’t forget the briefcase), the petition signing hawks leave me alone.  It may be that too many “suits” turn out to be jerks, so they just don’t bother.  I understand that, and agree.  But, if I had the time, I would chat up the “medical marijuana sign holder” and tell him that medical marijuana is perfectly legal in the State of Florida.  It has been for almost a year now.

Most people don’t realize this.  Medical marijuana is legal in Florida.  I’ll keep saying it until everyone takes down the signs asking that we make it legal.  It’s legal.  Governor Rick Scott signed the law back in 2014, and it took effect on January 1, 2015.  The law is found in Florida Statute 381.986, entitled “Compassionate use of low-THC cannabis”.

Now, the question for today may sound like another episode of Inside Baseball, and for that, I’m slightly sorry.  It is the effect this law has on probable cause that should concern we citizens.  Law enforcement may not search your person, home, or vehicle without a warrant so long as they have “probable cause”.  Nine times out of ten, probable cause involves some officer telling his buddy “You smell weed?  Yea, I smell weed too, let’s search this place”.  Five times out of ten, this odor is detected after a citizen denies the officer permission to search.   Up until January 1, 2015, probable cause based upon the smell of weed made a bit of sense, as marijuana was illegal in any form up until that point.   Continue Reading

no trespassing.jpgI grew up in a great neighborhood, full of kids who liked to play kickball and soccer. Now, when you combine balls and kids, you end up with broken windows, and having to jump fences to retrieve a stray ball. The problem is, some neighbors were downright nasty. You did not want to go into certain neighbor’s yards. So, those retrieval missions were tension filled, and only the bravest of us would risk retrieval from a grumpy neighbors backyard (basically, someone other than myself). My point here is that, even as a kid, we were able to determine which houses seem inviting, and which houses seemed off limits. And with that preamble, let’s delve into the case of the day.

In Bainter v. State, the defendant was charged with cultivation of cannabis (a grow house, basically). 135 So. 3d 517 (Fla. 5th DCA 2014). Bainter lived on several acres of property, all of which was surrounded by a barbed-wire fence. Did I mention barbed-wire? Would you knock on the front door of a house surrounded by barbed-wire? Anyway, there’s more. The driveway had a chain-link push gate, and a “no trespassing” sign. Supposedly, the police received an anonymous tip that marijuana was being grown in the home. Given the barbed-wire fence, I don’t think this would come as a surprise to anyone that “something” was going on inside this house. Could be kids in there whose pictures are on the sides of milk cartons, could be ten other things–but “something”, right?

In this case, Bainter was the victim of a common police tactic known as a “knock and talk” [see below]. The police did not have a warrant. The police did not have consent to enter the property. So, they knocked on the front door, and eventually seized a bunch of cannabis. As any good defense attorney would do, Bainter’s attorney filed a Motion to Suppress, based upon our Fourth Amendment guarantee “to be secure in [our] persons, houses, papers, and effects, against unreasonable searches and seizures”. (United States Constitution, in case you didn’t know)

The trial judge who heard the motion to suppress denied the motion because the front gate was open, reasoning that, at the time of the government’s entry, “the gate was clearly open”. Bainter, at 519. This judge assumed that an open gate translates into no expectation of privacy, everybody–come on in! What the judge failed to realize is that we American’s have a right to our privacy, and Bainter’s home clearly established that via its “no trespassing”‘ signs, chain linked fencing, and barbed-wire (should be a dead giveaway, right?).
Continue Reading

cannabis plant.jpgFor years, we’ve been kicking around the boundries of state to state travel for citizens who are medically prescribed marijuana. Americans take for granted our lofty right to travel and assume that, once we pick up legally prescribed drugs at the pharmacy, we can road trip anywhere in the country with those legal prescriptions. When it comes to marijuana, that’s just not the case.

Florida Statute Section 499.03 provides for a “prescription defense”, in that we citizens cannot be convicted for “the possession of [a] drug [that] has been obtained by a valid prescription of a practitioner licensed by law to prescribe the drug”. Sec. 499.03(1).

Shouldn’t the plain language of this Florida Statute include medical marijuana? It includes drugs made by Big Pharma, like Oxycodone or Hydrocodone. You can bring these prescriptions anywhere in the country. But the same cannot be said for marijuana. A recent Brevard County case highlights the reasoning behind this. In State of Florida v. Zepeda (Brevard Co. 05-2013-MM-61469-AXXX-XX, April 7, 2014, FLWSUPP 2107ZEPE), the Defendant filed a Motion to Dismiss pursuant to Florida Rule 3.190(c)(4), a motion that required her to admit that she possessed the marijuana, but further claimed that “her possession of the cannabis was a result of a valid prescription”. Sounds good so far, right?

First of all, the Motion to Dismiss was denied for technical reasons, as well it should have been (and I’m not one to say this sort of thing, but the judge is 100% right on this one). These motions must be sworn to, and Zepeda’s motion was not (Practice Tip: if you don’t want to swear to a Motion to Dismiss under 3.190(c)(4), you can always file an unsworn motion to dismiss under 3.190(b)).

Second, the motion to dismiss was denied because the prescription card presented as evidence in support of the motion was obtained three weeks after the arrest. Ouch. Lucky for us, the trial court briefly entertained this interesting issue, even though the judge had plenty of reason to simply deny the motion for the above reasons.
Continue Reading

driving.jpgPlease permit me break off a piece of wisdom to anyone driving around Central Florida with drugs in their car: try not to drive like a jerk. That’s right. I’ve defended a zillion drug cases in Orlando that start from a simple traffic citation. Why blow thru a stop sign with a trunk load full of drugs? Why partake of a drag race from every stoplight when you’ve got several hundred illegal oxycodone’s in your pocket? As Timothy B. Schmit likes to sing, “I can’t tell you why”.

The real life example of “idiot driving=drug charge” comes to us via the case of Williams v. State, 110 So. 3d 59 (Fla. 2d DCA 2013). Ms. Williams was speeding on the highway, and driving recklessly, so the Tampa police pulled her over. The car was a rental, and Ms. Williams had two passengers with her. When the police approached the car Ms. Williams became extremely nervous, so much so the police offered her an EMT. Then, the officers smelled marijuana coming from the car (oh, that’s why you’re so nervous). In case you didn’t know, the odor of marijuana gives the police probable cause to search just about anyone, anything, anywhere. Here’s the three most common odor claims of police:

1. Odor of “burnt” cannabis. To me, smelling something that’s already burnt is simply evidence of a completed crime–not a crime that’s still being committed. Much like a person under the age of 21 with alcohol on their breath, the odor of burnt cannabis just tells you that the dirty deed is done. So, if you’re smelling an already committed crime, why search for “evidence” that has probably been transformed to the legal substance of carbon ashes? Unfortunately, most judges do not agree with me here, and as such, the odor of burnt cannabis gives officers probable cause to search just about anyone, anything, anywhere. Body cavities? Sure, you could hide weed up there. Really, does this happen? Yes. Really, does this happen in America? Yes.
Continue Reading

Can a government drone use it’s “x-ray” vision to take a peek inside of your home, and then use that information to obtain a search warrant of your home? Can a spy satellite zoom in on your backyard, and use that information to have swarms of police invade your home at 4 a.m.? Or, can the police bring a drug sniffing dog up to your front door and use the dog’s “alert” for the presence of weed as a basis to have a judge issue a search warrant? This random porch sniff was really happening in the State of Florida. Believe it or not, drug sniffing dogs were brought up to numerous porches, and the dog alerts were used against the homeowner. Is that legal? Well, this scenario played out in real life, through many court rooms in Florida, all the way up to the United States Supreme Court.

The case is Jardines v. State, 73 So. 3d 34 (Fla. 2011). Miami police received an unverified tip that Jardines was running a marijuana grow house in his home (is there any other type of grow house, other than marijuana?). Based upon this tip, the police staked out the joint for a while, watching who was coming to and from the home. Typically, the government doesn’t bust a grow house instantly, they want to see who the players are–what they look like, what kind of cars they drive. They’ll even follow these folks to other locations to possibly find more grow houses.

binoculars-2-.jpgAt some point, an officer decided to call in a drug detection K-9 to sniff Jardines front door. Sure enough, this dog alerted to the base of the front door. Now, I have a sneaky suspicion this dog alerts at every location these officers are staking out for grow house purposes, but how we’ll ever know whether or not this dog alert is legit is a discussion for another day (they did find plants inside, so…). For purposes of this analysis, we’ll just agree that the drug dog did, in fact, alert to the base of the front door. And, this alert from the dog was used to obtain a search warrant for the home. And, no surprise here, a search of the home located marijuana plants. Jardines was charged with possession of marijuana, cultivation of marijuana, and the laundry list of other crimes that come with running a grow house.
Continue Reading

weed baggie.jpgThere are plenty of bogus charges out there, and one of my favorites is Possession of a controlled substance with the intent to sell or deliver. In my twenty (plus) years of defending criminal cases in Orlando, I’ve seen plenty of cops, judges, and prosecutors that truly do not understand the law on intent charges. Basically, a possession with intent to sell charge is really just a simple possession charge upgraded due to the quantity of drugs, the packaging of the drugs, or the money found on the citizen. The charge is always accompanied by the arresting officer’s “expert” opinion that weight, packaging, and cash is consistent with drug dealing. So, let’s take a look at a real life example, like we always do.

In Alleyne v. State, 42 So.3d 948 (Fla. 4th DCA 2010), the defendant was charged with possession of marijuana with intent to sell within 1,000 feet of a school. Alleyne ran when police rolled up to a convenience store, and as he ran a brown bag flew out of his hand. Inside the bag was 18 individual plastic Ziploc baggies containing marijuana, a rolled up $20 bill, with another $36 was found in Alleyne’s pocket. The total weight of 18 baggies was less than 20 grams (a misdemeanor, fyi).

At trial, an officer testified that the “amount that Mr. Alleyne had on his person was not for personal use, it was for drug dealing.” Id. The officer was convinced these 18 baggies of marijuana could not have been for personal use, “[n]ot the way it was packaged, not the way he was standing, and not the way the incident took place.” Id.at 949. Now, for those of you who have not participated in many drug trials, let me tell you, testimony from a cop that the drugs were ‘packaged consistent with drug dealing‘ never makes much sense, because there’s always two sides to a transaction. My kitchen is full of stuff that is packaged for sale. My unopened box of Fruit Loops is packaged for sale. Half of my kitchen pantry is packaged for sale, but that doesn’t mean I’m running a grocery store. Why can’t somebody buy 20 small baggies of weed? You can still buy a case of beer these days, right? This so-called expert opinion regarding drug packaging is really just an excuse to enhance a possession charge into a three times more serious possession with intent to sell or deliver case (a typical possession charge is a third degree felony, punishable by up to 5 years in prison, by adding the ‘intent to sell’ language, you’ve increased the max prison to 15 years).
Continue Reading

home florida.jpgHave you read our Constitution? In case you haven’t recently, there’s nothing within it that requires American citizens to open their door when somebody knocks. Opening your door to a stranger is optional. Why people feel compelled to answer the door is beyond me. And to add insult to injury, I’m not sure why folks running illegal grow house operations would be so eager to answer their door either. And since we’re discussing grow houses, a little explanation could be helpful here.

Grow Housesare simply residential homes in which every room is converted for marijuana cultivation. The operation lasts 4 months, and vacant home owners are offered $10-20,000+ dollars for the temporary use of their residence. The residence is left in shambles following the harvest–holes are cut in many walls for irrigation pipes, dirt everywhere. The operation requires extra air conditioners to cool down all the hot grow lights. The energy usage can throw up red flags to the electric company, as energy usage far exceeds normal usage–thus many operators ‘steal’ power by altering power feeds to the home so as to mask their high power consumption, etc.

Our discussion of grow houses centers on the case of State of Florida v. Roman, 103 So.3d 922 (Fla. 2nd DCA 2012). Roman is accused of running a grow house. She was charged with trafficking in cannabis, possession of a prescription drug (alprazolam), possession of drug paraphernalia, and larceny with relation to a utility–just to name a few. You might wonder to yourself, how did the police find all these drugs? A good old fashioned illegal search, and a supposedly legal search warrant. It all started as many grow house cases start, with a tip to law enforcement. Based on this tip, the police began running surveillance on the property. Once the police notice a person showing up to the home, they will (eventually) knock on the front door. No exception here. The police eventually notice Ms. Roman pull up to the home and enter it, so they approach the front door.
Continue Reading

throw down.jpgLet’s face it, Americans like their drugs. Especially weed. For some folks, their entire existence revolves around the substance. So, it can be tough to throw it away when the cops are approaching. And, that’s just what happened in our real life example of the day, F.Q. v. State of Florida, 98 So.3d 783 (Fla. 4th DCA 2012). (fyi, if someone is underage in juvenile court, they use the defendant’s initials, rather than the actual name).

Here’s the facts: F.Q. and his friend were chilling at an abandoned house, as young kids tend to do. Abandon houses are just magnets for kids, and cops. All of the sudden, the cops show up out of nowhere. F.Q. throws down one baggie that appears to contain marijuana, and F.Q.’s friend throws down another two baggies of marijuana. So, three baggies are recovered. F.Q. is arrested and charged with possession of marijuana. He takes the case to trial. At trial, the prosecution only admitted into evidence one of the three baggies. You see the problem here?

The State successfully proved that the one baggie admitted into evidence was, indeed, weed. But, there was no testimony at trial regarding which baggie was dropped by F.Q. Furthermore, there was no testimony linking F.Q. to the baggie admitted into evidence. As such, the appeals court threw out F.Q.’s conviction for possession of marijuana for several reasons, including the fact that “the State did not prove that the baggie that was admitted into evidence was the same baggie that F.Q. dropped. Further, the circumstantial evidence of actual possession ‘created nothing more than a strong suspicion … of guilt’, requiring the State to prove constructive possession.” Id. at 785. Ouch.
Continue Reading

flags.jpgDo you know how hard it is to get into a communist country like North Korea? How about the former Soviet Union, back during the Cold War? How about getting into Cuba (as an American, of course)? I traveled to Germany back in the late eighties when there was still an “East Germany”. I couldn’t get in. You should have seen the soldiers with big AK’s patrolling “he wall”, it was scary.

This is the story of the United States government being a big bully. This is the story of a government that could use a few extra tourist dollars, and yet it refuses such tourist dollars for no good reason. We begin with fantasy football. Four million fantasy football fans competed this football season for Bud Light’s top prize, a trip to the Super Bowl in New Orleans.

And guess what, a northern brother from Canada won the trip. Can you imagine the excitement? I don’t think you can. Canadian Myles Wilkenson won the trip. As expected, he packed his bags and headed to New Orleans. Unfortunately, the United States government didn’t let him in the country. Why? Was he on our “no fly list” like Senator Ted Kennedy? What could possibly keep a Canadian citizen from entering our country to spend money?

Weed. Now, I’ve had some clients caught trafficking a tractor trailer full of weed–and if you’re such a person–I can understand why some countries would not want you coming to visit, given your proclivity to deal in massive amounts of controlled substances. But Mr. Wilkenson was not that guy. His possession of marijuana charge dated back to 1981. That’s right, 1981, more than 30 years ago. And, he wasn’t caught with a truckload of weed. He had two grams, that’s it. He paid a $50 fine, that’s it. But our government denied him entry into the country. Wow. Sorry New Orleans, we know you could use a few tourist dollars, but anyone who’s paid a $50 fine for a weed charge is not of the good moral character that should be permitted to party on Bourbon Street.
Continue Reading

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.
Continue Reading