Articles Posted in Weed, Marijuana cases

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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k9.jpgWe’ve all been to school, right? Taken plenty of tests? Yes. Typically, a grade of an “A” is 90-100%, a “B” is 80-89%, a “C” is 70-79%, a “D” is 60-69%, and anything below 60% is an “F”. Well, it seems that our judges have spent too much time outside the classroom, and they are giving passing grades to drug dogs that would otherwise receive an “F”.

For those of you who may not know this, our Constitution protects us from government searches and seizures. That constitutional protection goes away when a police officer has reason to believe you may be committing a crime. No, a mere hunch will not do. But when a cop has absolutely no reason which would support a search–but still wants to search you–he will call in a K-9 to do a sniff. Now, some of you deserve a dog sniff, especially if you’re a young white dude, wearing a Bob Marley t-shirt, sporting dreadlocks–no need for a drug dog here, you are possession of marijuana case waiting to happen.

When law enforcement cannot find a legitimate reason to search a person or vehicle, they simply call in the drug dog–and the drug dog conveniently “alerts” to his K-9 master that there are, in fact, drugs located in the area in which he sniffed. In essence, the Constitutional right to be free from unreasonable searches is set aside if some dog sits pretty and ‘alerts’ to the presence of drugs. But there’s a catch: the dog must be “accurate”. So you know what’s coming, right? Yep. Define accurate….
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pouch.jpgI know, I know. You don’t hang out with people that have drugs nearby. Fair enough, but just in case you’re not aware of this–drugs are everywhere. This is 2012. Lots of people smoke weed. Lots of people use prescription medications. Lots of people drink alcohol (yes, it’s a drug too!). Now, its common knowledge that the presence of drugs can lead to an arrest for possession of marijuana, or possession of a controlled substance, depending, of course, on the type of drug possessed. The massive amount of drugs in Orlando also leads to a massive number of arrests for possession. The problem is, many of these arrests are based on nothing more than a citizen’s proximity to a drug. Can being close to a drug get you arrested?

Well, if someone nearby has drugs on them and sees the police coming–are they going to stick around to find out what happens? No. But you, on the other hand, not realizing that drugs are present, may go ahead and happily greet the police, only to discover later that the persons that just hastily left did so to avoid a possession charge. So, does the fact that a citizen is in close proximity to a drug necessarily mean that they are guilty of possessing that drug? Believe it or not, this sort of thing happens all the time, let’s take a look at a recent example.

The case is G.G. v. State, 84 So.3d 1164 (Fla. 2nd DCA 2012). G.G. was upset with his parents, so he ran off into a nearby public park. Because the weather forecast for the night called for almost freezing temperatures, the police decided to make some attempts to locate G.G. Eventually, they found him sleeping in a park, with a drawstring pouch about a foot from him. The police picked up the pouch, and discovered weed and paraphernalia inside. You know the rest of the story, G.G. was arrested for possession of marijuana and possession of drug paraphernalia.
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dutch_weed.jpgOrlando seems to have quite a few drug choices these days. The biological urge to eat, survive, and procreate seems to be right up there with the urge to get high. So, rather than finding the cure for cancer, some folks have focused their efforts on finding new ways to get high. I’m no evolutionary biologist, but it’s safe to say that these sorts of activities have been around for a long time. For example, how many different animals did humans lick before figuring out that licking the Sonoran Desert Toad has a psychedelic effect (there is/was even a church dedicated to such toad licking–The Church of the Toad of Light, really…). So, if we’ve resorted to licking toads in an attempt to get high, we can only assume that efforts will continue well into the future. Why not synthetic weed?

Yep, synthetic weed is here, and it’s called a variety of names. One such variation is “Mr. Nice Guy”. It does looks like weed, and some people claim it smells a bit like weed. But some cops claim to know everything about weed–and, of course, they don’t. Cops have no clue as to the variations of synthetic strains of weed that do not contain THC, and thus are not illegal. Of course, what happens when you buy synthetic weed, but the police–who know everything about everything–claim that the plant material is, in fact, illegal? Remember, these are the same officers that would rather arrest a citizen found in possession of Oxycodone or Xanax pills without a bottle, rather than investigate their claims of innocence by having a prescription. Good old fashioned police work left the building decades ago.

Anyway, our synthetic weed case is C.M., a juvenile v. State, 83 So.3d 947 (Fla. 3d DCA 2012). C.M. was arrested for possession of marijuana and possession of drug paraphernalia. This case arose out of a standard backpack search at school, a search which uncovered the “weed”, and a makeshift smoking pipe (formerly a glass ear dropper with drug residue). At trial, the officer claimed that the alleged cannabis was not tested because, based upon his training and experience (usually the truth does not follow such a phrase, in my humble opinion), the green leafy substance looked and smelled like marijuana. The green leafy substance was eventually sent to the lab, but no lab results were ever admitted at trial.
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weed6.jpgYes I know, we don’t have medical marijuana here in Florida (yet). When we do, lots of issues are going to crop up, including a sharp decline in criminal defense revenues (like I’ve said before, I can handle it, as I’m sure the government will simply find other things to charge citizens with…). If marijuana becomes legal, must an employer must accommodate a patient’s use of medical marijuana on the job? And, a related question is, can an employee be fired for a positive drug test if that test simply proves the worker is positive for legally prescribed marijuana?

There isn’t much case law on this issue nationwide. Oregon has medical marijuana, and Oregon has decriminalized the possession of small amounts of marijuana (it’s simply a ticket to possess without a prescription, pay a fine, no crime). Recently an employee in Oregon requested that his employer accommodate his marijuana use, and he was fired. The employee sued the company under the ADA (a federal disabilities act), claiming discrimination due to his medical treatment. The courts did not agree, and approved of the employer’s termination. Part of this opinion, however, seemed to hinge upon the fact that the ADA is a federal law, and under federal law, possession of marijuana is illegal.
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medical marijuana.jpgYou never know, medical marijuana may one day become a reality here in Florida. Of course, that would mean quite a pay cut for criminal defense attorneys like me, but this one time, I’ll bite the bullet because it’s the right thing to do. Possession of marijuana arrests are pretty popular here in Orlando, so the police may have to find something else to do with their time. Somehow, I think they’ll manage, crime incorporated always finds a way to increase their revenues.

If Florida passes a medical marijuana law, our state law will be in direct conflict with Federal law–as Federal law makes it clear that cannabis possession is illegal (except for research purposes). Medical marijuana highlights an interesting issue in Constitutional Law. What are the rights of the states, and what are the rights of the federal government?

We, the People, gave our federal government only “certain” powers, all other powers are retained by the states. However, it seems that our federal government has grabbed more power than originally granted by the states, and a prime example of this is medical marijuana cases.
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backpack.jpgWhen cops in Orlando see teenagers hanging out with backpacks, they see a drug bust waiting to happen. Police are always suspicious of a kid with dreadlocks and a backpack, I mean really, aren’t dreadlocks a reasonable suspicion to search? Maybe in China or Iran, of course. Well, you know where I’m going with this, so let’s dive right in.

The case for today is M.A.F. v. State of Florida, 2012 WL 516186 (Fla. 2nd DCA 2012). M.A.F. is a juvenile defendant, so his name is not used, only his initials (you knew that, right? Just checking). The kid was convicted of introduction of contraband into a county detention facility and possession of less than 20 grams of marijuana. He originally drew the attention of the police because he was smoking a cigar. The police saw this, ran his name, and discovered a warrant so they arrested him. The cops seized his backpack, and later found weed inside.
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weed.jpgDoing the right thing is tough. Throughout American history, we’ve seen brave folks do the right thing, even though it is against the law. Not all of us have the opportunity make such brave statements, but most of us are faced with tiny such decisions occasionally. Say, for example, that you find out your roommate is committing major drug trafficking crimes within your shared apartment. How do you resolve such issues? (sharing is caring? a friend with weed is a friend indeed? no no no, this stuff is illegal, stop that) With the Orlando police lacking any sort of investigation, it’s possible that anyone within the apartment could be charged with those drugs. So, do you “take possession” of the drugs and throw them out? What if the police catch you going to the trash can with the drugs, won’t they arrest you anyway? Lucky for you, we have a real life example of just such a case.

In Robinson v. State, 57 So.3d 278 (Fla. 4th DCA 2011), Robinson was convicted of possession of more than 20 grams of cannabis as a lesser-included offense of possession of cannabis with intent to sell. At trial, a cop testified that he saw Robinson exit his parents house at 3 a.m, with a bag hidden under his shirt. They saw Robinson look around carefully, remove a trash bag from the garbage can, and carefully place the hidden bag under his shirt into the canister, then placing the white trash bag back on top. So, was Robinson doing the “right thing” by throwing out illegal drugs found within his home? (yes, weed is a terrible thing to waste, but remember, it’s illegal too!).

Unfortunately, the appeals court upheld Robinson’s conviction–though I don’t understand why. Florida law is very clear on this, “temporary control of contraband for the purpose of legal disposition by throwing it away, destroying it, or giving it to police can be a valid defense to the crime of possession of a controlled substance.” Id. Thus, Florida law is clear as to the three (3) ways you can defend the legal disposing of drugs. So, what happened in Robinson’s case? A poorly reasoned decision, that’s what. The devil’s in the details, listed below.
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weed baggie.jpgI have a lot of clients arrested here in Orlando on Possession of Cannabis charges, and they’re just itching for Florida to decriminalize weed. Actually, I have a few Orlando clients who have gone through the trouble of getting a prescription for weed in the State of California. One client was able to fly into California early in the morning, obtain a valid driver’s license by lunch, get a medical marijuana prescription by 3pm, and he was legally smoking by dinner time.

States that do not have legalized marijuana (such as Florida) are shown to have much higher abuse rates of more dangerous pain medications ((See “Marijuana and Medicine: Assessing the Science Base, National Academy of Sciences, Institute of Medicine 1999, pages 737-747). We have a pill problem in Florida, decriminalization of weed would help our pill addicted population. If more citizens “in pain” could use marijuana–instead of oxycodone / hydrocodone / etc–maybe our prisons would have fewer drug addicts serving ridiculous mandatory minimums on pill trafficking charges. Those tax dollars could be used on health care, education, etc etc etc. What a concept….

With legalized marijuana, there would be no searches of citizens due to the “odor of cannabis”, as that odor would now have a legal foundation. Of course, this would lead to far fewer arrests in Orange County, leaving the police force to deal with more important crimes.

city pic.jpgHere in Orlando, there’s a few catch phrases that seem to roll off the tongue of police like the doublespeak of politicians: (1) based upon my training and experience, and (2) this is known as a high crime area. You can’t even blame a cop for saying these things, there’s no freewill involved here, it’s automatic. But, it can get a case overturned, because talk of ‘high crime areas’ is irrelevant in most cases. Let’s take a closer look.

In E.M. v. State, a juvi was convicted of possession of marijuana. 61 So. 3d 1255 (Fla. 3rd DCA 2011). At trial, the arresting officer stated that he saw E.M. with what looked like a marijuana joint, in “a hot area, hot spots for narcotics”. Later, the officer mentioned that the area was “checked the prior week for narcotics and guns, involving gang members.”
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