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Articles Posted in Weed, Marijuana cases

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.” 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).
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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.
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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.
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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.
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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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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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