Not All Those Drugs Are Mine

IMG_0476-e1456765765191-300x225Its hard to believe that the movie El Mariachi came out 25 years ago.   Its one of my favorite movies, and I love the director, Robert Rodriguez.   Rotten Tomatoes gives El Mariachi a 93%.  For you Rotten Tomatoes fans, this is a good number, but worse movies (more expensive . . . comic book hero movies, for example)  have received higher ratings.

Here’s the thing: Rodriguez wrote, directed, and filmed El Mariachi in 1993 for $7,000.  And he did it in two weeks.  Feeding the crew of a super hero movie cost millions.  Yes, millions for food.  Again, Rodriguez created a great, classic movie for $7,000.

As you might imagine, it was tough for Rodriguez to film such a classic on a low budget.  I think the term “low budget” covers budgets up to $100,000, so $7,000 should qualify for some word we have yet to invent.  Of course, once Hollywood saw what he Rodriguez could do with $7,000, future budgets ran into the millions.

Surely, things would get easier with more money, right?  There’s a song about Mo Money, but you have to get your 90’s on to sing along to such rap wisdom.

Rodriguez was once asked by an aspiring filmmaker about how few problems he must now have–with more money to make his films.  The student filmmaker explained “I tried filming my movie on a low budget–but this went wrong, that went wrong, everything went wrong!”   I loved Rodriguez’s response: if you are a filmmaker, you are hired because everything goes wrong.  That’s the job.

Same goes for criminal defense.  Things go wrong, that’s the job.

Yesterday, a client apologized to me because his witnesses were a tad difficult.  He was right, but an apology was completely unnecessary.  I fix problems for a living.   After 25 years of defending every sort of case imaginable–my job is to fix things (my web people love these sorts of statements, borderline advertising, I know, but you need to know what I do).   I’m not the Wolf, but things get fixed (follow me here, Robert Rodriguez is friends with Tarantino . . . ).

Today, we’re going to dive into how we fix the most common drug possession scenario on Earth: drugs in a car.  To do this, let’s review the facts in  Jones v. State, 2018 Fla. App. LEXIS 14646 (Fla. 1st DCA 2018).  Jones  is an interesting case because you have multiple people in a car, with drugs.  Yes, this scenario covers 80% of all drug cases, so pay attention here.

A Florida Highway Patrol trooper pulled over Jones for following too close on the interstate.  Now, we all know that this sort of driving pattern is a total dick move.  Sure, everyone speeds, I get that.  Sure, everyone rolls a stop sign here and there.  But, to tail folks on the highway is going to get you pulled over every time FHP spots it.  And, you deserve it.   It should go without saying that, if you have lots of drugs in your car, don’t drive like a dick.

That being said, if all of humanity came together singing Kumbaya My Lord, Kumbaya–I’d be out of a job.

Anyway,  FHP pulls him over, and to keep in character Jones gives the officer a false name.  Again, if you’re going to give a false name–you’re just asking, begging, to be searched.  Please officer, check every inch of this car.

The formula here is pretty simple: Guaranteed Car Search = driving like a jerk + false name

It should come as no surprise that, based upon the fact that I’m writing this article, Jones’ car contained felony drugs, and misdemeanor drugs.  They found weed and drug paraphernalia (every weed charge comes with a bonus paraphernalia charge).   And, they found cocaine.  All of these drugs were found in the center counsel of the car Jones was driving.

The possession of  cannabis is a misdemeanor, the possession of drug paraphernalia is a misdemeanor.  But, possession of cocaine is a felony.

In the midst of all this nonsense, Jones did something smart.  He admitted to the misdemeanor counts, saying something like “the weed is mine, but I don’t know how the coke got there”.  Jones claimed no knowledge of the cocaine found right next to the weed.

Ok.  The cocaine was right next to the weed.  How could he know about one, but not the other? Both are in the center console.  Is Jones guilty of possessing the cocaine because his weed was right there next to the cocaine?

Well, Florida law doesn’t care how close you are to the drugs.  The kids in the back seat may be closer to the drugs in the trunk than the driver–but proximity to the drugs doesn’t prove anything.  No jury is going to convict the middle school kids in the back of your Caravan just because they’re closer to the drugs in the trunk than the driver.  Proximity to drugs doesn’t matter.  But, Jones’ issue is slightly more nuanced than the usual proximity issue.

When there are multiple people in a car with drugs, the prosecutors have a higher burden of proof (we call this “constructive possession”).  They can overcome this extra burden in any number of ways.  Sometimes, for example, a passenger may confess.  Or, maybe the police can actually do some “police work” on occasion and have forensics take a look at the drugs packaging.   That’s why we have forensics.  After all, accusing someone of a felony shouldn’t be so easy.  Police work is only easy in a police state.  We live in a free state, and that makes police work slightly more difficult than, say, North Korea.

Jones was out of the car, chatting with the officer, while the passenger remained in the car.  Maybe the passenger placed the cocaine in the center console?

The appeals court threw out Jones’ conviction for the felony cocaine possession, reasoning that “the State was required to establish independent proof of Jones’s knowledge and ability to maintain control over the cocaine, such as evidence of incriminating statements or actions or circumstantial evidence from which a jury might properly infer that Jones had knowledge of the presence of the cocaine.” id. at 4.  For example, the “trooper took Jones’s fingerprints, but the baggie of cocaine was never tested for fingerprints or DNA.”  id. at 7.

Getting back to the passenger situation, the appeals court noted that the state never overcame Jones’s reasonable hypothesis of innocence that it was the passenger “who placed the cocaine in the center console while Jones and the trooper were talking outside.  The dash cam footage played at trial showed that [the passenger] was alone in the vehicle for at least nine minutes while Jones and the trooper were behind the vehicle and out of view.  The State failed to present sufficient evidence or testimony to rebut Jones’s hypothesis that [the passenger] placed the baggie of cocaine in the center console during that time.” id. at 8.