Articles Posted in Drug Crimes

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Did the police justify their search of your vehicle by claiming they detected the odor of marijuana?  If they did and there was in fact no marijuana smoked or recently in your car, your lawyer may be able to question their credibility based on a New York judge’s recent comments reported in The New York Times.

As in Florida, courts in New York have long held an officer may effect a warrantless search of a car and its occupants if they smell marijuana coming from the vehicle.  But in late July of this year, a judge in the Bronx said officers base vehicle searches on the smell of marijuana too often to be believed.  And, the judge has urged her fellow jurists across the state to stop letting police officers get away with lying about smelling marijuana as an excuse to search a vehicle.

“The time has come to reject the canard of marijuana emanating from nearly every vehicle subject to a traffic stop,” Judge April Newbauer wrote in a decision in a case involving a gun the police discovered in car they had searched after claiming to have smelled marijuana.  She added, “So ubiquitous has police testimony about odors from cars become that it should be subject to a heightened level of scrutiny if it is to supply the grounds for a search.” Continue reading

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On June 25, 2019 Florida Governor Ron DeSantis signed Florida Senate Bill 1020, regulating the production and distribution of hemp and hemp extracts in Florida, including the increasingly popular hemp derivative, cannabidiol (CBD). The bill makes Florida the latest state to enact legisla­tion to legalize and regulate its hemp industry.  The bill mirrors similar action at the federal level late last year when President Trump signed the Farm Bill removing hemp from the list of controlled substanc­es, making it legal to grow and sell hemp under federal law.

Hemp comes from the same cannabis plant that produces marijuana. Marijuana, however has much higher lev­els of tetrahydrocannabinol (THC), the chemical in the plant that is psychoactive and produces the hallmark “high” or euphoria.  Both hemp and marijuana contain CBD, a medical compound that has health benefits but is non-euphoric.

Under the Farm Bill, hemp is legal provided doesn’t contain more than 0.3 percent THC. If hemp contains more than 0.3 percent THC, it is still a federally banned controlled substance.  Similarly, Senate Bill 1020 excludes hemp from the definition of cannabis provided the THC concentration does not exceed 0.3 percent on a dry weight basis.

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To date, the following eleven states have legalized recreational use of marijuana:  Washington, Oregon, California, Alaska, Nevada, Colorado, Illinois, Michigan, Maine, Vermont and Massachusetts.  As those and other states and cities relax their drug laws, the highly trained dogs used by their police departments to sniff out narcotics can’t be relied on to smell the right thing.

It generally costs a law enforcement department about $6,000 to purchase a working dog and thousands more to train it.  The drug dogs are usually trained to detect numerous drugs, including marijuana, cocaine, heroin, ecstasy and methamphetamine.  So, when a dog alerts, it simply indicates the presence of one of those five drugs.  In those states where marijuana has been fully legalized, a drug dog’s alert could mean it smells only marijuana.  Since marijuana is legal in those states, the dog’s alert would not give rise to probable cause to search a person or their vehicle for illegal drugs.

Thus, in several states where marijuana is fully legalized, including California, Oregon, Maine and Vermont, most newly acquired drug dogs are not being trained to alert to the smell of marijuana.  And, some other states where recreational marijuana use is not legal have started to omit marijuana from the scents dogs are trained to detect. Continue reading

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A 2016, report by ProPublica and the New York Times found frequent false positives and user errors by law enforcement administering the most popular drug field tests. Precise error rates are difficult to ascertain, as some test results can be affected by variables such as the weather, user error and lighting conditions. Some studies have shown error rates ranging from 1 in 5 to 1 in 3 false positives.

The ProPublica report also found the most commonly used field tests failed to include warnings about the high false-positive rate, despite United States Justice Department directives to do so. And, disturbingly, the report found more than half of those wrongly charged after a false positive pleaded guilty, leaving many with personally and professionally devastating felony convictions.

Even though the 2016 ProPublica-New York Times report was published and received nationwide attention, police departments across the country, including those in Florida, continue to use the flawed field kids.  A recent article in The Florida Times-Union underscores just how problematic drug field testing can become.  Continue reading

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Imagine that while driving your car, you are stopped by the police for having an expired tag or for speeding.  The officer approaches and tells you the reason for your stop.  He / she then asks for your license, registration and insurance card.

The officer then asks you to step out of the car.  After you do, you’re patted down and drugs, a gun or other contraband are found on you.  The officer then searches your car and finds more of the same.  You’re then arrested and charged with possession of a controlled substance, drug trafficking or as a felon in possession of a firearm.  What can you do?  The answer in short:  sometimes plenty.

The above is a common scenario for what should otherwise be a simple, routine traffic stop where you’re issued a ticket and then go on your way.  Fortunately, a skilled and knowledgeable criminal attorney can oftentimes not only lessen the effects of this incident on you, but perhaps obtain reduced charges or even an outright dismissal of your charges.    Continue reading

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The First District Court of Appeal recently issued an opinion concerning whether merely being around drugs is sufficient to convict someone for possession.  Based on the facts in that case, the answer is “no.”

In that case officers found illegal drugs while investigating a shootout between two cars that had left a gas station. Among other things, the officers found a cocktail shaker cup stuffed with marijuana lying next to a fence at the gas station’s property line.

At about the same time in another part of town, other officers stopped a car with three occupants that had been part of the shootout. Mr. McKire was in the back seat of the car heavily bleeding  from a gunshot wound. He was transported to the hospital. Continue reading

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Did you know there is a law in Florida that requires your drug possession / possession of controlled substances case to be dropped under certain circumstances, even if it is undisputed you possessed the drugs?  Well, there is.

In 2012, the Florida Legislature determined it was in the interest of public safety and welfare to provide an incentive to persons aware of another’s drug overdose to seek medical attention for that individual.  As a result, the Legislature enacted the “911 Good Samaritan Act.”  The Act, codified as Florida Statute section 893.21, provides anyone “acting in good faith who seeks medical assistance for an individual experiencing a drug-related overdose” is immune from prosecution for drug possession if the evidence “was obtained as a result of the person’s seeking medical assistance.”

In plain language, this means is if you’re present during, or aware of, another individual’s drug overdose and you call 911 or otherwise seek medical assistance to help them, and during the process of helping them law enforcement discovers drugs in your possession, you cannot be prosecuted for possessing those drugs.  A recent case in Duval County shows the breadth of this protection.  Continue reading

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There is good news if you desire to serve in the military, but you have a previous arrest for marijuana possession.  The United States Army is issuing an increasing number of enlistment waivers to those who have smoked pot and also want to serve their country.  These waivers allow previously disqualified applicants to now enter the Army.

The increase in waivers reflects the Army’s difficulty in achieving its ever-increasing recruiting goals.  In 2016 the Army enlisted approximately 63,000 recruits.  That number increased to approximately 69,000 last year.  The Army’s goal in 2018 is to enlist 80,000 recruits.  The need for new soldiers comes as Congress has reversed trends begun in the Obama administration to downsize the military.

And, the number of waivers granted for marijuana users, while relatively small, nonetheless is increasing rapidly as well.  In 2016, there were 191 waivers granted.  That number increased substantially, to more than 500, last year.  While small compared against the total number of recruits enlisted, the increasing number of waivers granted is especially significant considering that just three years ago, no such waivers were granted.  This substantial increase is one way officials are attempting to comply with directives to expand the Army’s size.  Continue reading

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Most criminal cases, including drug cases, are resolved without a trial via a process known as plea bargaining.  In that process, both the government and the defense negotiate an agreement as to the outcome of a case, such as the length of any incarceration and/or probation and the requirement of any special conditions such as drug treatment, counseling, curfews and maintaining gainful employment.  The plea agreement is then presented to the court.  In the overwhelming majority of cases, the court approves and implements the agreement as the final judgment in the case.  A federal case in West Virginia this summer, and most recently, a state court memorandum issued in St. Johns County last week, however, may well signal the end of plea bargaining in cases in the greater Jacksonville area involving the manufacture, sale or distribution of opioids.

On June 26, 2017 United States District Judge Joseph R. Goodwin in the Southern District of West Virginia rejected a plea agreement reached between the U.S. Attorney’s Office and the Defendant, Charles York Walker, Jr.    There, Mr. Walker had been indicted for three counts of distributing heroin, two counts of distributing fentanyl and one count for possession of a firearm by a convicted felon.  Through plea bargaining, Mr. Walker pleaded guilty to a single count of distributing heroin and the government dropped the other charges.

Mr. Walker’s plea agreement was then presented to the court for acceptance.  To pretty much everyone’s surprise, Judge Goodwin rejected the agreement.  In doing so, Judge Goodwin first noted the defendant had a substantial criminal history and that the case facts demonstrated Mr. Walker was engaged in a “continuous drug dealing enterprise.”  Continue reading

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On September 29, 2017 the First District Court of Appeal made new law concerning the type of signage posted on your property that can prevent warrantless investigation of the occupants.  The case is State of Florida v. Crowley; Case No.:  1D16-3380.

In Crowley, Jacksonville Sheriff’s Officers received an anonymous tip someone was growing and selling marijuana from their home.  An officer decided to visit the home and talk to the occupants. Upon his arrival at the home, the officer approached up the front walkway to the front door which bore a conspicuous “No Soliciting” sign.  Ignoring the sign, the officer knocked on the door.  Robert David Crowley opened the door and spoke with the officer.  Mr. Crowley did not ask the officer to leave the premises.  The officer inquired about a supposed lost friend.  While speaking with Mr. Crowley the officer detected a strong odor of marijuana emanating from inside the home.

After the conversation ended, the officer obtained a search warrant and returned to search Mr. Crowley’s home.  The search produced seventy-seven marijuana plants, drug paraphernalia, and a firearm.  Mr. Crowley was then arrested and criminally charged.  Continue reading