Drug Crimes

Federal Safety Valve: The Supreme Court Dramatically Reduces Eligibility For Sentences Below the Minimum Mandatory in Federal Drug Offenses

Published on: April 3, 2024 | by Lasnetski Gihon Law

In federal criminal courts, when a person is convicted of a drug offense with a minimum mandatory sentence provision, there are only two ways that allow a federal judge to go below that statutory minimum mandatory sentence: a 5K motion filed by the federal prosecutor if the client provides substantial assistance to the government or the safety valve provision of 18 U.S.C. §3553(f). Congress recently broadened the safety valve provision and one particular section has been subjected to intense litigation resulting in varying outcomes from the various circuits.

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If otherwise qualified under different subsections, a person is eligible for the safety valve, and therefore a sentence below a statutory minimum mandatory sentence under §3553(f)(1) if:

The defendant does not have –

When Can a Police Officer Make an Arrest on a Misdemeanor Without a Warrant in Florida?

Published on: January 22, 2024 | by Lasnetski Gihon Law

The Fourth Amendment to the United States Constitution protects citizens from unreasonable searches and seizures. Police officers can’t simply walk up to any citizen and detain or arrest that person. There must be reasonable suspicion or probable cause that the person has, is, or is committing a crime in order to detain or arrest them.

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Typically, if a police officer wants to make an arrest, they must seek an arrest warrant. In order to obtain an arrest warrant, the officer must establish to a judge that there is probable cause that a crime occurred and that the defendant committed the crime. The judge will then issue an arrest warrant if the judge determines there is probable cause exists.

However, a police officer does not always have to obtain an arrest warrant in order to make an arrest. There are exceptions to the arrest warrant requirement. Florida Statute §901.15 lays out when an officer can make an arrest without an arrest warrant. There are many exceptions to the arrest warrant requirement. For example, an officer doesn’t need a warrant to arrest a person for driving under the influence. The officer can simply make the arrest once observing all of the elements of the offense.

New Florida Law Raises Penalties for Fentanyl Trafficking

Published on: November 3, 2022 | by Lasnetski Gihon Law

bigstock-Tablet-with-the-chemical-formu-82173965 Gov. Ron DeSantis signed new legislation into law that imposes higher penalties for fentanyl trafficking. This new law was enacted along with hundreds of others that were passed during the 2022 legislative session.

The legislation, House Bill 95, titled “Controlled substances” officially took effect on October 1. While the legislation targets crimes committed relating to the drug fentanyl, it covers all types of controlled substances.

Reasoning behind the new legislation

Understanding the DUI Police Report

Published on: September 1, 2022 | by Lasnetski Gihon Law

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When a person is pulled over for driving under the influence (DUI), the arresting officer will prepare a police report, summarizing the reasons behind the arrest. These reports are important when it comes to prosecuting a DUI case, and they can be helpful for defense attorneys in evaluating the case and determining a strong basis for a defense.

Why DUI Reports Are Valuable

Without DUI reports, the courts can only go off the testimony and viewpoint from the parties involved. Alone, DUI reports are not enough to be considered admissible evidence. The court will not accept the report by itself since the statements constitute hearsay, but the report gives both sides an idea of what the arresting officer would say when called to the stand. Having this information will allow the defendant to prepare a case and fight the charges. The arresting officer’s report can show if there are any weaknesses in the case, including their basis for probable cause in the arrest.

How Should I Handle Police Questioning When Stopped and Investigated Based on the “Odor of Marijuana”?

Published on: October 20, 2020 | by Lasnetski Gihon Law

The war on drugs has been, and continues to be, one of the most ineffective, expensive and damaging government policies in American history. And as it relates to marijuana, it has not only been a complete waste of money and resources, but it has been an easy, if often illegal, basis for police officers to circumvent 14th Amendment protections against unreasonable searches and seizures allowing police officers to invade privacy and property based on the alleged “odor of marijuana.” So often, police officers claim to smell marijuana, which leads to a prolonged search only to find that there is none. In court, they can simply argue that the defendant must have marijuana prior to the search, and the 14th Amendment protections evaporate. Essentially, the “odor of marijuana” can become a blanket substitute for the 14th Amendment prohibition against unreasonable searches and seizures.

Some progress has been made in this area as states have legalized marijuana recreationally. Minorities are still being arrested for marijuana at much greater rates, so systemic problems remain in force, but legalizing marijuana has provided some protection against these unnecessary and counterproductive arrests and searches.

At the federal level and in states like Florida, cannabis is not fully legal, but hemp is. While the legality of hemp certainly has not received the same kind of praise and publicity that marijuana legalization gets, it has created an interesting dynamic when it comes to police encounters and searches and seizures. Before hemp legalization, police officers would stop a vehicle or approach a person in certain areas, claim to smell marijuana and then assume full legal authorization to search that person’s property. Now, that is not so clear. First, we need to understand what hemp is under the federal and state laws. Hemp is basically the same as the cannabis plant but with less than 0.3% THC content. So, legal hemp looks, smells, feels and tastes just like illegal marijuana. A chemical test to determine the THC content of the substance is required to distinguish legal hemp from illegal marijuana. This is critical because the naked eye, mouth, nose or hand cannot tell the difference between what is legal (hemp) and what is illegal (marijuana). As a result, police officers cannot just search people or vehicles based solely on the “odor of marijuana” because what they have always assumed was marijuana might be hemp, which is now legal. And police cannot search people or property based on the assumption of illegal activity.

Constructive Possession of Drugs in Florida Does Not Require Drugs to be On or Near Defendant

Published on: August 20, 2020 | by Lasnetski Gihon Law

A lot of drug possession and trafficking of drug cases in Florida involve police finding drugs not on the defendant but near him or even somewhere far away from the defendant. There are two types of possession cases in Florida that can be the basis of a drug possession or trafficking conviction. Actual possession is usually simple. If a person is carrying the drugs or has them on his person, that is usually enough to prove actual possession. But, Florida law does not require the drugs to actually be on the person for a drug possession conviction. Constructive possession can also result in a criminal conviction if the state can show that the defendant knew of the existence of the drugs and had some ability to control them. All such cases will depend on the specific circumstances and what each side can prove.

In a recent drug possession case west of Jacksonville, Florida, police stopped the defendant for driving with a suspended license. The defendant was the driver and owner of the vehicle, and there was one front seat passenger. The police, who surely had prior information about the defendant, had a drug dog ready to walk around the vehicle. The drug dog alerted to the odor of illegal drugs, and the police searched the vehicle. They found a safe under some clothes in the backseat. The police forced open the safe and found various drugs inside, including heroin and methamphetamine. They also found receipts, bills and other documents in the name of the defendant in the safe. He was charged with various drug possession charges.

At the trial, the criminal defense lawyer filed a motion for judgment of acquittal arguing that the state could not prove the defendant was in actual or constructive possession of the drugs since they were locked in a safe in the backseat. The legal standard is whether the state produced competent and substantial evidence that the defendant was guilty. The court found that the state presented sufficient evidence because the drugs were in a car owned and driven by the defendant and had papers inside the safe belonging to him. Apparently, the defendant did not have a valid explanation for how his belongings got into the safe with the drugs without him knowing the drugs were there. While there was a passenger in the car that the defendant could blame for the drugs, neither the car nor any items in the safe with the drugs belonged to that passenger. As a result, that defense was not found to be credible. The conviction against defendant was upheld.

Medical Marijuana is Now Legal in Florida, but Police Officers Can Still Detain a Driver and Search the Car Based on the Odor of Marijuana

Published on: August 8, 2019 | by Lasnetski Gihon Law

One reason police are often against the full legalization of marijuana is that marijuana illegality gives police officer perhaps the easiest excuse to search people and vehicles. Likewise, marijuana arrests are about as easy as it gets for police officers. They smell marijuana, they search and they arrest. No real work, thought, diligence or investigation required. And while marijuana arrests obviously do nothing to make anyone safer and needlessly cost time, money and resources, they count as arrests on the stat sheet all the same. And I suppose it beats having to investigate real crimes that actually have real victims.

Florida has been slow to work its way into the 21st century and legalize marijuana, but at least medical marijuana is legal. Now, some people (those with a valid medical marijuana card) whose vehicle or other property may smell like marijuana may not be doing anything illegal. Since that is the case, should police still be allowed to stop and search people based on the odor of marijuana when marijuana is not necessarily illegal depending on who has it?

In a recent case near Jacksonville, Florida, police officers stopped a vehicle at night for a headlight violation. They approached the vehicle and smelled burnt marijuana. They searched the vehicle and arrested the suspect for possession of cannabis. The criminal defense lawyer filed a motion to suppress the evidence of marijuana arguing that the police unlawfully searched the vehicle because the odor of marijuana does not necessarily indicate illegal activity.

Prosecutor in Florida Permitted to Charge Defendant With Two Separate Felony Charges for Selling One Drug Quantity to One Person

Published on: March 27, 2019 | by Lasnetski Gihon Law

In Florida, it is pretty clear that the sale of an illegal drug is a felony crime. Selling some drugs is more serious than others. While police and prosecutors continue to waste time and taxpayer money arresting and charging people with selling marijuana, at least that crime is not considered very serious, depending on the quantity. However, selling heroin or fentanyl is considered a serious crime which often carries serious jail or prison time. The more that is sold, the more serious the crime, generally.

Normally, if a person sells one drug amount to a person one time, that is a single crime that carries a single sentence. Multiple sales, even to the same person, can each be considered separate crimes if they are separated by a sufficient time period. Can a single sale of one substance to a single person be considered two crimes?

In a recent case south of Jacksonville, Florida, the defendant sold a single drug quantity he believed to be heroin to an undercover police officer. He was arrested on one count of sale of heroin, which is a second degree felony that carries a maximum sentence of 15 yeas in prison. In drug cases where a defendant requests a lab report or where the case may go to trial, the state will send the drug sample to the crime lab to be tested for composition and weight. In this case, the lab report showed that the substance contained heroin and fentanyl. As a result, the state charged the defendant with two separate counts- sale of heroin and sale of fentanyl although the defendant just sold one substance one time. Both charges are second degree felonies and fall under the same Florida statute.

Florida Police Try to Use Three Year Old Consent to Search Property for Marijuana

Published on: May 17, 2018 | by Lasnetski Gihon Law

In Florida, one exception to a search warrant requirement is consent to search from the owner of the property or someone in possession of the property who appears to have authority to give consent. Police can generally walk up to any person, vehicle or residence and ask to search without a warrant and without probable cause. If that property owner agrees, the police are free to search. However, there are limitations, and people should always understand they have a constitutional right to refuse any police request to search one’s property.

In this case, police officers drove to the defendant’s property in a rural area south of Jacksonville, Florida. They went through an open fence and ignored the “No trespassing” signs. They knocked on the front door, but no one answered. The officers then got back into their vehicle and kept driving on the property to a barn where they found marijuana. They ultimately arrested the property owner for various marijuana charges.

The criminal defense attorney filed a motion to suppress all of the marijuana evidence because the police did not have a right to come onto their property and search it. At the hearing, the police officers testified they previously had permission to enter the property. It was determined during the hearing that the permission was given three years earlier by the previous property owner.

Police Unlawfully Search Person at Florida House Where Marijuana Was to be Delivered

Published on: April 18, 2018 | by Lasnetski Gihon Law

People ship drugs to other parts of the country. They do it using the US Postal Service and Federal Express and UPS and any other delivery service. They do it by shipping to a location where nobody lives expecting someone on the other end to pick it up as soon as the package arrives. Other times, they ship it to a known address but address the package to a fake name so the person who receives it can claim ignorance if the police find out. And there are other methods people use to send illegal drugs to other people. The police catch many of these packages. Many of these packages have similar appearances and methods of shipment. Law enforcement also use drug dogs at the shipping facilities to smell packages (particularly those from states where marijuana is now legal). When they find a package that contains illegal drugs, they will attempt a controlled delivery which often consists of a police officer pretending to be a deliveryman and delivering the package to the listed address. Once a person at the address accepts the package, police will come in and make arrests.

In a recent case near Jacksonville, Florida, the police discovered a suspicious package at UPS and decided to investigate. They learned that it was addressed to a fake person. They got a search warrant to open the package and found marijuana inside. One of the police officers disguised himself as a UPS driver and attempted to deliver the package, but no one answered the door. Later, the police knocked on the door to try and interview the resident. As they did so, an individual drove up to the residence. The police detained that individual and asked him questions to see if he was involved with the marijuana package. The police brought a drug dog to the scene and had the dog walk around the person’s vehicle. After alerting to that vehicle, the police searched it and found marijuana and other drugs inside.

The criminal defense lawyer filed a motion to suppress the evidence of the drugs found in the vehicle because the police did not have a legal basis to detain and keep the defendant at the scene. While the defendant did ultimately consent to a search of his car, it was after the detention which the criminal defense attorney argued was illegal. Consent is not voluntary if it is the result of an illegal detention.