Drug Crimes

Florida Judge Finds the Possession or Delivery of Drugs Statute Unconstitutional

Published on: October 9, 2011 | by Lasnetski Gihon Law

As criminal defense lawyers in the Jacksonville and North Florida area, two of the most common crimes we see are possession of illegal drugs and delivery of illegal drugs such as marijuana, cocaine, methamphetamine and heroin. Hundreds of people in the Jacksonville and North Florida areas are put in jail for those crimes on a weekly basis. However, it is possible that those drug convictions were unconstitutional because the Florida possession and delivery of drugs law violates a person’s right to due process under the Constitution.

In a recent, very well-written opinion by a judge in Miami-Dade County, the possession and delivery of illegal drugs statute was determined to be unconstitutional. This is the same criminal statute that has put thousands and thousands of people in jails and prisons in Florida over the years. So, what was the problem with such a well-established and frequently used criminal statute? According to the judge’s analysis, the statute, as written, does not distinguish between people who possess or delivery illegal drugs knowing the illegal nature of the substance and those who possess or deliver illegal drugs not knowing what they have is illegal.

Of course, the majority of people who possess or deliver illegal drugs know very well what they are doing is illegal. However, there are those people who possess or deliver illegal drugs who do not know the illegal nature of what they are possessing or delivering. The criminal statute does not distinguish between those two mental states- intending to do the act that is illegal in the first instance and not intending to do anything illegal in the second instance. For that reason, according to the judge, the statute is unconstitutional because it covers conduct where there is no intention to break the law.

Police Officer in Florida Cannot Search a Person For Violating Ordinance

Published on: October 3, 2011 | by Lasnetski Gihon Law

Police officers are allowed to search a person for drugs, guns or other evidence of criminal activity in limited circumstances. One of the most common bases for searching a person is consent. The police can almost always approach a person and ask for consent to search him/her. Additionally, everyone who is arrested for a crime will be searched by the police. The primary legal justification for this search incident to an arrest is to make sure the suspect does not have any weapons on him/her to ensure the police officer’s safety when he/she takes the suspect into custody.

However, the arrest has to be valid for the search incident to the arrest to be legal. The police cannot search a person for illegal drugs, guns or other criminal evidence if there is no legal basis to arrest the person in the first place. For example, if a person commits a traffic violation, the police officer can give that person a traffic ticket, but the police officer is not allowed to search the person based on the traffic violation. The police officer can ask to search the person and/or his/her vehicle during the traffic stop, but the person has a right to refuse the police request to search. Likewise, if a person is in violation of some other ordinance for which jail time is not a potential penalty, the police cannot search a person based on a violation of that ordinance.

In a recent criminal case south of Jacksonville, Florida, police officers saw the defendant in a city park after dark. The city had passed an ordinance prohibiting people from being in the city park after dark due to drug activity in the park. The police officer approached the individual and told him about the ordinance. The police officer then arrested the defendant for violating that ordinance. Incident to the arrest, the police officer search him and found marijuana and drug paraphernalia in his pocket. The defendant was then arrested for possession of marijuana (cannabis) and possession of drug paraphernalia.

Police in Florida Search Suspect’s Car for Drugs After Playing Loud Music

Published on: September 27, 2011 | by Lasnetski Gihon Law

In a criminal case just south of Jacksonville, Florida the suspect was driving in his vehicle and playing his music in a loud manner when he was pulled over by the police for a noise violation. The police officer checked the driver’s license and learned that it was suspended. When the police officer searched the car subsequent to the arrest, he found a large quantity of cocaine and marijuana in the car. The suspect was then arrested for trafficking in 28 grams of more of cocaine and possession of marijuana.

The criminal defense lawyer for the suspect filed a motion to suppress the cocaine alleging that the search was illegal because the police officer did not have authority to pull the driver over for the noise violation. If the initial stop of the suspect was illegal, then the subsequent arrest of the suspect for driving with a suspended license and search incident to that arrest would be illegal. In that case, the evidence of the cocaine seized after the illegal search would be thrown out.

The criminal defense attorney argued that a person has a First Amendment right to play music loudly and the noise violation was unconstitutional. The Florida noise statute basically says that a person operating a vehicle on the roads cannot play music that can be heard at least 25 feet away from the vehicle. The court agreed that the noise statute was unconstitutional because amplified music is protected under the First Amendment and the noise statute unnecessarily allowed certain types of noise beyond 25 feet while prohibiting others.

Police Need To Verify Anonymous Tip for Valid Sale of Cocaine Arrest

Published on: September 12, 2011 | by Lasnetski Gihon Law

Police in Florida often get tips from people about others who are allegedly involved in criminal activity. Many of these tips relate to people allegedly selling drugs or growing drugs. When the tips come from people who identify themselves to the police, know the suspects and have specific information about the criminal activity, the tips are considered more reliable than tips from anonymous people. When the tip comes from a person who is not willing to identify him/herself to police and discusses alleged criminal activity, this is not sufficient for the police to obtain a search warrant or make an arrest. The police can investigate the matter to see if they can observe facts that verify the tip and the criminal activity. If the police do in fact observe facts consistent with the tip and consistent with criminal activity, they may be able to detain or arrest the suspect. However, if the police observe the suspect and verify certain harmless facts (such as description and location) but not anything indicating criminal activity, the police cannot lawfully detain or arrest the suspect.

In a recent sale of cocaine within 1,000 feet of a park case just outside of Jacksonville, Florida, the police received an anonymous tip that the defendant was selling cocaine at a park with a young child. The police went to the park and saw the defendant and his son. They then saw the defendant walk to the driver’s side of another vehicle and then make an exchange of an unknown object for money. At this point, the police arrested the defendant for sale of cocaine within 1,000 feet of a park. They found that he was in possession of money and more cocaine at the time.

The criminal defense lawyer filed a motion to suppress evidence of the cocaine based on the argument that the police officer did not have probable cause to arrest the defendant. The court ruled that the arrest and search were valid. If the police officer had detained the defendant after only verifying that he was at the park with his son, that would not have been sufficient verification of the tip to justify detaining the defendant. Those facts are harmless facts that do not indicate criminal activity is occurring. However, once the police observed what appeared to be a hand to hand transaction, which are common in drug sales, the police did have sufficient corroboration of the tip to detain the defendant and investigate further.

Law Enforcement Officials Charge 32 People After Pain Clinic Investigation in South Florida

Published on: August 30, 2011 | by Lasnetski Gihon Law

At Lasnetski Gihon Law in Jacksonville, Florida, we represent people who are being investigated or have been arrested and charged with crimes relating to pain clinics and pain management practices, whether they are doctors, owners or employees. Over the last several years, we have seen a significant increase in state and federal investigations of pain clinics in Florida and Georgia. State and federal law enforcement officials take the position that many of these pain clinics are so-called “pill mills” that prescribe addictive pain medication to people as quickly as possible and without performing the proper examinations. While there are some pill mills out there, many pain management clinics are operating properly and legally, yet they are still the subject of criminal investigations. Clearly, there are many people with chronic pain who are greatly benefited by pain management doctors but who are not fortunate enough to have adequate insurance.

Another example of law enforcement going after pain clinics was seen in South Florida recently. Thirty-two people, including doctors and owners of pain clinics, were charged with crimes relating to the distribution of pain pills last week. They were calling this the largest illegal pain clinic operation in the country and alleged that 20 million pain pills were distributed for a profit of approximately $40 million between 2008 and 2010. Oxycodone was the primary prescription drug that was issued to the patients.

According to the Attorney General’s office, Florida leads the nation in illegal pain medication distribution. Articles like this one about the police shutting down a pain clinic and arresting multiple doctors, owners and employees are not uncommon.

Deaths From Prescription Drugs Increase in Florida in 2010

Published on: August 24, 2011 | by Lasnetski Gihon Law

As criminal defense lawyers in Jacksonville, Florida and the North Florida area, we see the trends in criminal law as they occur. One obvious trend over the last several years is the shift away from more traditional drug crimes involving marijuana, crack, cocaine and heroin towards drug crimes involving prescription drugs like Oxycontin, Hydrocodone and Oxycodone. Florida police and lawmakers are also aware of this trend and have responded by making prescription pill crimes and punishments more serious and making more arrests in this area.

A recent article on News4Jax.com will not do anything to stem the tide of stricter laws and more arrests involving prescription drugs. According to the article, deaths from prescription drugs increased by 9% in 2010, despite increased efforts by law enforcement to crack down on the illegal distribution of these prescription drugs. Governor Scott noted that the government has strengthened laws and regulation as well as budgeted more money for police in an effort to address the rise in prescription drug related crimes and deaths. Of course, throwing more money into regulation and enforcement has never seemed to reduce drug crimes in the past; it only seems to result in more money and resources needed in the criminal justice system and the prison system. Among the drugs most responsible for the increased deaths from prescription drugs, Oxycodone was the number one drug. According to the article, there were almost three times as many deaths in Florida from Oxycodone than cocaine.

Florida is the leading state when it comes to the illegal purchase of prescription drugs. As a result, law enforcement officials have gone after pain clinics alleging they are providing prescription drugs to countless people without following the required medical protocol. We have represented several doctors, pain clinic owners and employees who have been charged with serious felony crimes related to various pain clinics. You can be sure that whenever law enforcement makes a certain crime a priority, they cast a wide net to try and address the issue, and many people who are innocent or only tangentially involved will get caught up in it.

Drug Dog or K9 Alert for Drugs is Insufficient to Allow Police Search

Published on: August 15, 2011 | by Lasnetski Gihon Law

In Florida, a common scenario in drug cases occurs when the police pulls a driver over and suspects the driver has illegal drugs in his/her vehicle. The piolice officer may ask for consent to search the vehicle for drugs, or the police officer may bring a drug dog, or K9, to the scene to sniff the area around the vehicle for the odior of illegal drugs such as marijuana, cocaine, heroin and methaphetamine. The drug dog is presumably trained and certified to detect to the odor of illegal drugs and indicate a particular signal to the police officer handler who recognizes the signal as an indication that there is an odor of illegal drugs coming from the vehicle. In some jurisdictions, when the drug dog alerts, this is sufficient problable case to justify a search of the vejhicle by the police.

However, in Florida, the state has the burden of proof that a search of one’s vejhicle for illegal drugs is based on probable cause, and merely presenting evidence that a trained drug dog alerted to an odor of illegal drugs does not meet this burden. The state must prove that the drug dog, and the police officer handler, were sufficiently trained and certified to detect the odor of illegal drugs. However, this is the beginning of the analysis, not the end. The state must provide details of the drug dog’s training and the drug dog’s performance during training. The state must also present evidence of how often the drug dog gave false alerts in training and in the field after training. The court should also look at instances where the drug dog alerted to a residual odor of illegal drugs, i.e. where drugs were not found in the vehicle but evidence sugests they were previously in the vehicle.

In some cases, the courts have been satisfied with a drug dog’s reliability to detect an odor of illegal drugs as long as the state has shown the drug dog had the proper training and credentials. However, Florida law requires a much more detailed huistory of the training, success and failure of a drug dog’s ability to actually detect the presence of illegal drugs.

Police Show of Authority is Sufficient for a Seizure

Published on: August 12, 2011 | by Lasnetski Gihon Law

In Florida, police officers are not allowed to seize a person without a reasonable belief based on specific facts that the person is engaging, or is about to engage, in criminal activity. If police officers do seize or detain a person without the required reasonable suspicion, any evidence found on the person, such as illegal drugs or guns, will be inadmissible and thrown out of court. This seizure does not necessarily require a physical detention or even a command directed at the person. If the action of the police officers indicate a show of authority without direct commands or a physical seizure, it can still be considered a “seizure” under the search and seizure laws in Florida.

For instance, in a recent marijuana case south of Jacksonville, Florida, the defendant was sitting on the steps of an apartment complex. Several police cars drove up and six police officers approached the area where the defendant was sitting with bullet proof vests and guns drawn. The police officers were there to raid one of the apartments. They had no knowledge the defendant was involved in criminal activity. None of the police officers touched the defendant or even addressed him specifically. When he saw the police officers approaching him, the defendant threw down a few bags of marijuana. He was then arrested, and the police officers found more marijuana in his pocket. He was charged with felony possession of marijuana.

His criminal defense lawyer filed a motion to suppress the evidence of the marijuana arguing that the defendant was seized when the officers approached him without any reasonable suspicion since the defendant was merely sitting on the steps. The court agreed to throw out the evidence of the marijuana. In determining whether police action constitutes a seizure, the court must determine whether a reasonable person would feel like he/she was free to leave the area under the circumstances. If the court determined that a reasonable person would not feel free to leave given the actions of the police, this constitutes a seizure that is illegal unless the police officers can show specific evidence of the defendant’s criminal activity. The court found that when several police officers approached the defendant in full uniform with guns drawn, the defendant did not reasonably feel like he could leave. This was a seizure under Florida law without legal justification so the evidence of the marijuana found during the illegal seizure was inadmissible.

Federal Judge Decides Ecstasy Penalties Are Too Harsh Under Federal Sentencing Guidelines

Published on: July 31, 2011 | by Lasnetski Gihon Law

A federal judge recently declined to sentence a defendant with ecstasy charges within the federal sentencing guidelines because he felt the federal sentencing guidelines punish ecstasy crimes too harshly and are not scientifically justified.

In federal court, when a defendant pleads guilty or is convicted at trial, the judge will determine his/her sentencing guidelines prior to sentencing. The ultimate guideline range takes several factors into consideration including, for drug cases, the type of drug and the quantity of the drug. Crimes involving some drugs result in higher sentencing ranges than others. A person’s criminal history and the circumstances of the crime are also factors in determining one’s sentencing guidelines range. Ultimately, a guideline range for the crime that is measured in months will be established which suggests that the judge should sentence the defendant somewhere within that range. Federal judges are not required to sentence the defendant within that range; they can depart above or below that range based on the nature of the criminal activity and the particular defendant and other factors.

In this case, the defendant pled guilty to conspiracy to possess and distribute ecstasy. His sentencing guidelines range was 63 – 78 months in federal prison. The judge, however, departed well below that guidelines range and sentenced the defendant to 26 months in prison. At the sentencing hearing, the judge was presented with testimony about the relative safety of ecstasy, including testimony from a Harvard psychiatrist who referenced a five year study that found long term recreational ecstasy use did not cause clinically significant damaging effects. The judge concluded that the harshness of the ecstasy sentencing guidelines did not have a rational relationship to the effects of the drug and a sentence within the guidelines range would be greater than necessary to achieve the objectives of sentencing.

Increase in Abuse of Prescription Pills Results in More Pharmacy Robberies

Published on: July 22, 2011 | by Lasnetski Gihon Law

Traditionally, cocaine, crack and marijuana cases were the majority of drug cases that appeared in criminal courts in Florida. Over the last several years methamphetamine and pill cases have become much more common. According to the Centers for Disease Control and Prevention, prescription painkillers have caused more fatal overdoses than drugs like cocaine and heroine. Painkillers like Hydrocodone, Oxycodone and Oxycontin can be very addictive and cause people to go to great lengths to obtain those drugs. Recently, law enforcement officials have noticed an increase in robberies of pharmacies and other drug stores. At pharmacies, people are targeting prescription drugs, narcotic cough syrup and pseudoephedrine pills that are a key ingredient in the manufacture of methamphetamine.

The Drug Enforcement Agency has reported an 80% increase in pharmacy robberies and burglaries from 2006 to 2010. In 2010, Florida led the nation in the number of pharmacy robberies. Pharmacies and drug stores are also noticing an increase in thefts of these items by employees who either use the drugs or sell them on the street.