Jacksonville Criminal Lawyer BlogThe Obama administration has promised certain drug law reforms, and it appears that we may soon see some of the results. One of the issues that we have written about before is the disparity between criminal sentences for crack cocaine crimes versus powder cocaine crimes in the federal criminal system. Under the Bush administration, people convicted of relatively small amounts of crack cocaine would receive much higher prison sentences than people convicted of having higher quantities of powder cocaine. Under the new administration, we should see sentences on crack cocaine crimes equal to sentences for powder cocaine crimes. Additionally, the Obama administration is reducing funding for the media anti-drug campaign. Under the Bush administration, an enormous amount of money was spent on television commercials and various other media outlets to combat drug use, but studies showed that the campaign was not effective and the money was not well spent. The Obama administration is also trying to make it easier for people to obtain student loans after being convicted of relatively minor drug crimes. Lawmakers are also proposing bills that would decriminalize small marijuana possession under the federal laws and legalize medical marijuana in more places.
Articles Posted in Drug Crimes
What is the Entrapment Defense to a Drug Charge in Florida?
Criminal defense lawyers do not often assert the entrapment defense in criminal cases, particularly drug cases, because it does not apply in most cases. However, there are cases where the entrapment defense is a valid defense when a person is charged with a drug crime in Florida.
For instance, in a recent case, a defendant was charged with trafficking in cocaine after he set up a drug deal between a cocaine supplier and a buyer who turned out to be a confidential informant (CI) for the police. His criminal defense lawyer argued that the defendant was entrapped into committing the trafficking crime. The defendant testified that he was addicted to cocaine and also used other illegal drugs, such as marijuana and heroin. He could not afford his drug habit and needed a way to make some money. The CI approached him and asked him if he could arrange a deal for a large amount of cocaine. Several times, the defendant told the CI that he was not interested. However, the CI persisted and finally offered the defendant some of the cocaine if he would arrange the drug deal. The defendant agreed and was arrested by police for trafficking in cocaine right before the deal was done.
The standard for entrapment in Florida is as follows: it is not entrapment when the police intend to disrupt ongoing criminal activity and use reasonable means to do so. Alternatively, if the police are going out of their way to take advantage of someone who is not otherwise involved in drug trafficking or a related drug crime, and they use unreasonable methods to do it, the defense of entrapment can work. However, if the state can show that the defendant is predisposed to commit the drug crime, i.e. he/she has sold or been involved with illegal drugs before or was familiar with how drug deals work and the terminology, the entrapment defense is problematic, unless the defendant can show that the police’s conduct was particularly outrageous.
Significant Increase in U. S. Border Patrol Drug Seizures
The United States Customs and Border Protection (“border patrol”) announced that they have seized a significantly greater amount of drugs in fiscal 2009 (three-fourths of the way into the fiscal year). Specifically, the border patrol seized approximately 3.3 million pounds of illegal drugs which is a 64% increase from 2008. Marijuana is still the drug that is seized the most by the border patrol at 2.6 million pounds. In addition to the marijuana, 60,411 pounds of cocaine, 4,384 pounds of methamphetamine and 1,463 pounds of heroin were seized by the border patrol. Along with the illegal drugs, $43.9 million in currency and 772 firearms were seized by the border patrol.
Invalid Drug Arrest Based on Constructive Possession of Cocaine
A common scenario for drug arrests in Jacksonville, Florida will have the police searching a car, house or other location, find a bag of drugs and arrest the person closest to it. When the police find drugs, they want to arrest someone, although proof that the person arrested possessed or owned the drugs does not always exist.
For instance, in a recent criminal case just outside of Jacksonville, Florida, the police were investigating a hotel they believed was a known drug area where crack cocaine was often sold. They observed the defendant enter and leave one of the hotel rooms several times. The police recognized the defendant as someone who had an outstanding warrant for his arrest. The police officer followed the defendant into the hotel room and found a crack pipe and cocaine in the room. The crack pipe and cocaine were on the night stand in between the two beds. The defendant was in the room along with two other people. No one in the room was in the immediate vicinity of the crack pipe and cocaine. The hotel room was not registered to the defendant.
The police arrested the defendant for possession of cocaine and possession of drug paraphernalia, perhaps because he was closest to the drugs or because they were familiar with his criminal history. However, the case was later dismissed by his criminal defense lawyer.
Florida Possession of Cocaine Case Dropped After Police Enter Home Without a Search Warrant
A recent possession of cocaine case was dismissed after a judge ruled that the police did not have a right to enter the defendant’s apartment and search the defendant for drugs without a search warrant. In this case, the police received a tip that drug activity was taking place at a specific apartment. When police officers responded to the tip, they saw that the apartment door was open. The police officers were able to see the defendant in the kitchen wiping off the counter. They noticed a digital scale on the counter along with a white, powdery substance that appeared to be cocaine and a straw. The police officers entered the apartment, handcuffed the defendant, searched him and found two bags of cocaine in his pocket.
The criminal defense lawyer for the defendant filed a motion to suppress alleging that the police did not have a right to enter the defendant’s apartment and arrest and search him. As a result, all evidence of cocaine possession should be thrown out.
Everyone has a Fourth Amendment right to be free from unreasonable searches and seizures. This Constitutional protection is strongest in one’s home. As a result, a police officer typically needs a search warrant if he/she is going to lawfully search someone’s home. There are exceptions to the search warrant requirement if the police officer can prove that he/she could see the illegal drugs from a place the police officer had a legitimate right to be, it is immediately clear that the item seen is illegal or incriminating and the officer had a lawful right to access the drugs or other incriminating item. If all of those factors are not present, the police officer can only enter someone’s home to conduct a search if there are urgent, or exigent, circumstances or the owner of the home consents to the search.
Prosecutors May Be Wrongly Charging Conspiracy in Drug Cases
In drug cases, the police are often involved in the planning stages of the drug transaction, whether by using an undercover detective who poses as a buyer or seller, by using a confidential informant or by using surveillance to record the discussions between the parties involved in the drug transaction. With that kind of evidence, prosecutors often bring conspiracy charges in addition to the drug sale and/or purchase charges once the transaction has been completed.
However, police and prosecutors will sometimes assume the elements of a drug conspiracy are in place just because there were preliminary discussions about the drug transaction and the drug transaction took place. Conspiracy is a crime completely separate from the actual drug sale and purchase crimes. In order to prove a conspiracy, the state has to prove that there was an agreement between two or more people to commit the same offense. Therefore, if the state only has evidence that two people met at a certain location at the same time and completed a drug deal, they can assume there was an agreement to buy and sell drugs but without proof of the actual agreement, there is insufficient evidence to prove a conspiracy. In other words, proof of the drug deal, even where it appears to be elaborately planned, is not sufficient evidence to prove and agreement an a conspiracy.
Finally, where the state has evidence that two people agreed to a drug deal, it still may not be sufficient to prove a conspiracy. The proof of the agreement has to establish that the parties agreed to commit the same offense. So, if the state has recordings or other evidence that a buyer and a seller agreed to a drug transaction and actually went through with it, this is not a conspiracy because the two parties did not agree to the same offense. The two parties agreed to, and committed, separate offenses, i.e. sale of drugs and purchase of drugs. There is no common goal because one is selling and the other is buying and those are separate drug crimes.
Jacksonville Police Use Reverse Sting to Make Cocaine Trafficking Arrests
Police officers in Jacksonville arrested several people at a WalMart on Philips Highway for trafficking in cocaine after setting up a reverse sting at the store, according to an article on News4jax.com. The article indicates that the five people were arrested after an undercover Drug Enforcement Agency (DEA) agent posed as a cocaine dealer who was going to sell five kilograms of cocaine to the buyers. After meeting at the WalMart, the suspected cocaine buyers were arrested and the $50,000 in cash they brought and their vehicle were seized.
Police in Jacksonville and other areas of Florida use the reverse sting technique to make various drug arrests involving cocaine, marijuana and other illegal narcotics. The plan often begins when police make an arrest of someone who provides information on another suspect and then work undercover to make a drug purchase, ior in the case of a reverse sting, make a drug sale. When the suspect arrives to buy or sell the illegal drugs, the undercover officer makes an arrest of uniform officers staioned nearby come to make the arrest.
However, these cases are not always as open and shuit as they seem. Although the police are in control of setting up the sting, criminal drug cases that result from these incidents are often lacking in evidence. One might expect to hear audio recordings of conversations between the undercover police officer and alleged drug buyers or sellers. One would also expect to see video of the actual drug deal since the police set up the meeting in advance. However, this evidence is often missing for some reason. In a case where the police set up a drug buy or sale in advance, it is not always clear to everyone the purpose of the meeting and who is involved. Without the proper evidence of criminal activity, one should not assume that each person arrested was involved in a drug deal.
What Are Police Officers Allowed to do to Search a Person’s Property Without a Search Warrant in Florida?
We recently reviewed a drug case in the Jacksonville, Florida area with the following facts. The police received a general tip of illegal drug and other criminal activity occurring in the suspect’s home. That certainly was not a sufficient basis to obtain a search warrant so the police decided to go to the house, knock on the door and ask questions of the occupant(s). This house was in a rural area. The police arrived at the house, knocked on the front door and no one answered. The police officers were not deterred and decided to walk around the side of the house into the backyard and knock on the back door. While in the backyard, the police found marijuana. The owner of the house was subsequently arrested on possession of marijuana charges.
Was this a proper search of the defendant’s property and seizure of the marijuana? No. Police officers are permitted to approach someone’s home, knock on the front door and ask questions about possible drug or other illegal activity. However, if no one answers, the police cannot just violate a person’s right to privacy in his property by entering his backyard. A person’s 4th Amendment right to be free from unreasonable searches and seizures is strongest in his/her home. Police officers cannot just enter a person’s home or backyard without specific evidence of illegal activity and a search warrant in most cases.
In this case, the criminal defense attorney filed a motion to suppress the marijuana that was found in the defendant’s backyard. At the hearing, the police officers testified that it is common in rural areas for residents to accept visitors at their back door and the police officers had some reason to believe someone was inside the house. These two points are irrelevant. It really does not matter what the custom may be for receiving visitors in this area or that the police thought someone was home but just not answering the door. What does matter is that the defendant has a Constitutional right to privacy that protected him from the police entering his property without a search warrant beyond walking up to the front door to knock.
Police May Try and Search Your House Without Probable Cause or a Search Warrant. Know Your Rights.
When police want to search a person’s house for illegal drugs or other evidence of criminal activity, the general rule is that they need to have probable cause and a search warrant signed by a judge to do so. However, there are circumstances where a police officer may be able to search a person’s home with little more than a hunch. Police officers often conduct what are called “knock and talks”. For instance, if a Jacksonville Sheriff’s Office police officer thinks there may be illegal drugs or other evidence in a person’s home, he/she may “knock” on the door and “talk”, or ask the owner or occupant if he/she can search the house. If the owner or occupant says yes and consents to the search, the JSO officer may be able to search the house without probable cause or a search warrant.
Under Florida search and seizure laws, a police officer does not need to have probable cause and a search warrant or even reasonable suspicion to conduct a knock and talk. There are cases which allow a police officer to approach a house, knock on the door and ask for consent to search for drugs based on only a hunch or educated guess. The theory is that if a sales person or stranger is allowed to knock on a person’s door and ask a question, a police officer can too.
When a police officer conducts a knock and talk to look for illegal drugs or other evidence, the issue is whether the owner or occupant gives consent to search freely and voluntarily. Even where the owner or occupant agrees to a search, that consent may not be considered free and voluntary under the law if certain factors are present such as a prolonged detention by the police officer(s), repeated requests to search, a threat that the police officer(s) will get a search warrant if consent is refused or any sort of show of force or intimidation by the police officer(s) to obtain consent. If police do anything more than simply ask for consent to search the house, the consent may not be valid under the law.
Medical Marijuana Laws Becoming More Prevalent in the United States, But Not the South
In some states, although not Florida, it is legal to purchase and smoke marijuana for medicinal purposes. Of course, in other states, such as Florida, purchasing and possessing a certain amount of marijuana will get you charged with a crime that carries a minimum mandatory three year prison sentence. We have discussed previously on this blog the travesty of some of the marijuana criminal laws and the financial black hole the war on drugs has created. We do feel that at some point in the future, viewpoints and laws on marijuana are likely to change.
Enacting laws that allow people who are sick and in pain to smoke marijuana to relieve their symptoms is a slow and incremental process. The laws typically have to be proposed and rejected several times before they are passed. In some states, like Florida and other states in the South, medical marijuana laws are much farther from a reality than they are in many states in the West. However, according to an article on www.Stopthedrugwar.org, medical marijuana is legal in 13 states and at issue this year in 19 other states. The article indicates that in 6 of those 19 states, the medical marijuana bill is favored to pass. Most of those 6 states are in the Northeast; none of them are in the South.
We do look forward to the day when nonviolent drug users, particular marijuana users, do not clog up the criminal justice systems, or worse, the jails and prisons, and drain the financial resources of the various states. Unfortunately, in the South, that day is still a long time coming.