Articles Posted in Drug Crimes

Consider a scenario where a Jacksonville police officer suspects a person is involved with illegal drugs (such as marijuana, cocaine, heroin, ecstasy or methamphetamine) and enlists the help of a confidential informant (aka a CI) to set up a drug deal with that person. For instance, the Jacksonville police officer may ask the CI to ask the suspect to deliver a container with drugs to another person who happens to be an undercover Jacksonville Sheriff’s Office officer. The police officer may encourage the CI to do this by offering money or a good deal on criminal charges the CI is currently facing. So, the CI approaches the suspect and tells him that the CI will give the suspect some money if the suspect takes the container, delivers it to another person and returns with the money the other person gives him. When the suspect delivers the container, he is arrested by the undercover police officer.

The suspect is then charged with a drug possession and/or distribution crime. At the trial, the suspect’s criminal defense lawyer wants to know who this CI is so the CI can be questioned about the suspect’s role in this incident. In Florida, does the State have to reveal the identity of the CI to the criminal defense attorney?

Normally, in a criminal prosecution in Florida, the State has a limited right to withhold the identity of a CI. Of course, if the State intended to call the CI as a witness at the trial, the State would have to alert the defense to that fact and give the defense the information identifying the CI. But assuming the State does not intend to call the CI as a witness at trial because the State feels they can prove their case with the testimony of the undercover officer alone, the criminal defense lawyer could still force the State to reveal the identity of the CI if he/she can establish that the CI is relevant and helpful to the client’s defense. For instance, in this case, the CI may be helpful to establish two possible defenses. The first would be the defense of entrapment which is further discussed here. The second defense would be that the suspect did not know that drugs were in the container he delivered. The testimony of the CI could be relevant and helpful for either defense. If so, the defense may be successful in learning the identity of the CI and using him/her as a witness for the defense at trial.

Entrapment is a word that is often misused and misunderstood. In Florida criminal law, entrapment is a defense to a crime, such as sale of drugs or drug trafficking, that can be used in limited circumstances. For instance, in a recent criminal case out of Florida, a defendant was charged with the crime of sale of marijuana (aka sale of cannabis). The defendant was not known to be a seller of marijuana but did use marijuana from time to time. The local police decided to use a friend of the defendant’s to encourage the defendant to sell marijuana to him. The “friend”, or confidential informant, was facing criminal drug charges himself and agreed to help the police in exchange for having his charges dropped. The friend contacted the defendant and asked the defendant if he could sell drugs to the friend. The defendant said he did not have any drugs and refused. The friend proceeded to call the defendant 18 times requesting to buy marijuana from him. Some of these calls were made late at night and some were to his work. Finally, the defendant agreed to buy marijuana from a dealer and split it with the friend. None of the initial contacts and communications were monitored by the police, just the ultimate exchange of the marijuana.

The defendant was then charged with sale of marijuana and later filed a motion to dismiss the charges claiming he was entrapped into selling the drugs. Entrapment is a defense that is not successful often, but it was applicable in this case. Generally, the defense of entrapment applies when a defendant is induced to commit a crime that he/she would not normally commit. If the defense is successfully presented, the charges are dismissed. In this case, the court focused on the conduct of law enforcement and the friend and found that the defendant was improperly entrapped into committing the drug sale. Some of the relevant factors in favor of the defense included: the police had no reason to believe the defendant was selling drugs before this incident, the “friend” had a lot of incentive to make the defendant agree to sell him drugs including payments per drug deal and the dismissal of his criminal charges and the police never supervised the interactions between the friend and the defendant.

While the defense of entrapment is not often successful, where the police find someone who is not predisposed to commit a crime and use excessive means to get the person to commit the crime, entrapment can be successfully asserted as a defense to have criminal charges dismissed.

A recent poll indicated that a majority of Americans support eliminating minimum mandatory sentences for nonviolent crimes. A minimum mandatory sentence is a sentence that is prescribed by the state legislature or Congress that indicates the minimum, or lowest, sentence a person can get after being convicted of certain crimes. It takes the discretion away from the judge and the prosecutor who have more specific knowledge of the particular facts of the case. One argument in support of minimum mandatory sentences is that they equalize the treatment given to different people who are convicted of similar crimes. However, in taking away the discretion of prosecutors to recommend lower sentences and judges to issue lower sentences, the results are often unfair and fail to take into consideration the mitigating circumstances of each individual case. They also prevent judges from ordering particular defendants to serve a more appropriate and rehabilitative sentence, such as one incorporating treatment, and often limit judges to ordering a more inappropriate and costly sentence that only incorporates prison. This can be particularly true for nonviolent crimes such as drug crimes.

The recent report indicated that 78% of the people polled felt that judges, as opposed to legislators, should decide what sentence a particular criminal defendant should get after pleading guilty or no contest to a nonviolent crime or being found guilty of a nonviolent crime after a trial. This is consistent with the idea that the judges who know more about the specific cases and individuals are better equipped to decide what sentence is appropriate.

Recent reports have also indicated that minimum mandatory sentences have had no beneficial effect on drug use and abuse, drug addiction or drug trafficking. Often, these minimum mandatory sentences affect drug users and small time drug dealers as opposed to drug traffickers and suppliers. However, minimum mandatory sentences for nonviolent crimes like drug crimes have significantly increased state and federal costs and ensured that those funds have gone toward incarceration and inmate housing as opposed to drug treatment and prevention which might reduce the number of nonviolent drug offenders who go through the criminal justice system.

According to recent reports and articles, high schools across the United States are increasingly drug testing their students. Court cases that have addressed the legality of drug testing in high schools have resulted in opinions that allow high schools to drug test students as a prerequisite to joining school sports teams and extracurricular activity organizations. Students who refuse to consent to random drug testing can be banned from playing sports and participating in extracurricular activities.

President Bush instituted a policy to expand drug testing in high schools and approved millions of dollars towards that expansion. One way the federal government has encouraged high schools to drug test their students is to reward federal grant money to those schools that institute the drug testing policies. Reports indicate that 4-7% of all high schools in the U.S. have such random drug testing policies, and the numbers are increasing by about 100 per year.

Other than the obvious trust and right to privacy issues implicated by the high school drug testing policies, critics point to various studies (like this one) that indicate that such policies have no effect, or a negative effect, on drug use among high school students.

Jacksonville police and police officers all over Florida commonly use drug dogs or K-9’s that are trained to detect the odor of marijuana, crack, cocaine, methamphetamine and other illegal drugs to search for those drugs in vehicles and other areas. However, there is some question as to how reliable these drug dogs are in detecting the odor of illegal drugs. Drug dogs and the police officers who handle them are supposed to be trained and certified to assure that they are both skilled and qualified to accurately detect the odor of illegal drugs and give the appropriate signal in those circumstances. However, not all of these drug dogs are so qualified according to recent criminal cases and news articles.

In the traffic stop scenario, a common drug dog search may proceed as follows. A Jacksonville police officer would pull a driver over for some sort of moving traffic violation. If the Jacksonville police officer feels like he/she sees indications of drug possession, the officer may call for a drug dog to walk around the vehicle and smell for the odor of illegal drugs. Without probable cause to believe that drugs are in the vehicle, the police officer should conduct the drug dog search while the driver is in the process of getting his/her ticket for the moving violation. In other words, if the police officer has finished giving the driver a ticket or warning, that driver is free to leave and cannot be ordered to stay for the drug dog search unless the police officer has specific reasons to believe that the driver is committing a crime, such as possession of illegal drugs.

The police officer will either have his own drug dog present or he/she may call for a drug dog over the radio. Assuming a drug dog is present, or arrives, during the ticket-writing process or there is other specific evidence to suggest drugs are present, the police officer may have the right to walk the dog around the vehicle. As the drug dog walks around the vehicle, the dog may give a certain signal or alert that the odor of drugs is present. At that point, the police officer will likely search the vehicle for the suspected drugs.