Drug Crimes

A Defendant in Florida Does Not Always Have a Right to a Jury Trial in a Criminal Case

Published on: January 24, 2017 | by Lasnetski Gihon Law

Jury-Room-300x225 Most people have heard through school, interaction with the judicial system, television shows or otherwise that there is a constitutional right to jury trial for people charged with a crime. This is usually true, but it is not true in every case. There is an exception for certain minor crimes where a defendant does not have a right to a jury trial and the judge decides whether or not the defendant is guilty of the crime. That exception involves crimes where the defendant cannot be sentenced to jail or prison for more than six months. In other words, if a defendant is charged with a minor crime and the maximum penalty is six months or less in jail, the defendant is not entitled to a jury trial. The parties might agree to a jury trial or the judge might insist on a jury trial, but the law does not give the defendant a right to a jury trial if he/she wants one and the judge will not allow it. Of course, this would only apply to minor misdemeanors, and it would never apply to felonies. However, some people can be seriously impacted by any criminal conviction no matter how minor the charge or by any time in jail and may want a jury trial to protect his/her rights.

It is important to understand that a defendant is always entitled to a jury trial in a criminal case if the potential penalty for a conviction of the crime is more than six months. It does not matter if the judge is not likely to sentence the defendant to more than six months in jail or even if the judge says he/she will not do it. As long as the law allows for a sentence of more than six months in jail, the defendant can have a jury trial.

For instance, there was a case just south of Jacksonville, Duval County, Florida where a defendant was charged with possession of less than an ounce of marijuana. This is a misdemeanor crime, but as ridiculous as it may seem, it carries a potential penalty of a year in jail. The defendant wanted a jury trial, but the judge denied the request because he said he had no intention of sentencing the defendant to jail time if he was convicted of the crime. The defendant had his trial with the judge as the decision maker (referred to as a bench trial), the judge found him guilty and the judge sentenced him to no time in jail.

Florida Police Executing Arrest Warrant Do Not Have a Right to Search Surrounding Property

Published on: January 20, 2017 | by Lasnetski Gihon Law

Police-Officer-with-Arrest-Warrant-illustration-300x261 In Florida, the general rule is that the police cannot search a person’s property without a search warrant or specific consent from the owner of that property. There are exceptions, of course, but a police search without a search warrant or consent is generally going to be illegal. When the police arrest someone, they can always search that person because the police have a right to determine if the suspect has any weapons or evidence that can be destroyed on him/her. However, that search is generally limited to the person and only after a valid arrest. The police cannot go searching a person’s vehicle or home just because of an arrest.

In a recent drug case near Jacksonville, Florida, the police had an outstanding warrant for the defendant and received a tip that he was at a particular residence. They located the suspect and arrested him in the front yard. The police then walked around to the back of the residence and looked through a window where they saw guns and illegal drugs inside the house. They used this information to obtain a search warrant to search the house and seize the guns and marijuana.

The criminal defense lawyer filed a motion to suppress the evidence of the guns and marijuana arguing that the police did not have a legal basis to walk to the back of the defendant’s property to look through the window. Police cannot walk into a person’s home to search without a search warrant or consent, and this also applies to what is called the curtilage of a home, which is the area of land surrounding a residence including any closed structures. In this case, the area next to and behind the house was considered the curtilage. It is often considered the area adjacent to the home where the public is not normally expected to go. For instance, a member of the public might walk up a person’s driveway to knock on the front door, but he/she is not likely to walk around a house and look through windows on the side or back of the house.

Police in Florida Can Knock on Your Door Without a Warrant, but Their Access is Limited

Published on: December 16, 2016 | by Lasnetski Gihon Law

In order for the police to be able to search your home for evidence of a crime, they either have to have a valid search warrant or they have to have consent from the owner or someone with proper authorization to give that consent. For the latter method, the police are generally allowed to walk up to your front door, knock and ask to come inside. As long as people give the police permission to come inside their homes and search, the police almost never have to get search warrants by explaining to a judge what legal reason they have to enter a residence. Therefore, it is important for people to understand that they can always (and usually should) refuse when police ask to search their property.

Unless your property is gated or otherwise partitioned from public access, the police can go to your door, knock and try to get permission to enter in Florida. What can the police do if you do not answer the door or if you are not home? If you are not home, they cannot enter since they would not have permission. They would have to get a search warrant from a judge. If you are home, the police can see or hear that you are home and you do not come to the door, can they enter the home?

In a recent case near Jacksonville, Florida, police went to the defendant’s apartment to investigate a battery call, but they also had information that the defendant was selling marijuana. When they arrived at the apartment, they knocked, but the defendant did not answer. The police walked a few feet to the front window and were able to see the defendant inside. They knocked on the window, but the defendant still did not answer. They sent the defendant a text message asking if he would come outside, and he still did not answer. At this point, the police claimed to have smelled marijuana coming through the air conditioning unit and then got the apartment manager to let them inside the apartment. (If this testimony sounds ridiculous, the criminal defense attorney had an air conditioning professional testify that this would not have been possible with the defendant’s air conditioning unit. This is another sad statement as to the lengths police will go to arrest people for possessing a plant.)

The War on Drugs Sometimes Causes Police Officers to Forget About the Constitution

Published on: November 4, 2016 | by Lasnetski Gihon Law

Police officers like marijuana arrests because they are easy- they don’t require much work, they don’t require much thought, and they don’t require much, if any, investigation. This is one of many reasons why dealing with the war on drugs that primarily serves to waste money and increase the size of government is so difficult Despite the government’s desire to continue the war on drugs, it is not an excuse to disregard the Constitution and the right to be free from unreasonable searches and seizures.

In a recent possession of marijuana case near Jacksonville, Florida, the suspect was riding his bicycle at night without proper lighting. There was no evidence of any criminal activity, but riding a bike without proper lighting is a traffic violation. Based on this lighting malfeasance, two police officers saw fit to stop their vehicle and detain the suspect. The officers asked the suspect for his ID, and he opened his bookbag to retrieve it. The suspect tried to shield the officers from seeing into the bookbag when he obtained his ID but did not act suspiciously. Based on this, the officers handcuffed the suspect and seized the bookbag. The officer then claimed to smell marijuana, searched the bookbag and found small bags of marijuana inside. The suspect was arrested for possession of marijuana.

The criminal defense lawyer filed a motion to suppress the marijuana evidence. The police do have a right to stop someone for committing a traffic violation, even one as minor as this one. However, they can only stop the person for the purpose of writing a ticket for the violation. They cannot detain the person for any longer period of time or seize the person by handcuffing him unless there is specific evidence of criminal activity. In this case, there was none. The suspect complied with the officer and obtained his identification from his bag. If the suspect did so in a way the officer did not like, that is not a specific indicator of criminal activity. If the police officer claimed he searched the bag because it could have had a weapon or drugs without specific evidence, then any police officer could search anyone with a bag, a car, pockets, etc and claim a suspect could have something illegal in a place the officer cannot see. That is not how the Constitution works.

Florida Man Arrested for Firearm and Marijuana Charges After Firefighter Spots Illegal Items in his Garage

Published on: October 21, 2016 | by Lasnetski Gihon Law

In Florida, a person enjoys special protection from illegal searches and seizures in his/her home or other residence. At a minimum, this means that police officers and other agents of the state cannot just come into a person’s residence looking for evidence of criminal activity without a search warrant or valid consent from someone who is authorized to provide consent. However, there are exceptions to this rule that would allow a police officer or other state agent to come into a person’s home. If they find illegal items such as guns or drugs once they are legally inside the residence, a criminal investigation can initiate.

In a recent case south of Jacksonville, Florida, firefighters and police officers responded to a fire in the suspect’s residence. Police and firefighters are permitted to enter someone’s home without consent or a search warrant to deal with an emergency health or hazard issue like a fire. Of course, they must do so only for the purpose of assisting with the emergency and not for the purpose of looking for evidence of a crime. However, if they see evidence of a crime while in one’s home for other purposes, they are not required to ignore it. In this case, the firefighters entered and exited the house through the garage. While doing so, they saw drug paraphernalia on a table in plain view in the garage. After seeing the drug paraphernalia, the firefighters went back inside to make sure there was no additional fire threat and saw marijuana in a closet. They informed the police who detained the defendant. The police officers requested consent to search the house from the defendant. When the police searched the house, they found more marijuana, guns and drug paraphernalia. The defendant was arrested for possession of a firearm by a convicted felon and possession of marijuana with the intent to distribute.

The criminal defense lawyer filed a motion to suppress the evidence of the marijuana, guns and drug paraphernalia arguing that the police did not have a legal basis (a search warrant or valid consent before the defendant was detained) to search the house. The court found that the search and seizure related to the marijuana and drug paraphernalia were legitimate. The firefighters had a legal basis to be inside the house putting out the fire, and they saw the marijuana and drug paraphernalia in plain view while legally in the house. They had a right to inform the police about those items. On the other hand, the guns and items found after the defendant was detained and the police searched the house were suppressed. At that point, the police were obligated to get a search warrant to search the house for additional evidence. They never attempted to do so. As a result, the defendant could be charged with possession of marijuana with intent to distribute and possession of drug paraphernalia, but the state could not go forward with any charges related to the guns due to the illegal search.

Manufacturer of Highly Dangerous Opioid Drug Fighting (and Paying) to Keep Marijuana Illegal

Published on: September 18, 2016 | by Lasnetski Gihon Law

One sad fact about elections and political movements- they are expensive, and the costs seem to increase each year. As more and more states realize there is a medical benefit to marijuana and it is ridiculous to have it on the list of Schedule I drugs along with substances like heroin, more states are moving to legalize medical marijuana. Additionally, as more and more states realize what a complete waste of taxpayer money and government resources it is to have police arresting marijuana users and sellers and have prosecutors bring criminal cases against them, more states are seeking to legalize marijuana completely.

Marijuana legalization efforts are finding their ways on ballots all over the country. As a result, there are campaigns for and against marijuana legalization. Any such campaign needs to be well financed for success. Do you know one of the primary groups funding the effort to keep marijuana illegal and to keep taxpayer money going towards the arrest, prosecution and incarceration of marijuana users and sellers? Not surprisingly, it is the pharmaceutical industry. The reason is obvious. When people decide to treat their pain, anxiety, seizures, depression, PTSD and many other afflictions naturally with marijuana, they are not paying the exorbitant prices required to treat those same medical problems with synthetic drugs. And that results in less profit for pharmaceutical companies.

According to a new study published in HealthAffairs, in the seventeen states that have authorized medical marijuana as of 2013, fewer prescriptions for synthetic painkillers and other drugs were written. For instance, the average doctor in those states prescribed 265 fewer doses of anti-depressants, 486 fewer doses of seizure medication, 562 fewer doses of anti-anxiety medication and 1,826 fewer doses of painkillers each year. A more thorough summary of the results of the study can be found in this Washington Post article.

As the Federal Government Keeps Marijuana as a Schedule I Drug, a New Substance is Added

Published on: September 9, 2016 | by Lasnetski Gihon Law

The federal government maintains a list of Schedule I drugs. According to the United States Drug Enforcement Agency, these are substances that they have determined have a high potential for abuse and have no accepted medical benefit. You do not have to look far down the list to see how much of a sham it is considering that heroin, bath salts and marijuana are on this same list. One of these is not like the others. We were hoping that the government would come to its senses and remove marijuana from the list, for several reasons, not the least of which is that it is prescribed for medicinal purposes all across the country now, by actual doctors who have learned about medicine in school and in practice. Unfortunately, as is often the case, we continue to wait for the government make a rational decision here that actually helps people.

So, marijuana remains on the list. And a new substance has been added. A substance called kratom is now a Schedule I drug according to the DEA. Kratom is a plant from Southeast Asia that people use to treat pain. Many people use it to avoid taking pain pills, which of course are perfectly fine to be sold en masse to people in the United States. The DEA has added kratom to the Schedule I drug list because of two substances found in the plant- mitragynine and 7-hydroxymitragynine. Kratom has similar effects to pain pills, which is why people use it instead of pain pills. Apparently, it is addictive, like pain pills, but unlike pain pills, it is not something that people overdose on, for the most part. The percentage of kratom related deaths compared to kratom use is extremely low, and significantly lower than overdoses and deaths relating to painkillers.

While decisions such as these create more laws and more government, they also serve to push people to more dangerous pharmaceutical products. For substances that are not particularly dangerous and/or are much less dangerous than prescription drugs used for similar purposes, these rules and laws and clearly counterproductive. However, given that these rules and laws increase government, increase the need for prisons and increase profits for pharmaceutical companies, you have to wonder what exactly the real purpose is.

Federal Court Says Police Cannot Stop Vehicle with License Plate From a Marijuana State

Published on: August 25, 2016 | by Lasnetski Gihon Law

While we certainly agree that having less government in our lives is a good thing, not every government agency shares our sentiments. Specifically, as it relates to the war on drugs, “small government conservative” politicians and law enforcement continue to expend limited resources and money to detain and arrest people far marijuana crimes. We are happy to see states come to their senses and legalize marijuana, but those legalization efforts have come with unfortunate ramifications for people from those states, even people who do not use the Cannabis plant.

Some police departments near legal marijuana states like Colorado are taking it upon themselves to conduct pretextual traffic stops based on the fact that the vehicle has a license plate from a state where marijuana is legal. For instance, when police officers or highway patrol see a vehicle on the highway driving a few miles per hour over the speed limit, they conduct a traffic stop for speeding if the vehicle has a license plate from a legal marijuana state. They might pull a Washington state driver over for changing lanes without using a blinker when they would never make such a traffic stop for someone else. This is referred to as license plate profiling.

One Colorado driver was not happy with this particular form of government excess and sued the Kansas Highway Patrol. The driver was pulled over because he had a temporary tag from Colorado that was allegedly difficult to read. There was nothing illegal about that, and the Kansas police gave him a warning. Thereafter, the Kansas police asked the driver if they could search his vehicle. He refused, but the police called a drug dog to the scene. The drug dog went around the vehicle, but no illegal drugs were found. The driver sued the Kansas Highway Patrol for violating his constitutional rights based on the illegal search and seizure.

Florida Court Finds That Police Pressing Key Fob is Not an Illegal Search

Published on: August 22, 2016 | by Lasnetski Gihon Law

In Florida and elsewhere, people have privacy rights in their vehicles. This means that the police generally cannot search a person’s vehicle for drugs or other evidence of criminal activity without consent from the owner or a search warrant. There are some exceptions to this general rule, but the police cannot just go into a person’s vehicle and search it in almost any situation.

Vehicles are more advanced now, and rather than having the traditional key that is placed into the lock to open a vehicle like a regular door, many cars come with key fobs that can open a vehicle by pressing a button. Additionally, many key fobs have a button that can be pressed that will cause the vehicle to honk so the owner can find it in a crowded parking lot.

In a possession of cocaine case south of Jacksonville, Florida, the defendant was arrested for a public disturbance. The police officer searched the defendant after the arrest. Police officers are allowed to search people immediately after an arrest to make sure a person going to jail does not have any weapons or anything else that would be a threat to the police officer or anyone else. When the police officer searched the defendant, he found a key fob. The police officer pressed a button on the key fob, and the defendant’s vehicle’s alarm went off. The officer went to the vehicle and saw a bag of cocaine on the seat. The officer was able to see the cocaine in the vehicle by looking through the window. The bag of cocaine was ultimately seized, and the defendant was arrested for possession of cocaine.

Police in Florida Could Not Prove Constructive Possession of Drugs Found in Hotel Room

Published on: August 19, 2016 | by Lasnetski Gihon Law

For any type of drug possession case, there are two ways the state can prove the crime in Florida. The easiest way is with an actual possession case. Actual possession is what it sounds like. If a person is holding the drugs or has drugs in his/her pocket or is actually possessing the drugs in any other way, that is an actual possession case that is likely easy to prove. However, even if a person does not have actual possession of the drugs, the state can still prove a drug possession case. The other form of possession is called constructive possession. This can be proven when the state establishes that the defendant knew of the drugs and had some ability to control the drugs. For instance, I have constructive possession of the sunglasses in my car even though they are nowhere near me. I know they are there, I have the keys to the car and I am the only one who drives my car.

Constructive possession cases get difficult for the state when there are multiple people who have access to the drugs. For instance, in a possession of Methamphetamine case near Jacksonville, Florida, police responded to a suspicious person call at a hotel. They went to one of the rooms and knocked on the door. A man and a woman were inside. The police got consent to search the room and found Methamphetamine in a pocket of a jacket in the room. It was not clear if the jacket belonged to the man, the woman or someone else. There was also a syringe presumably used to shoot the drugs in the room. The police asked the woman if her DNA would show up on the syringe, and she said yes. She was arrested for possession of Methamphetamine and possession of drug paraphernalia.

This case was ultimately thrown out. The state could not prove that the woman had knowledge and control over the Methamphetamine to the exclusion of the other guy in the room or anyone else who could have been in the room before the police arrived. The state lacked evidence that the jacket belonged to the woman. It could have belonged to the man or someone else. The state did not get any statements tying the woman to the Methamphetamine or the jacket. There was no other meaningful evidence connecting the woman to the Methamphetamine or the jacket that was sufficient to prove possession. In other words, the state did not have enough evidence to prove that any one person possessed the drugs as opposed to any other person. In these situations, constructive possession cases fail. If the police had obtained a statement from the woman or a witness or fingerprints or something indicating the jacket belonged to the woman, they would have had a stronger case. However, if multiple people have access to the drugs and the evidence does not specifically point to one of those people, the constructive possession case will likely fail.