Drug Crimes

Florida Drug Case Reversed Where Police Seize Box with Unidentified Pills Inside

Published on: May 19, 2014 | by Lasnetski Gihon Law

In Florida, it is fairly common for the police to make an arrest when they find a person with pills but without a prescription. This is one of the ugly side effects of the disastrous war on drugs- drug arrests are easy, they are good for stats and police often take an arrest first, ask questions later approach to these cases. Additionally, the Constitution often takes a backseat when an opportunity for an easy drug arrest presents itself. This is often the case with pill cases where police make arrests even when the suspect claims to have a prescription or even where the police do not even know what the pill is, but suspect the worst.

In a recent case near Jacksonville, Florida, the police stopped the defendant for a traffic violation. During the traffic stop, the officer asked the defendant if he could search her car. She agreed. The police officer found a pill container with some pills inside he could not identify. The police officer did not get permission to take the pill container or search it. He detained the defendant and asked her about the pills. The police officer ultimately took the pill container, went to his vehicle, looked on his computer and found that the pills were Ritalin and Tramadol. The defendant was arrested for possession of drugs.

The criminal defense lawyer filed a motion to suppress the evidence of the drugs arguing the police officer did not have consent or probable cause to search the pill container. It is not illegal to have pills and since the police officer did not know what the pills were when he seized them, there was nothing about the pills that indicated they were illegal. In other words, because pills are usually not obviously illegal based on their appearance, the police officer had no probable cause at the time to seize the pills for further investigation. Somehow, the trial judge did not see the obvious Constitutional violation and allowed the drug evidence to be submitted to a jury. Fortunately, the Appellate Court saw the obvious lack of probable cause and found the search and seizure unconstitutional.

Florida Prescription Drug Case Reversed Where State Uses Database to Show Defendant Had No Prescription

Published on: May 16, 2014 | by Lasnetski Gihon Law

In the Jacksonville, Florida area, we see a lot of drug cases involving defendants who are arrested for having prescription drugs without the prescription. The drug laws in Florida are very harsh, and prescription drug cases can come with serious penalties, sometimes with lengthy minimum mandatory prison sentences.

When a person is investigated, arrested or charged with a possession of a drug, it is a defense to the charge if the person has a valid prescription for the drug. In many cases, the police find a person in possession of some drug, the person will tell the police officer he/she has a prescription for it but not in his/her possession and the police officer will make the arrest anyway. At that point, it is up to the criminal defense lawyer and the defendant to obtain the prescription information, provide it to the prosecutor and get the drug charges dropped.

In a recent case involving possession of Methadone and Xanax in Jacksonville, Florida, the defendant was stopped in his vehicle and the police officer found Methadone and Xanax in a small pill bottle. When the drug is found in a bottle other than the one provided by the pharmacy for that particular drug, the police are almost always going to make the arrest if the prescription is not present at the scene. That is what happened in this case. The defendant said there were prescriptions for the Methadone and Xanax, but he did not have them at the time. At the trial, a prescription was produced for the Xanax but not the Methadone. He said the pharmacy that issued the Methadone had closed. The defendant relied on testimony only to indicate there was a valid prescription for the Methadone.

Can an Unauthorized Driver of a Rental Car Challenge an Illegal Serch in Florida

Published on: April 19, 2014 | by Lasnetski Gihon Law

In Florida, the police are generally not allowed to search a suspect’s vehicle unless the driver or owner gives consent to search, the police have probable cause to believe there is evidence of criminal activity inside or there is an arrest of an occupant of the vehicle and there is a danger that evidence may be compromised. The police cannot stop a driver and then search the vehicle based on any assumptions or anonymous tips that there may be illegal drugs or other evidence in the vehicle.

When the police conduct an illegal search, the defendant’s remedy is to have the criminal defense lawyer file a motion to suppress to have any evidence obtained as a result of the illegal search thrown out of court. However, the defendant must have what is called standing in order to have the criminal defense attorney properly file the motion. Standing is another word for the legal right to challenge the alleged illegal search. If the driver who was arrested also owned the vehicle, or had authorization from the owner to drive the vehicle, that defendant would likely have standing to challenge an illegal search. Likewise, if a person rented the vehicle, the renter would have standing to challenge an illegal search. But what about a person driving a rental car that was not listed as an authorized driver?

In a recent drug case near Jacksonville, Florida, a police officer stopped the defendant for traffic violations. The officer asked for consent to search the vehicle, but the driver refused. The officer noted the driver was driving a rental car and asked to see the rental car agreement. The police officer saw that the agreement mentioned only one authorized driver, and the person driving was not him. The police officer ultimately searched the vehicle and found marijuana and marijuana paraphernalia inside. The driver was arrested for possession of marijuana with intent to sell.

Can Police in Florida Come Up to Your House and Knock if You Have a Closed Gate?

Published on: April 4, 2014 | by Lasnetski Gihon Law

In Florida, the police generally need a search warrant to enter your home and search for illegal drugs or other evidence of criminal activity. When they do not have a search warrant, they can still try and gain legal access to your home by walking up to your door, knocking, asking some questions and requesting consent to enter and search your home. For the most part, police officers have the same right to approach your front door, knock and ask questions as anyone else does. If you decide to open your door, answer questions from the police, let them come in and then they find guns or drugs or other evidence, that was your choice.

However, there are limitations to this. If there is free access between your street and your front door, the police can typically just walk right up and knock. On the other hand, if you have a closed gate or barbed wire or some other obstruction preventing someone from walking up to your door, the police usually cannot cross that obstruction to get to your front door to knock. The police cannot likely open a closed gate or climb a fence to get to your door. They certainly cannot break or unlock anything to get to your door without a search warrant.

In a recent trafficking in marijuana case near Jacksonville, Florida, the defendant lived on a large piece of property that was surrounded by a barbed wire fence and also had a chain linked fence blocking the long driveway. He had “No Trespassing” signs on the fence. After receiving an anonymous tip of drug activity, the police went to the house to do what they call a “knock and talk” (go to the door, knock and hope the suspect starts talking). The police officers opened the gate and drove down the driveway and ultimately approached the front door. The defendant answered, spoke to the police and they ultimately discovered a large amount of marijuana on the property.

Knock and Announce Search Warrant in Florida Requires Police to Allow Occupant Time to Open Door, But Not Much Time

Published on: March 24, 2014 | by Lasnetski Gihon Law

In Florida, there is such a thing called a knock and announce search warrant. If the police have sufficient evidence to believe there are drugs or other evidence of criminal activity in a residence, the police can obtain a search warrant that allows them to search the premises. That does not necessarily give the police the right to barge into the home and start searching. It can be a serious safety risk both to the occupants and the police if they just barge into the home unannounced.

A knock and announce warrant requires the police to knock on the door, announce they are police and give the occupant the opportunity to let the police inside. However, if no one lets the police in, the police can then break open a door or window to gain entry.

One question that comes up is whether the police complied with the requirements of the knock and announce search warrant. Often, it is question of whether the police gave the occupants sufficient time to open the door before busting through the door. On the one hand, there is the safety issue with the police coming into one’s home unannounced. On the other hand, if the police announce themselves and wait too long, the occupants could dispose of drugs or other evidence that are in the residence.

State Can Charge Conspiracy to Traffic in Drugs Based on Phone Conversations in Florida

Published on: March 17, 2014 | by Lasnetski Gihon Law

In Florida, trafficking in cocaine or another drug normally means a person is caught possessing a large quantity of drugs or distributing a large quantity of drugs. How much drugs needs to be possessed or distributed to qualify for a trafficking charge depends on the type of drug. For pills and heroin, it does not take much. For cocaine, it takes more but still not as much as people might think. For marijuana, one would need to have quite a lot. If a person does have a sufficient quantity of drugs to be arrested for trafficking, the charge usually comes with a severe mandatory minimum prison sentence.

Conspiracy to traffic in drugs is also a very serious criminal charge in Florida. For a trafficking charge, the state does not need to prove the defendant actually possessed or distributed the drugs. The state can move forward with a conspiracy charge if a person merely agreed to participate in the trafficking. A fairly common situation occurs when the police arrest a lower level drug dealer and then convince that person to cooperate with the police. That person may agree to wear a wire and also give up the phone numbers of other drug dealers so the police can get a wire on their phones. If the police are able to record a person discussing selling a certain quantity of drugs over the phone, that may be sufficient for a serious conspiracy to traffic charge. Conspiracy to traffic in drugs means that a person comes to an agreement with another to traffic in drugs. An actual drug deal does not have to take place. The defendant may not even touch any drugs. If he/she comes to some sort of understanding with another to distribute a sufficient quantity of drugs, it can be conspiracy to traffic drug charge.

Federal Government to Propose Lighter Sentences for Non-Violent Drug Offenders

Published on: March 13, 2014 | by Lasnetski Gihon Law

It is not always clear when a criminal case will be handled by the federal government, i.e. the United States Attorney’s Office, or the state or local government, i.e. the state attorney’s office here in Florida. For drug cases, the federal government typically likes to handle the bigger cases, and the cases that involve small amounts of drugs normally stay on the state or local level. If drugs and guns are involved, the federal government often likes to handle those cases because the federal statutes and sentencing guidelines have harsh penalties for people convicted in those cases.

Whether a defendant is better off in state court or federal court depends on a lot of factors such as the nature of the case, the defendant’s criminal history, the judge, the county and other factors. The federal system does have fairly severe potential penalties for all varieties of drug cases, but again, whether a defendant actually gets a severe penalty depends on many factors. However, in federal cases, hopefully help is on the way for those people charged with non-violent drug offenses. We have discussed at length how our prisons are full of non-violent drug offenders. This isn’t just an enormous waste of taxpayer money, but it is also counterproductive if the idea is to help people get off of drugs.

Some government officials seem to finally acknowledge this problem and are doing something about it. Attorney General Eric Holder recently announced proposed reductions to the federal sentencing guidelines for non-violent drug offenders. The federal sentencing guidelines are guidelines that judges strongly consider when sentencing a defendant for any crime in federal court. These new guidelines would apparently reduce prison sentences by eleven months, on average. This, of course, would also reduce taxpayer expenditures going towards the housing of non-violent drug offenders. It is expected that these new, more lenient guidelines would go into effect later in 2014.

Federal Sentencing Reform Bill Going Through Congress

Published on: February 8, 2014 | by Lasnetski Gihon Law

In order to address federal prison overcrowding issues, among other issues, the Senate is working on a bill that would reduce the federal prison population and also address racial disparities among federal inmates. The law would be called the Smarter Sentencing Act. Notwithstanding the obvious pessimism regarding anything considered “Smarter” successfully coming out of Congress these days, the bill does appear to be designed to address some of the serious problems that result in unnecessary and unnecessarily long prison sentences. For instance, the bill would cut some mandatory minimum sentences and give judges greater discretion to sentence defendants under the mandatory minimums. Mandatory minimum sentences, created by legislators who have no knowledge of the circumstances of a particular case and a particular defendant, may be the worst policies that contribute to unnecessarily long prison sentences.

The bill would also make more egalitarian crack cocaine sentencing reforms retroactive so people who were sentenced under the much harsher crack cocaine guidelines of the past may be able to petition the court to get a more fair and lighter sentence that people charged with crack cocaine charges today are eligible for. As we have discussed on this blog in the past, defendants charged with crack cocaine crimes were often exposed to much higher sentences under the federal guidelines than similarly situated defendants charged with powder cocaine crimes. The huge sentencing disparity was changed several years ago to make crack cocaine and powder cocaine crimes more similar, although there is still a fairly significant difference in the sentencing guidelines between the two types of cocaine crimes.

While the bill is still working its way through the process, it does seem to have fairly broad support from legislators who believe the current laws, particularly minimum mandatory sentences, are too harsh to others who appreciate the significant and wasteful taxpayer expenses that go along with imprisoning so many people in the United States, particularly for nonviolent drug offenses.

Police Could Not Stop Suspect For Drugs Based on Alleged Hand to Hand Transaction in Florida

Published on: February 5, 2014 | by Lasnetski Gihon Law

When the police approach someone and stop him/her to ask questions about a crime, it is typically considered a detention in Florida. The police are not allowed to detain someone for investigation without consent or specific evidence that the person is involved in criminal activity. It is very common for police to be patrolling what they call high crime or high drug areas and watch what they believe to be drug transactions. The most common suspected drug transaction that results in a detention is the hand to hand transaction. However, when a police officer observes a suspected hand to hand transaction, that does not necessarily give the police the right to stop the people involved.

In a recent crack cocaine case south of Jacksonville, Florida, the police were watching an apartment complex that they said was in an area known for street level drug activity. The police observed the defendant walk up to another person receive some amount of cash and then give something to the other person. The police assumed this was a drug sale. The police then stopped the defendant and found money and crack cocaine.

The criminal defense lawyer filed a motion to suppress the evidence of the money and crack cocaine because the police did not have a legal basis to stop the defendant and search him. The police can stop and investigate a person they reasonably believe is committing a crime. In the context of a street level drug sale, the police would need to show more than a hand to hand transaction. The police would need to establish how often drugs are sold in the area, more specifics about the particular transaction and/or possibly something about the individuals involved in the transaction. In this case, the police said it was a high crime area, but apparently the police had not made a drug arrest in the area in more than a month. The police also knew nothing about the two people involved in the transaction (i.e. did one or both of them have a criminal background).

Marijuana Case Gets Thrown Out After State Loses Important GPS Evidence

Published on: February 2, 2014 | by Lasnetski Gihon Law

In a possession of marijuana with intent to distribute case west of Jacksonville, Florida, the police suspected that the defendant was selling drugs. During their investigation, they placed a GPS device on his vehicle without obtaining a search warrant. Later, the police learned that a package containing marijuana was being shipped to a warehouse. They used the GPS device to track the defendant to the warehouse where he was arrested with the marijuana.

During the discovery phase of the case, the criminal defense lawyer requested all of the records related to the GPS device from the state. The criminal defense attorney believed that some of the GPS evidence would be helpful in their defense. However, the state indicated that they lost the GPS information that might be helpful to the defendant (while retaining the GPS information that was helpful to the state). The state said the GPS information sought by the criminal defense lawyer was accidentally deleted when they were updating the software. The state also said there was no backup source and no central database storage.

The criminal defense lawyer filed a motion to dismiss the marijuana charges claiming the defendant’s due process rights were violated by the state’s loss of possibly exculpatory evidence. A criminal case can be dismissed if potentially critical evidence is lost or destroyed by the state. The defendant has to show that the evidence could help show he is not guilty and also that he has no other way to get such evidence. The criminal defense attorney does not have to show that the state intentionally lost or destroyed the evidence or did so negligently. Because the GPS evidence had significant gaps in it at a critical time in the case, the court agreed that the lost evidence was sufficiently important. Additionally, because it involved GPS evidence that was deleted, there was no other way for the defendant to obtain similar evidence.