Attorney General Eric Holder wants to change the federal sentencing guidelines. More specifically, it appears as if he wants to do away with lengthy mandatory sentences relating to drug cases. In an announcement, Holder expressed his desire to do away with these draconian sentences in an effort reduce the nation's overcrowded prisons and use precious government dollars in better ways. For years, Miami criminal defense attorneys have complained mostly to each other that the mandatory sentences were unfair and too harsh. If Holder gets his way, the federal criminal justice system with respect to drug cases will undergo changes not seen since the war on drugs was declared in the 80's.
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The Supreme Court of the United States finally handed down an anxiously awaited opinion regarding canine searches and the 4th Amendment. Most criminal defense attorneys in Miami, Florida and across the country waited to see how the Supreme Court would decide the matter. In a 5 to 4 decision, the high court decided that police officers cannot bring drug sniffing canines onto a person's property to search for drugs without first obtaining a warrant and that a dog's alert on the front porch is not sufficient in and of itself to merit the issuance of a warrant. The appellant in the case was charged with operating a marijuana grow house or in more common parlance trafficking in marijuana. The appellant, Joelis Jardines, was arrested and charged with multiple offenses involving marijuana trafficking.
On December 5, 2006, Miami-Dade narcotics detectives with special training in detecting marijuana grow houses received an anonymous tip regarding a residence being used to grow marijuana. Relying solely on the anonymous tip, a canine officer was summoned to the scene. The detective stood on the porch when his canine alerted to the front door of the residence. The alert by the canine along with the anonymous tip was enough for the narcotics detectives to obtain a search warrant. After returning with the warrant, a search of the residence revealed 179 marijuana plants growing inside the house. The street value of the marijuana seized was approximated to be worth $700,000. As a result of the search, Jardines was charged with marijuana trafficking and grand theft of electricity from FPL. His criminal attorney entered a not guilty plea on his behalf and filed a motion to suppress the marijuana as it was obtained through an illegal search.
The trial judge heard testimony from the prosecution and the defense and granted the motion to suppress. The state attorney's office appealed the decision which was reversed by the 3rd District Court of Appeal. The Supreme Court of Florida reversed the decision of the lower appellate court. The Supreme Court of the United States agreed with the Florida Supreme Court and found the search to be in violation of the 4th amendment. A number of dog sniff cases have been heard over the past couple of years. Most of the cases have been upheld contrary to the latest ruling. For example, canine sniffs are constitutional when checking automobiles or to search luggage in the airport.
Justice Antonin Scalia opined that the Fourth Amendment protects citizens from the government looking into their homes and in addition the area surrounding a home which is often referred to as a curtilage.
"The police cannot, without a warrant based on probable cause, hang around on the lawn or in the side garden, trawling for evidence and perhaps peering into the windows of the home," Justice Antonin Scalia said for the majority. "And the officers here had all four of their feet and all four of their companion's, planted firmly on that curtilage -- the front porch is the classic example of an area intimately associated with the life of the home."
Drug Dog's Sniff is an Unconstitutional Search, Rules U.S. Supreme Court, Huffington Post, March 26, 2013.
The Supreme Court of the United States will hear two drug cases next week specifically related to drug-sniffing dogs. While this is not the first time the Supreme Court will hear a case relating to canine related searches, the justices will decide whether two drug trafficking arrests were legal based on canine searches. The Florida Supreme Court ruled that the searches and subsequent arrests and seizures were unconstitutional. One of the cases being heard comes out of Miami, Florida, while the other case comes out of the panhandle of Florida. The Miami criminal attorney representing the defendant in the first case filed a motion to suppress the dog sniff. The Florida Supreme Court found that the alert was insufficient to establish probable cause to get a warrant. The case arose back in December 5, 2006, when Franky, a chocolate Labrador retriever, was brought to a Miami-Dade residence based on an anonymous tip. Franky sniffed at the front door and alerted to the residence. The police obtained a search warrant based on the alert. Upon executing the warrant, police found a fully functional marijuana grow house and the defendant, Joelis Jardines, was charged with trafficking in marijuana.
The second case arose out of Bristol, Florida. A police officer pulled over a pick-up truck with an expired tag. The defendant, Clayton Harris, acted nervous when approached by the officer. The officer brought his canine, Aldo, a German Shepard, to the vehicle. Aldo alerted next to the driver's front door. Based on the alert, the deputy searched the vehicle and discovered 200 pseudoephedrine pills which is used to manufacture methamphetamines. The criminal lawyer representing Harris also filed a motion to suppress and the search was later ruled unconstitutional by the Florida Supreme Court. In the Jardine's case, the Florida Supreme Court found that, "given the special status accorded a citizen's home under the Fourth Amendment, we conclude that a 'sniff test' is a substantial intrusion into the sanctity of the home and constitutes a search and the search must be preceded by an evidentiary showing of wrongdoing."
The Florida Supreme Court held in the Harris case that, "the prosecution could not prove Aldo's reliability in tracking pseudoephedrine", and set forth rigorous standards to determine if a drug sniffing dog's credentials were sufficient to establish probable cause in drug cases. The United States Supreme court has previously ruled on a couple of unrelated dog sniffing cases, however, the facts are not similar to the cases being heard next week. For example, the Supreme Court ruled in one case that a dog sniff was permissible because the defendant did not have a legitimate privacy claim. The high court has also ruled that a dog sniff is permissible during a traffic stop because traffic stop does not trigger a search under the Fourth Amendment.
The best chance for criminal attorneys and their clients is a Supreme Court case which held that the police use of a thermal imager outside of a home was a search under the fourth amendment and ruled to be unconstitutional. Most predict, however, that the Supreme Court will fall on the side of law enforcement and liken a dog sniff to that of an officer who is able to smell the strong odor of marijuana emanating from an automobile or a residence.
Drug-Sniffing Cases Send Supreme Court to the Dogs, Kansas City Star.com, October 26, 2012.
For all those charged under the "Florida Comprehensive Drug Abuse Prevention and Control Act" who anxiously awaited for the Supreme Court of Florida to rule on the constitutionality of Florida's drug laws finally have their answer. Criminal lawyers in Miami, Florida have expressed their disappointment in the ruling. In a 5 to 2 decision, the Supreme Court ruled that the prosecution need not prove that a particular defendant had knowledge about the "illicit nature" of the narcotics found in their actual or constructive possession. Criminal attorneys, as well as defendants charged with drug offenses have been waiting for the opinion in which if the law would have been unconstitutional would have led to the dismissal of thousands of cases with thousands of closed cases being vacated and then dismissed.
One of the Supreme Court Justices opined, "Nor is their a protected right to be ignorant of the nature of the property in one's possession." The majority opinion also reflected that is highly unusual for an innocent person to be unaware that he or she is carrying an illegal substance. The law regarding illegal drugs was changed in 2002 when the legislation no longer required prosecutors to prove that a defendant had "knowledge" of the illegal nature of the drugs. Bear in mind that just because knowledge is not a required element to prove a drug offense, a lack of knowledge could be presented to the prosecution prior to jury in effort to favorably resolve a case. Furthermore, the defense of a lack of knowledge could be presented to a jury, which if believed by the trier of fact would lead to an acquittal in the case.
The constitutionality of Florida's drug laws became an issue when a Middle District of Florida judge wrote in an opinion that the laws were unconstitutional and "Draconian". Once that opinion came down, defense attorneys filed thousands of motion to dismiss and motions to vacate cases where defendants had already been convicted and sentenced. Only two judges in the State of Florida ruled the laws unconstitutional and granted motions to dismiss and motions to vacate. A Miami-Dade County judge dismissed 39 felony cases. A Manatee County judge dismissed 46 criminal cases, one of which was sent to the Supreme Court that led to the ruling. All of the cases have been re-filed and will be prosecuted accordingly.
One of justices found that the potential sentences one faces under the Florida drug trafficking laws are staggering, but ultimately held that the law did not violate the constitution. One of the dissenting justices pointed out several examples of how an innocent person could be ensnared in the justice system. Two of the examples are individuals who rent automobiles being arrested for drugs left behind by the prior renter or individuals in airports who mistakenly pick up the wrong bag later found to be carrying illegal substances. The president of Florida Association of Criminal Defense Lawyers (FACDL) Miami branch expressed his displeasure with the ruling. None the less, the Supreme Court has ruled against defendants charged and/or convicted with drug crimes. With that being said, criminal defense lawyers will have to continue defend their clients charged with drug possession, drug sales and drug trafficking the old fashioned way, hard work and preparation.
State's Drug Law Constitutional, Florida Supreme Court Rules, Miami Herald.com July 12, 2012.
Puerto Rico's International Airport was once again the scene for a large-scale drug trafficking bust. Thirty-three people were arrested for their alleged involvement in a multi-million dollar drug smuggling and importation ring. Three other individuals were arrested at Miami International Airport and the Dallas-Fort Worth Airport. Investigators believe that the cocaine and heroine trafficking operations were a joint effort between two Puerto Rican drug trafficking organizations. The case will most likely be prosecuted in Puerto Rico or Miami, with criminal lawyers from either venue prosecuting and defending the case. The Puerto Rico airport has been a main hub for the importation and exportation of controlled substances for years.
According to the DEA, those arrested for heroine and cocaine trafficking are responsible for the importation of thousands of pounds of the illegal substances into Miami, Florida and Newark, New Jersey from 1999 to 2009. As a result of the investigation, 45 arrest warrants were issued by the federal government. Twelve of the warrants targeted former and current employees of American Airlines. Multiple warrants also involved multiple employees of Ground Motive Dependable, a company contracted by the airport to transfer, load and unload baggage. Other people sought via arrests warrants are an employee of Cape Air and a government employee working for the port authority.
The drug trafficking ring is alleged to have operated with airport or airline employees smuggling drugs into the airport in their bags or privately owned vehicles. Once the drugs passed through security, the illegal substances were transferred to other employees that would load the contraband onto aircraft bound for the United States. The current arrests for trafficking stem from an operation that began in 2009 that led to the arrests of several American Airlines employees. In 2010, several employees of Ground Motive Dependable were also arrested as part of the same investigation. The information that led to the new arrest warrants probably came from information provided by defendants arrested in the 2009 and 2010 operations.
According to federal authorities, Puerto Rico has been a hub for narcotics trafficking for a long time. With that, Puerto Rican law enforcement is seeking more federal funding to combat the problem. Approximately 70% of the narcotics that enter Puerto Rico are headed for the continental United States. According to records kept by the feds, the size of cocaine shipments intercepted in Puerto Rico and the U.S. Virgin Islands, have by increasing year over year. Last year, 10,800 pounds of cocaine was intercepted while 8,200 pounds have already been seized this year. Puerto Rico's police chief has asked for additional funding claiming that an increased budget should make it easier to catch drug traffickers.
DEA Makes Smuggling Arrests in Puerto Rico, Miami Herald.com, June 6, 2012.
Synthetic marijuana is on the radar screen for numerous cities and counties located in the South Florida area. Marijuana grow houses have become big business in Miami and across South Florida. Local police departments and federal agencies have spent the last four or so years attempting to shut down grow house operations. The legislature created new laws regarding grow houses and added a three-year minimum mandatory sentence to the mix. The large number of grow house cases have kept criminal lawyers in Miami-Dade County busy defending their clients, but a new crime for the possession or manufacture of synthetic marijuana may soon be promulgated by the Florida legislature.
Law enforcement has seen an increase in the popularity of synthetic marijuana. Since there are no laws prohibited the new substance, local municipalities have begun to pass local ordinances banning it. Sweetwater in Miami-Dade County has already passed such an ordinance with the City of Sunrise located in Broward County soon to follow. Other jurisdictions drafting ordinances include Miami-Dade County, Broward County and the cities if Coral Springs, Deerfield Beach, Hallandale Beach, Pembroke Pines, Miami Gardens and Pompano Beach. The synthetic marijuana comes in candy-like packaging and is sold in gas stations and convenience stores. The fake marijuana is commonly referred to on the street as "Spice" or "K2" has been deemed to have serious side effects such as a rapid heart rate, anxiety, nausea, seizures, hallucinations, renal failure and in some cases death.
Recently, a West Palm Beach warehouse being used to manufacture the synthetic marijuana exploded causing damage to the warehouse and nearby businesses. Very few manufacturing facilities have been discovered, but the local governments are aware that they exist. Sunrise has not uncovered any such facilities, but the police have been proactive in informing local businesses of the ban. Many stores have begun to pull the items from the shelves. Many complaints have been filed with parents claiming their children are hooked on the new drug. According to the complaints, the synthetic drug has caused serious automobile accidents and violent episodes. The high associated with the fake pot is alleged to be similar to that of crack cocaine.
Those who manufacture the substance have avoided state and federal prosecution by constantly changing the chemical make-up and by labeling the packaged product as herbal incense that is not to be used for oral consumption. Nine states have attempted to ban the substance by outlawing the chemicals. Florida law currently outlaws herbal incense, but only if the label reads for human consumption. Lawmakers around the country are becoming aware of the problem and may be soon to act. Poison control centers have received thousands of calls since 2010 regarding problems after people ingested the substance. If the problem continues, look for the Florida legislation to act to ban these substances. The situation is somewhat similar to the problems that arose when MDMA or "ecstacy" was introduced in the early 1990's.
Synthetic Marijuana: South Florida Cities and Counties Cracking Down on Fake Pot, WPTV.com, May 28, 2012.
While on routine patrol, a United States Coast Guard aircrew observed a sem-submersible craft commonly referred to as a "narco-sub". The aircrew radioed the information to two vessels which then attempted to intercept the sub. Prior to capturing the craft, the crew of four scuttled the vessel. Thirty of these types of vessels used for drug trafficking have been captured or sunk since 2006. Crews caught operating these vessels are typically prosecuted in federal court. Over the years South Florida and Miami criminal attorneys have represented those captured and indicted for cocaine trafficking and importation of cocaine.
This case was a little unusual as this narco-sub was discovered in the Caribbean where most of the previous craft have been captured or sunk in the Pacific. Southern Command which has been at the point in battling the importation of illegal substances from South America, claimed that the Honduran Navy played a large role in the detection of the sub. The vessel's interception was part of a larger joint operation called "Operation Martillo". The 2012 Central American Security Conference was held this week in El Salvador. The head of Southern Command, General Douglas Frazer spoke at the conference and applauded the operation and mentioned the need for closer regional ties which are necessary to disrupt the drug trafficking which originates in Central and South America. According to Frazer, 80% of the cocaine trafficking occurs via sea routes.
Cartels involved in transporting cocaine and marijuana have increasingly relied on semi-submersibles and submarines to move the illegal substances from South America to Central America and Mexico. The first craft was captured in 2006, but the federal government have been aware of their use since the mid-1990's. The vessels are manufactured out of lightweight fiberglass and are constructed in makeshift shipyards hidden in the jungle. The vessels are constructed to sit just above the waterline, making them difficult to spot by the human eye and even more difficult to detect using radar. Recently, the vessels have become so advanced that they can ride completely underwater for long periods of time. The first fully submersible vessel was captured carrying a haul from Ecuador.
According to the United States State Department, 60 vessels are consistently used to transport more than 300 metric tons of cocaine on an annual basis. That means that only a very small number of the vessels being used have been captured or sunk over the past 5 or 6 years. Despite the efforts of the United States and its allies in Latin America, drug trafficking in the Caribbean and the Pacific continue to be a real problem with no end in sight. Operation Martillo continues to attempt to interdict illegal drugs. Since its inception, 25 tons of cocaine has been seized and 50 people have been arrested. Ongoing cooperation between countries will attempt to prevent the transfer and importation of illegal substances, however, the cartels seem to continue to have the upper-hand in this cat and mouse game.
Coast Guard Seizes "Narco-Sub" in Caribbean, The Christian Science Monitor.com, April 23, 2012.
Another year in South Florida brought the annual Ultra Music Festival attended by thousands of local residents and tourists. In typical fashion, the music festival which is held in Miami, Florida was fun for all who attended except for the dozens of people arrested on a variety of charges. Anyone arrested at the festival should immediately contact a Miami criminal lawyer to defend the case. Seventy-one individuals were arrested over the weekend with 48 of those facing felony charges, mostly for drug possession. The majority of the arrests were for possession of an illegal substance. The most common illegal substance found at the concert was ecstacy or MDMA. While the concert is certainly not a hot bed for drug trafficking, many of those who attended the festival possessed MDMA. On its face, being arrested for possession of an illegal substance, such as ecstacy, seems like no big deal. While penalties of jail or prison time are remote, possession of ecstacy is a third degree felony under the laws of the State of Florida.
Tourists and residents alike, arrested for possession of ecstacy or possession of marijuana should not take their cases too lightly as entering a plea and receiving credit time served could have long term damaging affects on a person's personal and professional life. Everyone arrested should understand the process when involved in the criminal justice system. After someone is arrested, they are taken to the Dade County Jail. Upon booking into the jail, a bond will be set in the case. There are two ways to post bail. First, the cash amount of the bond can be paid resulting in the release of the person arrested. Once the case is closed, the money posted for the bond will be returned to the person who paid via a check from the clerk's office. If a person does not have the funds to post a cash bond, a bondsman can be hired. Florida residents will generally have to pay the bondsman 10% of the bond to secure a release. Out of state residents are typically charged the full amount of the bond, with 90% of the money being returned at the conclusion of the case.
After a person has posted bond or bail, he or she can return to the state where they reside. An arraignment will occur 30 days after the arrest. Prior to the arraignment, the state attorney's office will subpoena the witnesses listed on the arrest affidavit and conduct a pre-file conference. If the prosecution believes the case can be proved beyond a reasonable doubt and there are no search and seizure issues, the charges will likely be filed. At the arraignment, if a defendant has no prior criminal record, the prosecution will offer the drug court program or a withhold and credit time served. There are serious problems with both resolutions. The drug court program is highly intensive and takes 9 months to a year to complete. A person must attend narcotics anonymous meetings three times a week and engage in some form of outpatient drug treatment. While the successful completion of the program will result in a nolle pros or dismissal, it is a long hard road to get that result. A time served plea is much easier and the case will resolve right away. However, a defendant who takes that plea will have a criminal record. The case can be sealed, but certain government agencies will have access to the criminal record.
A skilled defense attorney will not subject his or her client to the drug court program or allow the client to enter a plea. Lawyers familiar with the system can usually work out a compromise with the prosecutor. For example, a charitable contribution or community service hours can be exchanged for a nolle pros or dismissal. The success of such a strategy usually lies with prosecutors in a particular criminal court division. A defense lawyer's relationship with prosecutors in the division goes along way in resolving a case favorably for the client. If the case cannot be resolved in that manner, depositions of the involved officers should be taken. After the depositions are taken, cases of this nature generally fall apart due to the number of arrests made over the Ultra Festival weekend.
Drug Arrest at Ultra Music Festival, Miami Herald.com, March 28, 2012.
Efforts to curtail drug trafficking in Central American may inadvertently re-open former drug routes throughout the Caribbean. If the Caribbean becomes utilized for its drug routes as it has in the past, Miami may once again become the hub for drug importation into the United States. As the federal government's "war on drugs" concentrates in shutting down drug routes in the Central American corridors, Puerto Rico and other Caribbean islands could become main routes in the drug trafficking business. Miami criminal lawyers have always seen a steady stream of cases since the 1980's, however, federal authorities expect an increase in the number of cases as old trafficking routes are re-opened.
Congress, as well as, the United Nation's Narcotics Control Board is concerned that the increased pressure on Central American drug routes will cause the less protected Caribbean to once again become the primary trade route for illegal narcotics such as cocaine and heroin. Drug related violence in Puerto Rico has already began to sky-rocket with the number of murder cases rising to 1,136 last year. It is believed that 70% of those murder cases are drug related. Puerto Rico has enlisted the national guard to quell the violence. New equipment and security measures are being implemented in San Juan that will allow for the inspection of all of the cargo passing through the port. Concern is mounting that the re-routing of drugs will cause Miami to re-live the 1980's where the "Cocaine Cowboys became infamous. The 1980's were a time a violence and chaos as cocaine trafficking was taken to new highs. During these times, Miami and South Florida was considered to be the most dangerous locales in the United States.
Many fear that an increase in the flow of drugs through the Caribbean will directly impact Miami. Over the past couple of years, the Florida legislature has contemplated reducing the Draconian minimum mandatory penalties in an effort to reduce the costs of housing prisoners receiving double digit prison sentences for drug trafficking. The rationale of doing away with the minimum mandatory sentences was based on prison overcrowding, budget cuts and the burden being put on the taxpayers responsible for paying the high cost of housing inmates for extended periods of time. While the costs incurred by housing inmates for extended periods of time are a concern, the possibility of increased drug trafficking and violent crimes in Miami and South Florida make it highly unlikely that the legislature will repeal the long prison sentences that can be handed down for those arrested and convicted of drug trafficking.
As a result if the large scale drug importation business that riddled South Florida, the legislature passed sentencing laws that would take those convicted of drug trafficking off the streets for many years. For example, anyone convicted of cocaine trafficking in excess of 400 grams faces a 15 year minimum mandatory sentence. Heroin trafficking in excess of 28 grams carries a 25 year minimum mandatory sentence. The federal sentencing guidelines are every bit as oppressive when dealing with federal drug trafficking cases. Another negative impact caused by an increase in drug trafficking cases could be reflected in more stringent policies being put in place when dealing with bonds, both in state and federal court. Bond reductions may be less prevalent and prosecutors may look at Nebbia satisfaction requirements with a more discerning eye. All defendants charged with drug trafficking must prove to the prosecuting authority where the proceeds used to post bail originated, for both the collateral and the premium. With the downturn in the housing market, it is increasingly difficult to prove to the prosecution that houses have the required collateral to satisfy the bond requirements. If the future is as some predict, the criminal court system in South Florida could once again be indirectly overwhelmed by drug cartels.
Cocaine Cowboys, Not Again?, Miami Herald.com, March 19, 2012.
Oxycodone trafficking became such a problem in South Florida that new legislature and law enforcement action became a primary mission. Recent statistics show that the number of oxycodone dispensed by doctors was drastically reduced in 2011. Multiple high-profile arrests and stricter state laws are supposedly responsible. Miami criminal attorneys have seen the number of arrests and prosecutions for trafficking oxycodone significantly increase over the past couple of years. According to the United States Drug Enforcement Agency, oxycodone sales by doctors decreased by 97%. In 2010, doctors were responsible for the distribution of 46 million oxycodone pills, but only distributed 1.1 million pills in 2011.
Proponents of the new legislation passed last July would have you believe that the biggest reason for the drop in distribution are the new laws. The legislation prevents doctors from dispersing oxycodone pills directly from their offices. Several doctors were charged with accepting cash from out-of state patients. Federal authorities would have you believe that the recent arrests have reduced the distribution of illegal substances by putting pressure on pain clinics and clinic owners . Whatever the theory, something appears to be working. In 2010, 90 of the top prescribing doctors practiced medicine in Florida, while in 2011, the number dropped drastically to 13. Not surprisingly, sales from doctors in Kentucky, West Virginia and Tennessee have increased over the same period of time.
Another theory is that the significant penalties that attach to oxycodone trafficking charges have become common knowledge. The possible sentences for all drug trafficking charges are severe, but none more severe that of oxycodone. Florida drug trafficking laws do not require the intent to traffic or import illegal substances. Mere possession of an illegal substance of a weight deemed to be a trafficking amount is enough to be charged with the offense. When it comes to trafficking in oxycodone, an amount of between 4 and 14 grams, will subject an individual to a three year minimum mandatory sentence in state court. Possession of 14 to 28 grams or in excess of 28 gram subjects a defendant to a 15 and 25 year minimum mandatory sentence, respectively. The penalties are far more severe than in cocaine and marijuana trafficking cases. In addition, marijuana and cocaine trafficking cases require much greater weights to be charged with a trafficking offense.
While all three points can be attributed to the recent declines in the sale of oxycodone, the result is likely a combination of the three. While the DEA and the legislature think they have solved the problem, it may only be a temporary fix. Several years of data will be required to determine if the problem is under control. For all those who distribute oxycodone, be aware that just because oxycodone is legal prescription drug, that does not give everyone the right to dispense it or merely possess it. Anyone carrying oxycodone is required to have a prescription. Any one arrested for possession of an illegal substance or trafficking in an illegal substance, whether it is oxycodone or other form of pain killer, should seek advice from a qualified defense lawyers with experience in defending these cases both in state and federal court. The consequences of a poor defense could be devastating.
Sales of Oxycodone by Doctors Fall in Florida, Miami Herald.com, January 31, 2012.
Florida has asked the United States Supreme Court to decide whether police officers can legally use a trained narcotics dog to sniff a front door of a residence without probable cause to believe that a crime has been committed inside the residence. Miami narcotics detectives received an anonymous tip that a particular residence was being used as a marijuana "grow house". Despite a lengthy period of surveillance on the house, the detectives were unable to gather any evidence sufficient enough to allow them to seek obtaining a search warrant. When the surveillance failed, the detectives approached the residence with a trained narcotics dog that alerted upon sniffing the front door. After the dog alerted, another detective approached the front door and then magically smelled the strong odor of marijuana emanating from the residence. The detectives drafted an affidavit in support of a search warrant which was then signed off on by a judge. The detectives returned to residence, busted down the door with the warrant in hand and discovered a large hydroponic marijuana grow house.
A Miami criminal lawyer filed a motion to suppress which was heard before a Miami-Dade County circuit court judge. Following the law issued by a federal appellate court, the trial court judge found that the dog's sniff was a search under the constitution and was improper without probable cause and a warrant. The federal court ruling in 2004 held that when searching a private home, "a firm line remains at the entrance, blocking the noses of dogs from the intimate details of an individual's life." The 3rd District Court of Appeal disagreed with the trial court, reversing the ruling by holding that a dog sniff does not equal a search and therefore a warrant is not required to put a dog up on the porch to sniff around the door of the residence. The Court of Appeal relied on another federal case which found that a dog sniff of contraband is not a search as no privacy interest exists in illegal contraband.
The Florida Supreme Court reversed the decision of the 3rd DCA and noted that a person's home is afforded a special status and that a dog sniff at the front door was an unreasonable intrusion into the sanctity of a home. The Court went further to say that a dog sniff is "a substantial intrusion" and constitutes a search within the 4th Amendment to the Constitution of the United States. Despite the ruling, the opinions of the justices were not unanimous with two of the judges dissenting. The state has taken the appeal up to the Supreme Court on the basis that the ruling in Florida is in direct contravention of the case it relied up at the 3rd District Court of Appeal. The state also noted in the appeal that the Florida Supreme Court's decision will hamper drug enforcement across the state if probable cause is needed before deploying a drug dog.
At this point, it is not clear whether the Supreme Court will hear the matter. Miami criminal defense lawyers would clearly be elated if the Court refuses to hear the issue in that drug sniffing dogs could only be used if probable cause for the sniff exists. In the event the Supreme Court believes that Florida is handing down rulings in direct contravention of the earlier laws, they will probably step in and intercede, finding that Florida has erred and overstepped its bounds. In either event, the law as it stands enures to the benefit of home owners. Anyone arrested for illegal contraband in the home, especially narcotics, that were discovered as the result of a sniff, should files a motion to suppress in their case.
Front Door Sniff By A drug Dog Require Probable Cause, Sunshine Slate.com, November 21, 2011.
The Broward County Sheriff's Office with the assistance of federal, state and local authorities conducts a large scale crackdowns every few months in an effort to get drugs and guns off the street. The latest operation dubbed "Operation Cold Turkey" netted 280 arrests over a two day period. One of the big scores came when the investigation led to a marijuana grow house which contained large amounts of cannabis, guns and other illegal drugs. Other items seized during the operation included 2,000 oxycodone pills and illegal firearms. In a separate incident, a former Miami Dolphin player was among those arrested. He was charged with one count of possession of marijuana, less than twenty grams. Igor Olshansky was taken to the Broward County Jail where he was released on a $100.00 bond. It is not clear whether, the former defensive tackle will hire a Broward or Miami criminal lawyer to defend the charge.
Possession of marijuana is a first degree misdemeanor punishable up to 364 days in the county jail. While the potential punishment seems harsh, people arrested having a small amount of marijuana never go to jail. In fact, many of the cases are dismissed in Miami-Dade County because the officers fail to appear in court; and if they appear, usually forget to bring the marijuana with them to court. Either event will result in the dismissal of the charges. Prosecutors will offer first time offenders a pretrial diversion program which will result in a nolle pros or dismissal of the charges if a defendant completes a couple hours of drug classes and pays the enrollment fee. People who have prior criminal records will most likely not be eligible for the program and will be offered time served and court costs. If a person is not eligible for the program, experienced defense attorneys will set the case for trial as the plea offer will always be the same.
Marijuana possession charges can come in many forms depending on the amount involved in the case. Possession of less than 20 grams is a misdemeanor as previously discussed. Possession in excess of twenty grams of marijuana is a third degree felony punishable up to 5 years in prison. Sentences of this kind are very rare and usually require a defendant to have an extensive criminal record and would also require a conviction after a jury trial. The most serious of the marijuana cases is trafficking. To be charged with trafficking in marijuana, a defendant must be in actual or constructive possession in excess of 25 pounds. There are different levels of trafficking depending on the weight of the illegal substance. Cases involving between 25 and 2,000 pounds of marijuana carry a 3 year minimum mandatory sentence; between 2,000 and 10,000 pounds a 7 year minimum mandatory sentence; and in excess of 10,000 pounds a 15 year minimum mandatory sentence apples.
The majority of marijuana trafficking cases that come out of Miami-Dade and Broward County stem from "grow house" operations. Despite the harsh potential sentences a defendant faces if caught running a grow house, several defenses exist to fight these cases. More likely than not, narcotics detectives gained access to the residence containing the marijuana without the use of a warrant and generally rely on obtaining consent from the residents. Often times, the detectives threaten to arrest everyone present, unless consent is granted. If this issue arises, a motion to suppress the search should be filed as the consent was not truly voluntary. If the detectives obtain a search warrant, grow house cases are more difficult to defend unless counsel can convince a judge at a motion to suppress that the facts that established probable cause in the warrant were illegally obtained or untrue.
Former Dolphin Igor Olshansky Arrested on Marijuana Charge, Sun Herald.com, December 2, 2011.
After months of legal arguments and thousands of motions to dismiss being filed by defense counsel, the question as to the constitutionality of the state's drug laws will finally come to a head. According to court records, thousands of defendant's convicted of or charged with drug offenses could be exonerated across the State. Every Miami criminal lawyer is anxiously waiting for word to come down from the State of Florida's highest court. While only two judges across the state have granted motions on cases involving drug crimes, some the appellate courts have ruled on the reading of the law while others have sent the cases to the Supreme Court as a matter of great public importance.
On September 14, 2011, a Manatee County Circuit Court Judge dismissed charges against 42 defendants involved in 46 cases. Manatee County falls within the Second District Court of Appeal. Two weeks after the Manatee County ruling, a three judge panel sitting on the court of appeal sent the matter to the Florida Supreme Court for a decision. Around the same time, another Miami-Dade County Circuit Judge dismissed numerous drug cases. That judge was in fact the first to find the drug laws unconstitutional. He agreed with a ruling handed down by federal judge who found Florida's drug law unconstitutional. The federal judge sided with a defendant charged will selling, manufacturing or delivering crack cocaine. The judge was quoted as saying, "Other states have rejected such a draconian and unreasonable construction of the law." The Third District Court of Appeal has jurisdiction over Miami-Dade County and ruled against the Miami judge.
From the prosecution's standpoint, the law is still valid because a defendant can present evidence that they did not know of the presence of the illegal substance or have guilty knowledge of the illegal substance. Defense attorneys contend that the law is unconstitutional because it shifts the burden of proof to the defendant. Under the Constitution of the United States, the government has the sole burden or proving criminal charges. We should not criminalize innocent conduct and shift the burden of proof. While it is not clear what the First, Fourth or Fifth District Court of Appeal have ruled, the Supreme Court is set to hear oral argument on December 6, 2011.
While the drug laws appears unconstitutional on their face, the Supreme Court will want to prevent the release or discharge of thousand of convicted or charged defendants under Florida's Anti-Drug laws. However, if for some reason, the Supreme Court strikes down the drug laws, motions to dismiss drug cases should be filed across the state. Don't lose hope. The Supreme Court has in the past ruled in favor of defendants involved in large numbers of criminal cases. For example, the highest court has previously found state sentencing laws unconstitutional and has ordered the local courts to re-sentence thousand of defendants. Whatever the case may be, the Supreme Court seems poised to hand down the answer before the end of the year.
Drug Law Case on Fast Track in Florida Supreme Court, Miami Herald.com, November 21, 2011.
A doctor, previously convicted of Medicare fraud back in 1992, has again been arrested for Medicare fraud and drug traffcking. Twenty-three others were also listed in the indictment. The indictment alleges that the group sold prescription medications, mostly pain killers and billed the federal healthcare program millions for prescriptions that never existed. Miami criminal lawyers, either assistant federal public defenders or privately retained counsel, will represent the defendants. Frank Ballesteros, a Miami doctor, is accused of playing a major role in a large scale pill mill operation. The majority of the defendants received a bond in the case, however, the doctor was denied a bond. His lawyer represented him at a pre-trial detention hearing, but was denied bond as the magistrate found him to be a flight risk and a danger to the community.
The Constitution provides everyone the right to a bond. However, like in state court, there are exceptions in federal court. In the majority of the cases, the assistant U.S. attorney prosecuting the case will agree to a bond and set an amount depending on the severity of the charges and a defendant's ties to the community. On other occasions, the prosecutor will not agree to a bond. The remedy at that point is to request a pre-trial detention hearing. A magistrate presides over these types of hearings and can either grant a bond and set an amount, or can deny a defendant a bond. The prosecutor will generally proffer the facts of the case with the lead agent assisting in the hearing. The defense lawyer will be permitted to cross examine the lead agent. After testimony is taken, both counsel will argue to the magistrate why a bond is or is not appropriate in the case. The magistrate will then consider a defendant's ties to the community and whether or not the defendant is a danger to the community. If the magistrate finds either, the magistrate will not set a bond and order the defendant detained.
The Drug Enforcement Agency has been cracking down on clinics in South Florida that are illegally distributing oxycodone and other pain killers and arresting those involved with drug trafficking. The clinics are also wrongfully billing Medicare which leads to Medicare fraud arrests. The DEA claims that there are large groups of doctors, clinic owners and pharmacists that are working in concert in these illegal ventures. If caught working together, the defendants will also be charged with conspiracy to traffic in illegal substances and conspiracy to commit Medicare fraud. The special agent in charge was quoted as saying, "Drug trafficking and healthcare fraud are a vile combination, especially when offenders steal from taxpayers to pay for highly addictive, highly profitable street drugs."
The DEA busted five clinics located in Miami, Hialeah, and Plantation. Ballesteros is accused of writing all the phony prescriptions for these clinics. Anyone being investigated or arrested for being involved in a fraudulent clinic or pill mill should retain a defense lawyer experienced in defending these types of cases in federal court. Individuals charged with drug trafficking and Medicare fraud are potentially looking at long prison sentences and should be represented by qualified counsel as the consequences are so dire.
Miami Doctor Charged with Medicare Fraud, Convicted of Same Offense in 1992, Miami Herald.com, October 30, 2011.
While a Miami circuit court judge first ruled that the Florida drug laws unconstitutional, a second judge from Manatee County has followed suit and dismissed felony drug charges levied against 42 defendants. Miami criminal lawyers and defense attorneys across the state have been filing motions to dismiss on behalf of their clients charged with drug offenses. Although hundreds of the motions have been filed, very few have been granted. Many circuit judges have motions pending in their courts, but have declined to rule on them at this point. While numerous circuit court judges have handed down rulings, the final decision as to the constitutionality of the state will be determined by the Florida District Courts of Appeal and will ultimately be determined by the Florida Supreme Court as a matter of great public importance.
The turmoil regarding the Florida drug laws was initially caused by a Middle District of Florida judge. The Middle District is a federal court, which begs the question, why are some state court judges following the precedent set forth by a court with no jurisdiction. Typically, federal courts have no jurisdiction of over state court judges, but rulings can be used as guidance by state court judges regarding their cases. The federal court judge decided back on July 27, 2001, that the Florida drug laws violated the Due Process Clause of the United States Constitution. The basis for the ruling was that the Florida Statutes regarding drug offenses do not have a knowledge requirement. Generally, all crimes in Florida and across the United States require criminal intent. Florida is the only state where criminal intent is not a prerequisite to being charged with certain drug offenses.
The problem with the current state of the drug laws is that an individual can be charged and convicted of a drug offense despite the fact that the prosecution cannot prove that the defendant had the intent to possess or sell an illegal substance. The Florida Statutes specifically do not require that the prosecution prove knowledge that the presence of the illegal substance. Without the element of intent, a person can be charged even if he or she innocently, accidently, unintentionally or mistakenly possessed an illegal substance. The burden is placed on the defendant that he or she did not have knowledge of the presence of the substance. Shifting the burden to the defense goes against the general principles of the constitution which squarely places the burden of proof on the prosecution to prove its case.
The penalties for violating Florida's drug laws are very serious. Simple drug possession such as cocaine or ecstasy possession are third degree felonies punishable up to 5 years in prison. Sale or possession with intent to sell an illegal substance is a second degree felony punishable up to 15 years in prison. Drug trafficking is a first degree felony punishable up to 30 years in prison and can be a life felony if a firearm was used in the commission of the offense. There are other serious ramifications for being convicted of a drug offense such as a permanent criminal record or even a driver's license suspension. Only until the appellate courts rule on this issue will we know whether or not the laws will be upheld. As a side note, over 100,000 individuals have been convicted of what could be determined to be an unconstitutional law.
Tampa Bay Alleged Drug Offenders Challenging Florida Drug Sentences After Federal Judge Ruling, PRWeb.com, October 18, 2011.