West Palm Beach Criminal Lawyer Blog : Ronald Chapman: West Palm Beach Criminal Lawyer | Florida Criminal Attorney: DUI, Assault & Battery, Felonies | Criminal Law Firm

           In the case Mackle Vincent Shelton versus the Secretary of the Florida Department of Corrections, United States District Judge Mary Scriven ruled that one of Florida's drug laws is unconstitutional because:

          1.  It does not require prosecutors to prove that someone accused of violating that law knew that the controlled substance he had in his possession was illegal; and

          2.  It is a strict-liability crime which does not meet the constitutional requirements necessary for such a crime.

          Regarding point number 1, it is generally the case in the United States that someone cannot be convicted of a crime unless he knows that what he was doing was illegal when he did it.  However, in 2002 the Florida Legislature passed a law which eliminated the requirement that someone charged with possessing an illegal controlled substance know that the substance in his possession is illegal.  Thus, if a college student in Florida were, for example, to put some cocaine into another student's book bag, that other student could be convicted of possessing cocaine even though he did not know that it was cocaine that had been put into his bag.

          Regarding point number 2, a strict-liability crime is one for which someone can be convicted even though she is ignorant of the fact that what she is doing is illegal when she is doing it.  But in order for a strict-liability crime to be constitutional, it must meet each of the following three requirements:

          a.  The penalty imposed must be slight;

          b.  A conviction does not result in substantial social stigma; and

          c.  Such a law must regulate inherently dangerous conduct.

          Regarding point "a," the penalty for violating Florida's drug law is not slight.  For example, someone convicted of delivering a controlled substance could be sentenced to up to 15 years in prison.

          Regarding point "b," Judge Scriven stated that "[t]he label of 'convicted felon' combined with a proclamation that the defendant is so vile that he must be separated from society for fifteen to thirty years, creates irreparable damage to the defendant's reputation and standing in the community.  This social stigma precludes, for example, the ability of a convicted felon to reside in any neighborhood of his choosing or to obtain certain employment."

          Regarding point "c," Judge Scriven observed that "there is a long tradition throughout human existence of lawful delivery and transfer of containers that might contain substances under innumerable facts and circumstances:  carrying luggage on and off of public transportation; carrying bags in and out of stores and buildings; carrying book bags and purses in schools and places of business and work; transporting boxes via commercial transportation . . . .  Under Florida's statute, that conduct is rendered immediately criminal if it turns out that the substance is a controlled substance, without regard to the deliverer's knowledge or intent."

          Based upon the ruling in the Shelton case, criminal-defense lawyers throughout Florida are already filing motions asking judges to declare Florida's drug laws unconstitutional.

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           In the case of Corey Bennett versus the State of Florida, Mr. Bennett was convicted of the crimes of trafficking in cocaine, possession of marijuana, and possession of drug paraphernalia based upon the following set of facts:

          "Bennett was wanted on felony charges, although no arrest warrant had been issued. A Tampa police officer received a tip that Bennett could be found at a certain residential address. The tipster reported that Bennett was outside the front of the residence, possibly participating in a drug deal.

          At the given address there was a main house in the front and a second dwelling, a cottage of sorts, in the rear. Bennett's grandmother and some other family members lived in the main residence. The [prosecutor] presented no evidence to show who lived in the rear building, which was a small, one-bedroom dwelling with a living room, kitchen, and bath.

          As the officer made his way to the location, the tipster reported that Bennett had run to the rear building. When the officer arrived, he proceeded to the cottage and knocked on the door. Receiving no response, he then walked around the structure and observed a broken window. He looked through the window into the bedroom and spied Bennett peeking out from the adjoining bathroom. The officer announced his presence and his intention to arrest Bennett. Bennett refused the officer's order to come out, whereupon the officer climbed through the broken window and made the arrest.

          After waiving his [Miranda] rights, Bennett first told the officer that he did not live in the cottage and did not know who did. He claimed that he had found the door open and had run inside. After the officer mentioned the possibility of burglary or trespass charges, Bennett said that he stayed there sometimes. The officer asked for and received Bennett's permission to search the premises.

          The search revealed contraband in the living room and bedroom. On the lower shelf of an entertainment center in the living room, the officer found two slabs of crack cocaine, a baggie of marijuana, and a digital scale and razor blade with cocaine residue. In the bedroom, a second officer found an open cardboard box full of men's clothing. Also inside was a small plastic sandwich bag box, and it contained seven slabs of crack cocaine. A man's shirt was lying draped in or across the top of the cardboard box, and Bennett's driver's license was found in the shirt pocket. There was also a letter, addressed to Bennett, somewhere in the cardboard box."

           Bennett appealed his convictions, and Florida's Second District Court of Appeal reversed his convictions for the following reasons:

          1.  Bennett did not physically possess either the drugs or the drug paraphernalia.

          2.  Neither did Bennett constructively possess either the drugs or the drug paraphernalia.

          3.  In order to prove constructive possession, the prosecutor had to show that Bennett knew of the presence of those illegal items and that he had the ability to exercise "dominion and control" over them.

          4.  Although one could reasonably conclude that Bennett knew of the illegal items in the living room because they were in plain view, that fact alone does not support an inference that he had control over them unless he also had control over the premises themselves.  

          5.  But there was no evidence showing that Bennett had control over the premises.  At best, the evidence showed that he was simply a visitor.  Nor was there any evidence that Bennett made incriminating statements when he was arrested, there was no eyewitness testimony, and there was no scientific evidence such as fingerprints linking him to the drugs or the drug paraphernalia.

          6.  Although the location of Bennett's driver's license and the letter addressed to him might be consistent with his having knowledge of the drugs as well as dominion and control over them, it is equally consistent with the reasonable conclusion that "the drugs were in the possession and control of the owner or another occupant of the premises and that Bennett simply threw his belongings over or into the open cardboard box without knowing of the drugs inside."

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          In the case of McCoy versus the State of Florida, Cynthia McCoy was charged with committing the crime of trafficking in hydrocodone based upon her possession of a pill bottle that contained Lorcet tablets and that was labeled as belonging to her husband.  Her defense at trial was that she was holding the pills for her husband.

          The evidence presented at Ms. McCoy's trial showed that:

          "[T]he [arresting] officer testified the pill bottle contained two different colors of Lorcet tablets and the bottle, which apparently had been filled the day before for 60 pills, contained only 13 pills. In addition, the arresting officer testified he asked [Ms. McCoy] if she used the pills, and she responded she had used some of the pills in the past.

          To explain these relevant inconsistencies, [Ms. McCoy and her] husband testified at trial the husband took Lorcet pills daily for his back problems and collected the monthly Lorcet prescriptions together in one jar, which remained locked in a safe in their home. The husband explained he would take a small number of those pills and put them in a prescription bottle that his wife would carry for him during the day because his work clothing lacked pockets. In addition, [Ms. McCoy] testified she told the officer she had taken the pills in the past because she had previously been prescribed Lorcet by the same physician."

          In Florida, the "prescription defense" provides that "[i]t is unlawful for any person to be in actual . . . possession of a controlled substance unless such controlled substance was lawfully obtained from a practitioner or pursuant to a valid prescription or order of a practitioner while acting in the course of his or her professional practice . . . ."  This defense is typically used by those who have a valid prescription written directly on their behalf for the pills in their possession.  But in this case, Ms. McCoy did not have a valid prescription written directly on her behalf for the pills in her possession; her husband did.

          The appellate court deciding McCoy's case began its analysis by noting that the words "lawfully obtained" contained in the prescription defense authorize possession of a controlled substance only for those people who have a legally-recognized reason for such possession.  According to Florida law, pharmacies may lawfully dispense medications to a consumer or his agent.  There is also other Florida law which states that a pharmacist may dispense a controlled substance "when the pharmacist or pharmacist's agent has obtained satisfactory patient information from the patient or the patient's agent."

          In Ms. McCoy's case, her defense at trial was that she was holding her husband's pills on his behalf.  If she was in fact doing so, then she was his agent and that, in turn, authorized her possession of those pills.  In other words, her actions were legal.

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Last week, CBS News published the following article regarding a significant change in the law pertaining to the charge of marijuana possession in California:

"California Gov. Arnold Schwarzenegger on [September 30, 2010] signed into law a bill that reduces the charge for possession of up to an ounce of marijuana from a misdemeanor to a civil infraction.

Upon signing the bill, however, Schwarzenegger took the opportunity to reiterate his opposition to Proposition 19, the measure that would legalize the growth, possession and distribution of marijuana in California.

The new law does not change the penalties for possession. Currently, carrying up to an ounce of marijuana is punishable by a fine of up to $100; no jail time or probation can be ordered. One key difference, however, is that until now a defendant has been entitled to a jury trial and a defense attorney. By downgrading possession to an infraction, that will no longer be the case.

'In this time of drastic budget cuts, prosecutors, defense attorneys, law enforcement, and the courts cannot afford to expend limited resources prosecuting a crime that carries the same punishment as a traffic ticket,' Schwarzenegger wrote in a signing statement.

The new rules go into effect in California January 1, 2011.

Randy Thomasson, president of saveCalifornia.com, decried the new law, the Los Angeles Times reports.

'This virtual legalization of marijuana definitely sends the wrong message to teenagers and young adults,' Thomasson said. 'It invites youth to become addicted to mind-altering pot because there's not much hassle and no public stigma and no rehab if they're caught.'

On the other side of the debate, Dale Gieringer, director of California NORML, said the measure will save the state millions.

'Gov. Schwarzenegger deserves credit for sparing the state's taxpayers the cost of prosecuting minor pot offenders,' Gieringer said in a statement.  'Californians increasingly recognize that the war on marijuana is a waste of law enforcement resources.'

State officials have determined that legalizing and regulating marijuana could generate up to $1.4 billion in tax revenues for California, a figure proponents of Prop. 19 often tout as a reason to support the measure. The impact the specific ballot measure could have on state revenues is less clear, since it would allow municipalities to enact their own regulations, but the California Legislative Analyst's Office said in an analysis it could generate 'hundreds of millions' for the state.

Schwarzenegger said in his statement, however, that Prop. 19 'is a deeply flawed measure that, if passed, will adversely impact California's businesses without bringing in the tax revenues to the state promised by its proponents.'

A poll released by the Public Policy Institute of California on Wednesday showed Californians now support Prop. 19 overall 52 percent to 41 percent."

Undoubtedly the most important thing for those caught with one ounce or less of marijuana is that they no longer have to fear going to jail or being placed on probation.

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          The penalties are severe for drug trafficking in Florida.  For example, if a person is convicted in State Court of trafficking in 200 grams or more of cocaine but less than 400 grams, that person must be sentenced to a mandatory minimum term of imprisonment of 7 years and ordered to pay a fine of $100,000.  And if someone is convicted of trafficking in 400 grams or more of cocaine but less than 150 kilograms, that individual must be sentenced to a mandatory minimum term of imprisonment of 15 years and ordered to pay a fine of $250,000.

          One way of avoiding such mandatory penalties is through something called substantial assistance which has been defined as assistance "directed to the investigation and prosecution of criminal activities by persons other than the defendant."

          Florida statute section 893.135(4) provides that "[t]he state attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of this section and who provides substantial assistance in the identification, arrest, or conviction of any of that person's accomplices, accessories, coconspirators, or principals or of any other person engaged in trafficking in controlled substances. . . .  The judge hearing the motion may reduce or suspend the sentence if the judge finds that the defendant rendered such substantial assistance."

          All is well and good if an individual provides substantial assistance and in return receives a reduction in sentence. Some people, though, are unable to provide the prosecutor with such information.  Others are simply unwilling to do so.  In either case, substantial assistance is of no help to them.

          Sometimes, however, a defendant provides a prosecutor with information about the criminal activities of others but still does not receive a sentence reduction because the prosecutor or the judge does not believe that his assistance warrants it since the information turned out to be of little value.  It is particularly frustrating when that occurs because the accused individual has, as it were, stuck his neck out by providing information about others, yet he receives nothing in return.  It is for that reason that some defendants choose not to provide substantial assistance.

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          In order to prove someone guilty of the crime of trafficking in cocaine, a prosecutor must establish that the accused individual knowingly was in either actual possession or constructive possession of 28 grams or more of cocaine.  To prove constructive possession, the prosecutor has to show the following two things beyond a reasonable doubt:

1. The defendant knew of the presence of the cocaine; and
2. The defendant was able to exercise dominion and control over the cocaine.

          Proving these two things can sometimes be quite difficult, especially when the cocaine is located in a jointly-occupied automobile.  That was the situation in the case of Culver v. State of Florida.

          In that particular case, Ms. Culver was driving her car and had a passenger with her when the police stopped her.  After a drug-sniffing dog arrived and alerted to the presence of contraband inside Culver's vehicle, the car was searched, and a paper bag containing 33.45 grams of crack cocaine was found behind the passenger seat.  Culver was eventually charged with trafficking in cocaine.

          At her trial, Culver argued that the prosecutor had not established that she was in possession of the crack cocaine found in her vehicle due to the lack of evidence showing that she had knowledge of the presence of the cocaine or that she had dominion and control over it.  Nevertheless, Culver was convicted of trafficking in cocaine.

          On appeal, however, the court hearing her case reversed her conviction because the prosecutor failed to present any evidence linking Culver to the cocaine other than the fact that she was close to it while riding in her car.  The appellate court stated:

"Ms. Culver pointed out that her passenger could have put the brown paper bag behind the passenger seat after Ms. Culver had left the car.  Indeed, both the deputy who made the stop and the K-9 officer who was assigned to watch the passenger expressed concern about the passenger's continuing movements inside the vehicle after the stop.  We note that the [prosecutor] did not present any fingerprint evidence, admissions, eyewitness testimony, or other evidence tending to establish that Ms. Culver had dominion and control over the brown paper bag or the plastic baggie hidden inside it.  For example, the [prosecutor] did not present evidence showing that the law enforcement officers saw Ms. Culver in possession of the brown paper bag, that the brown paper bag was already behind the passenger seat when Ms. Culver left the vehicle, or that the brown paper bag was found inside or in close proximity to Ms. Culver's personal property."

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          During the last few years, I have represented several clients in both State and Federal Court who have been charged with growing marijuana plants in their homes.  Therefore, I was particularly interested to learn that on July 1, 2008 a new law went into effect in Florida called the Marijuana Grow House Eradication Act.  The following is a news article about that Act:

          TALLAHASSEE, Fla. -- Attorney General Bill McCollum announced Tuesday that the Marijuana Grow House Eradication Act has been signed into law, giving Florida’s prosecutors and law enforcement essential tools to combat for-profit growers of marijuana.

The New Law

          The new law, sponsored by Senator Steve Oelrich (R-Gainesville) and Representative Nick Thompson (R-Ft. Myers), passed as House Bill 173 during the 2008 Legislative Session and was signed into law by Governor Charlie Crist Tuesday. The bill was developed because of the increasing number of grow houses operating in the state and violent crime which tend to be associated with these operations.

          “Grow houses are not only furthering this dangerous drug trade within our state, they are bringing violent crime into our neighborhoods,” said Attorney General McCollum. “This new law will help protect our families and communities.”

          The new law makes it a second-degree felony to grow 25 or more plants, targeting for-profit growers who exploit Florida’s previous threshold of 300 plants. The law will also make it a third-degree felony to own a house for the purpose of cultivating, packaging and distributing marijuana and a first-degree felony to grow 25 or more plants in a home with children present.

          “Marijuana is the most commonly used illegal drug in America and we must take a stand against the for-profit growers who were previously exploiting higher thresholds,” said Sen. Oelrich. “By lowering the number of plants necessary for criminal charges, we’ve given Florida’s authorities valuable tools in the fight against these criminal operations.”

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According to Florida law, the term "drug paraphernalia" includes many different types of devices that can be used to consume or to make controlled substances such as cocaine, marijuana, and hashish.  This article contains a list of 19 such devices.

1.  Scales and balances used to weigh or measure controlled substances.

2.  Blenders, bowls, spoons, and mixing devices used to make controlled substances.

3.  Capsules, balloons, and envelopes that are used for packaging small amounts of controlled substances.

4.  Syringes and needles that are used to inject controlled substances into the human body.

Objects used or designed for use in ingesting or inhaling controlled substances into the human body including:

5.  Metal or wooden pipes.

6.  Water pipes.

7.  Smoking masks.

8.  Roach clips.

9.  Miniature cocaine spoons.

10.  Carburetor pipes.

11.  Electric pipes.

12.  Air-driven pipes.

13.  Bongs.

14.  A "cracker" which is a small metal or plastic device that contains a pin that may be used to expel nitrous oxide from a container.

15.  A "whip-it" which is a device that may be used to expel nitrous oxide.

16.  A tank.

17.  A hose or tube.

18.  A 2-liter-type soda bottle.

19.  Duct tape.

Given the fact that I drink quite a bit of soda from 2-liter soda bottles, number 18 on the list causes me a little concern.

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When the police search a car and find drugs such as marijuana or cocaine, the person located closest to the drugs is often arrested even though there were other people located in the automobile just before the car was searched.  In that situation, the person who was arrested may well have a good argument that he is not guilty of possessing the narcotics if the prosecutor is unable to prove that he was in "constructive possession" of the drugs.

In order to prove that someone is in constructive possession of narcotics, a prosecutor in Florida must show that the accused individual:

1.  Had dominion and control over the drugs;

2.  Knew of its presence;

3.  Had the ability to maintain control over the narcotics; and

4.  Had knowledge of its illicit nature.

When drugs are found in a car containing more than one person, a jury is not permitted to simply infer that the accused individual knew about the presence of the narcotics nor is it permitted to infer that he had the ability to maintain control over the drugs.  Instead, the prosecution is required to present independent evidence that the individual knew about the presence of the narcotics and that he had the ability to maintain control over them.  Such evidence might consist of statements made by the accused to the police or evidence that that individual's DNA or fingerprints were located on the drugs.  But unless such evidence is presented at trial, the accused individual should be found not guilty.

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I am sometimes contacted by individuals who have been charged with the crime of possessing less than 20 grams of marijuana.  In Florida, that crime is a misdemeanor.   Often these individuals ask me if they can resolve their case quickly by simply going to court and pleading guilty.  I explain to them that although they may do that, it is probably not a good idea since their driver's license will be suspended by the Florida Department of Highway Safety and Motor Vehicles for 2 years if they are convicted of that particular offense.

If the case cannot be won at trial or at the pretrial stage (by, for example, filing a motion to suppress evidence), then it is essential that a person facing such a charge not be convicted.  Instead, his or her lawyer should try to get the prosecutor or judge to withhold adjudication or else try to get his client accepted into a pretrial diversion program so that the charge will eventually be dropped by the prosecutor's office.

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Federal drug laws can sometimes lead to paradoxical results.  Consider the following story from the Drug Law Blog:

The United States Gets Tough on Methamphetamine By Locking Up All Its Cold Medicine, Forcing Tweakers To Import Speed From Mexico Instead and Messing Up the Formula For Nyquil. In March, President Bush signed the renewal of the Patriot Act, which included the Combat Methamphetamine Act. As a result of that piece of legislation, drugs like Sudafed that contain pseudoephedrine, which can be used to make methamphetamine, had to be put behind the counter of pharmacies. The result is that domestic meth production has indeed fallen, but much of the slack has been taken up by skyrocketing production of meth south of the border. Not only that: they changed the formula in Nyquil to take out the pseudoephedrine so they wouldn't have to put it behind the counter! As the blog The Consumerist noted: "Nyquil has ditched the decongestant pseudoephedrine in favor of phenylephrine and doxylamine succinate. Neither apparently works as effectively as the pseudoephedrine, either on a sick person's nose, or in the crusty coffee machine carafe of the apocryphal neighborhood meth cooker."

Florida drug offense lawyer Ronald Chapman has been representing people accused of committing drug crimes since 1990. You can read more about Mr. Chapman’s experience as a Florida drug offense attorney as well as review news articles about some of his cases.  Some of the types of cases and issues that Mr. Chapman has handled since 1990 include:

• Death Penalty Cases
• Assault and Battery Cases
• DUI Cases
• Drug Cases
• Sex Crimes Cases
• Sealing & Expunging Criminal Records
• Bond|Bail
• Mistaken Identification and Wrongful Conviction
• Police Interrogations
• Sentencing

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