CONTROLLED SUBSTANCES Recent Court Wins

Recent Court Wins

DRUGS, ALCOHOL and OTHER CONTROLLED SUBSTANCES

• POSSESSION OF ALCOHOL BY A MINOR 
• POSSESSION OF CONTROLLED SUBSTANCES

Tampa Attorney Gets State to Drop Both Charges of Possession of Cocaine and Possession of Drug Paraphernalia

State v. M;

Facts:

Defendant and two others were arrested in a motel room filled with cocaine and other drug paraphernalia. The Defendant was charged with Possession of Cocaine and Possession of Drug Paraphernalia.

Defense:

Our client's presence in the motel room rented by another person who was present is insufficient to prove possession. The State failed to make out a prima facie case of the client's possession of cocaine because the circumstantial evidence against him was not only subject to a reasonable hypothesis of of his guilt, but was also subject to an equally reasonable hypothesis of his innocence. Langdon v. State, 235 So.2d 321 (Fla. Dist. App. 1970). Where defendant did not have control or joint control of premises on which cocaine was discovered, but was mere visitor with no apparent authority to treat the drugs as his own. Arant v. State, 256 So.2d 515 (Fla. Dist. App. 1972).

Result:

The State Attorney's Office dropped all charges against the defendant. The two others arrested, represented by different counsel, remain charged. Possession Charge Against Tampa client Dismissed.

State v. S; Judge Dominguez

FACTS: Our client was arrested for possession of less than 20 grams of marijuana. The client was pulled over by a law enforcement officer who claimed that the client was in violation of Florida Statute for a loud exhaust system on the client's car. After pulling our client over, the officer claimed to smell the odor of marijuana coming from inside the car, and thereafter instituted a search of the vehicle. The officer then located a small bag that contained what was confirmed to be marijuana. After the client informed the officer that it was his, the officer placed the client under arrest for possession of less than twenty (20) grams of marijuana.

RESULT: Due to the illegal nature of the stop, along with some constructive possession issues, our firm was able to negotiate with the state to have the charge dismissed completely.

Tampa Attorney Gets Felony Possession of 2.1 Ounces of Marijuana Lowered to Misdemeanor 

State v. R; Judge Farnell

FACTS: Our client was charged with felony possession of more than 21 grams of marijuana. On the night of the incident, our client was out on his boat, about 9 miles offshore. Due to a bitter falling out, our client's previous business partner contacted a Marine Interdiction Agent ("MIA"), informing the agent that our client was out on the client's boat and was in fact a drug smuggler. The responding MIAs subsequently located our client in the ocean, approached the client with guns drawn, and demanded the client turn over the drugs they believed to be on the boat. Pursuant to these demands, the client turned over 2.1 ounces of marijuana that were on the boat. However, because they had been informed our client was a "drug smuggler," they were convinced that there was much more marijuana on the boat than our client was letting on. After tearing the boat apart, the MIAs realized that they were mistaken. The two ounces our client handed over was everything the client had.

The MIA then turned our client over to Florida Fish and Wild Life in order for our client to be charged for possessing the marijuana under Florida State Law, because the amount of marijuana seized from the boat did not meet the minimum requirement for federal prosecution. Our client was then charged pursuant to state law for felony possession of more than 21 grams of marijuana.

DEFENSE: Because our client was retrieved by the MIAs 9 miles off the coast of the State of Florida, there was going to be a jurisdictional issue. The State only has jurisdiction to a certain point in our oceans, at which point the jurisdiction becomes exclusively federal. Beyond that, what is known as the "contiguous zone," becomes International jurisdiction, where neither federal nor state government would have jurisdiction to charge our client for the offense charged.

RESULT: Discussion of the jurisdictional issue with the state caused the charge to be lowered to misdemeanor possession of marijuana.

Failure to Read Defendant's Miranda Rights Before Interrogation Leads to Dismissal of Possession Charge

State v. K; Judge Barber

FACTS: Our client was arrested for possession of less than twenty (20) grams of marijuana. On the date of the incident, the officers responded to an apartment complex to investigate a domestic disturbance. Upon their arrival, the officers made contact with our client and his girlfriend. Though our client did not live there, his girlfriend lived in the apartment located on the second floor of the two-story apartment complex. When the officers arrived, however, both the client and his girlfriend were at a friend's apartment located on the first floor of the complex. During the officers' encounter with our client and his girlfriend, the officers asked both for ID. The client was able to produce his ID immediately, however his girlfriend had to go up to her apartment in order to retrieve hers. One of the officers followed the girlfriend to the top of the stairs to wait as the girlfriend went inside her apartment to get her ID; our client was waiting downstairs. When our client's girlfriend reached the top of the stairs and opened the door to her apartment, the officer smelled what was believed to have been "burnt marijuana," and then witnessed the client's girlfriend attempting to hide some marijuana under the couch that was in plain view. Seeing this, the officer summoned our client up the stairs to his girlfriend's apartment in order to investigate. During this brief investigation/interrogation, our client told the officers that in fact all of the marijuana located inside the apartment was his. The police collected a total of 5 grams of marijuana from the residence. The client and his girlfriend were subsequently arrested at the scene for possession of less than 20 grams of marijuana.

DEFENSE: The type of interrogation performed by the officers in this instance was one which required Miranda warnings to first be read to our client. Because the officers questioned our client without this prior reading of his Miranda rights, the statement made to the officers in the apartment that the marijuana was all his would have been inadmissible against him at trial.

RESULT: Our firm was able to point out the inadequacy in the state's case on this basis, and therefore was able to negotiate to have the charge dismissed against our client.

Tampa Criminal Attorney Gets State to Drop Charges of Possession of Cocaine and Possession of Drug Parphernalia

FACTS: The client was arrested with two others in a motel room. The client was invited into the room, and when police arrived he agreed to be searched. The client was never found in actual possession of any drugs, but cocaine and paraphernalia were found nearby. In addition, the client did admit to police that he was smoking crack with the other two co-defendants before police arrived.

Defense: Defendant's presence in the motel room rented by another person who was present is insufficient to prove possession. The State failed to make out a prima facie case of the defendant's possession of cocaine because the circumstantial evidence against defendant was not only subject to hypothesis of defendant's guilt but was also subject to equally reasonable hypothesis of defendant's innocence. Langdon v. State, 235 So.2d 321 (Fla. Dist. App. 1970). Where defendant did not have control or joint control of premises on which cocaine was discovered, but was mere visitor with no apparent authority to treat the drugs as his own.  Arant v. State, 256 So.2d 515 (Fla. Dist. App. 1972).

Result: The State Attorney's Office dropped all charges against the defendant. The two others arrested, represented by different counsel, remain charged.

Police Find Marijuana in Tampa Defendant's Truck, yet charges are Dismissed

State v. D; Judge McNeil

FACTS: Our client was charged with possession of less than twenty (20) grams of marijuana. Prior to the arrest, police officers were called to respond to a disturbance call made by the client's ex-girlfriend from her home. She claimed that even though she repeatedly asked our client not to come over, he had driven to her house on a suspended license. It was further claimed that when he got to the house, he immediately started yelling at her and trying to force the front screen door open, which is why she decided to call the police. Upon arriving to the scene, the officers witnessed the client pacing in the front yard of the house, appearing to be both very angry and impaired. After conducting a pat-down of our client for safety measures, which the client agreed to, the officer decided to walk by the client's truck, shining a flashlight through his passenger-side window. While looking inside the truck, the officer observed a clear baggy containing a substance that was tested and found to be marijuana in plain view. The client was then placed under arrest for possession of less than 20 grams of marijuana, and transported to the jail.

DEFENSE: Florida law recognizes two types of possession in possession cases: actual, or constructive. Actual possession is that which is found to be on the individual's person, and literally in their possession. Constructive possession, however, requires more. To prove constructive possession, Florida law requires that the defendant (1) knows of the presence of the contraband, (2) knows of its illicit nature, and (3) had or shared dominion and control over it. Constructive possession was at issue in this case. The argument here was that, regardless of whether the client had knowledge of the illicit substance in his truck, there was nothing that could be shown to illustrate our client ever had the intent or power to exercise dominion or control over the substance, and therefore the case against him should be dismissed. The essential proof of possession required in Florida is some factor indicating that the client had the authority or the ability to exercise control over the contraband, which was absent here.

RESULT: Because no evidence of possession existed in order to bring the charges forward under Florida law, our firm was able to have the case dismissed.

12 Felony drug charges Dismissed in Tampa  

State v. S.; Judge: Gregory P. Holder

FACTS: The client was initially charged with 11 counts of Possession with intent to sell marijuana, 1 count of possession of controlled substance, 1 count of possession of marijuana, and 2 counts of possession of paraphernalia. He was pulled over on State Road 93 by the Florida Highway Patrol for speeding. After he was stopped the trooper allegedly smelled a strong odor of marijuana as he approached the client's vehicle. The trooper stood on the passenger side of our client's vehicel and asked him to roll down the window. The client was unable to roll the window down and the trooper decided to open the door himself. After he opened the vehicle he told the client he was going to conduct a search. He found 126 grams of marijuana packaged in numerous individual baggies, prescription pills, and $2,200.00 in cash.

DEFENSE: We immediately contacted the intake attorney at the Hillsborough County State Attorney's Office and discussed charges. This led to the dismissal of all but three charges. We approached the prosecution about 4th amedment issues surrounding the search of our client's vehicle and an agreement was reached.

RESULT: The client pled to one charge and received no conviction on his record.

If you would like to learn more about drug charges link to http://tampadefenseattorney.clarislaw.com/.

POSSESSION OF MARIJUANA AND PARAPHERNALIA

State v. P; Judge: Margaret Courtney

FACTS: A Hillsborough County Sheriff's Deputy was running a speed trap outside of an elementary school on Bearss and Haven Bend Road. Between 7:30 and 8:15 a.m., Monday through Friday, the area in front of the Elementary school is a school zone. The speed limit at any other time is 45 mph. The cars are notified of the school zone by a flashing light on a sign that states, "school zone when flashing".

The client was traveling through the area at 8:15 a.m. The officer clocked his vehicle at 40 mph and gave him a ticket for speeding. When the deputy pulled the client over he smelled an odor of marijuana emanating from the truck. He asked him whether he had marijuana in the vehicle, and the client showed him where the marijuana was located. The client was then charged with possession of marijuana.

DEFENSE: The defendant claimed the light was not flashing at 8:15 a.m. and that he was driving below the speed limit when the officer lasered his vehicle. In this case, if the light was not flashing, it meant that the defendant was not only innocent of speeding, but that he would also have a very good motion to suppress the unlawful stop of his vehicle. We conducted further investigation by actually videotaping the flashing light in the morning. We determined from the video that the light actually cut off at 8:12:45 a.m. We supplied a copy of the video to the state attorney, and conducted a deposition of the deputy.

The deputy admitted under oath that he was between the two lights when he lasered our client's vehicle. He claimed that although he could not see the light when he lasered the client's car, all the lights stopped flashing at the same time, and that time was 8:15 in the morning. He also implied that our client was actually pulled over a few minutes before 8:15, because he had actually written the citation before 8:15. The speeding citation indicated the stop took place at 8:15 a.m.

We then made a public records request to determine if the flashing lights had been maintained by the county before the stop of our client's vehicle. The sworn deposition of the county employee revealed that the light had been maintained 4 times during the year preceding the stop of the client's vehicle. Each time it was maintained because the internal time clock in the light was not working properly.

All this investigation ultimately led our office to file a Motion to Suppress the Stop of the defendant's vehicle. The State Attorney had to concede that the "flashing light" was not activated by an accurate internal time clock. This meant that the Court would be unable to rule with certainty as to when the client's vehicle was pulled over.

RESULT: The State Attorney stood silent on the Motion to Suppress and the criminal possession charge was dismissed.

State v. C;  Judge: Tom Barber

FACTS: The client was observed driving her vehicle without headlights. The officer followed her for a half mile waiting for her to activate her headlights before he decided to pull her over. After the stop the officer did background checks on everyone in the car, and found a warrant for one of the passengers in the backseat. He questioned the suspect about his warrant for violation of probation, and then asked our client if he could search the vehicle. She responded by asking, "Do I have to let you search?" The officer said, " the decision is yours".

The officer then asked the suspect and our client, "Are you afraid of dogs?" Our client responded by saying, "No, but why do you ask?" The officer then told the defendant that he was going to get a dog to come to the scene. Eventually, the client consented to a search of her vehicle. A bag of marijuana and a pipe were found in the client's car.

DEFENSE: Whenever law enforcement gains consent to search a home or vehicle it must be voluntary. The client in this case consented to the search of her vehicle only after she was threatened by the officer's claim that the "dogs were on the way". We set up depositions with the Tampa Police Officer to investigate the details of the conversation between he and our client. Further discussions with the State resulted in the dismissal of the charges.

RESULT: The State decided to dismiss the charge based on the circumstances surrounding the search of our client's vehicle. If we would have filed a motion to suppress, it would have been the State's burden to show the consent was voluntary.

DELIVERY OF DRUG PARAPHERNALIA

CASE #06-CF-00818; 06-CF-00817; 06-CF-00816; Judge Debra Behnke

FACTS: The defendant was arrested for selling pipes for the specific purpose of smoking crack cocaine.   It is legal to sell the pipes, but not for the purpose of smoking crack.  Florida Statute 893.147 was designed to punish any person who promotes their smoking pipes for the purpose of using controlled substances.   According to the statute, "It is ulawful for any person to deliver, possess with intent to deliver... drug paraphernalia, knowing or under circumstances where one should reasonably know, that it will be used to introduce a controlled substance into the human body".   The undercover law enforcement officer entered a convenient store where the defendant was working the cash register.   He approached the defendant and asked if he had any pipes to smoke crack for sale.  Supposedly, the defendant pulled out a box of pipes and sold them to the undercover officer.

DEFENSE:  The defendant is an immigrant that spoke very little english.   There was a serious question as to whether understood the officer.   Unfortunately, while the storeowner makes money from the sale of these items he assumes no risk of criminal charges. 

RESULT:  The charges were dismissed.

POSSESSION OF MARIJUANA

Case Number: 06-CM-025852; Judge James Dominguez;

FACTS: Many people feel that their case is indefensable because they have not retained a lawyer to review the facts.  As a consequence, they will plead guilty to criminal charges that could have been dismissed.  This case is a very good example of that situation.  When the client entered our office she wondered whether it would be worthwhile to hire a lawyer because in her own eyes she didn't really feel she had a defense.  Law enforcement claimed they saw the defendant enter a vehicle with some friends and begin to smoke.  Based on their observations they approached the vehicle, knocked on the door and ordered the defendant out of the vehicle.   After the defendant was removed from the vehicle the officers smelled an odor of marijuana.  They searched the vehicle and found drugs.

DEFENSE: The law enforcement officers were not justified when they ordered the Defendant out of her vehicle.  The police must atleast have a "reasonable suspicion" that you are engaged in criminal conduct before they can lawfully command you out of your vehicle or even command you to stop.

RESULT:  The charge was dismissed by the State Attorney after discussing the 4th Amendment issues surrounding the stop of the defendant. 

POSSESSION OF ALCOHOL BY A MINOR

CASE #06-CM-004241; Judge Joelle Ober

FACTS:  The defendant was arrested after she entered a bar.  She was standing when an officer approached her and grabbed a drink out of her hand.  Further investigation revealed that she was in possession of alcohol.

DEFENSE:  Citizens have a right to be free from unlawful search and seizure.  The law enforcement officer was not in a position to determine that the defendant’s drink had alcohol until he physically removed it from her hand.  There was no reason to suspect that the defendant was engaged in any criminal conduct.

RESULT:  The State Attorney dropped the charge.

POSSESSION OF CONTROLLED SUBSTANCES

CASE #06-CM-011327; Judge Margaret Courtney;

FACTS:  Police conducted a traffic stop on the defendant and arrested him for Driving While License Suspended.  The defendant’s vehicle was searched incident to arrest, and a bag of marijuana was found on the passenger seat of the vehicle. 

DEFENSE:  After investigation it was determined that the defendant’s license was not in fact suspended at the time of the stop.  In addition, the State was unable to produce any evidence of the marijuana due to the way it was collected by the police officer.

RESULT:  All the defendant’s charges were all dropped.

CASE #05-CM-026370; Judge Joelle Ober

FACTS:  The defendant was charged with possession of cannabis and possession of drug paraphernalia.  The defendant was visiting a friend who had recently been involved in a domestic dispute.  As the defendant was leaving her apartment the officer investigating the domestic dispute ordered the defendant to stop so he could ask him questions.  The defendant walked back inside the apartment.  The officer got consent to enter the apartment and followed the defendant inside.  Shortly after the officer entered the apartment he found marijuana.  The defendant eventually admitted to possession of the marijuana.

DEFENSE:  Discovery depositions were conducted, and the officer admitted to ordering the defendant to stop without any reason to suspect he was involved in a crime.

RESULT:  After discussions with the State Attorney the charges were dropped.

CASE #05-CM-030166 & #05-CM-028296; Judge Joelle Ober

1st CASE

FACTS:  The defendant was arrested on two separate occasions for possession of marijuana.   The first time the defendant was alleged to have possessed marijuana in his dorm room.  The officer attempted to enter his room without prior permission or consent.

DEFENSE:  We Motioned the Court for discovery depositions in order to determine the circumstances surrounding the officer’s entry into the defendant’s room.   The Court granted our request.

RESULT:  After questioning the law enforcement officer the State Attorney agreed to drop the marijuana charge

2nd CASE

FACTS:  The defendant and some other friends were throwing the football on a field on campus when the officer approached the defendant.  When the officer approached the defendant he was standing next to a table with marijuana cigarette on it that had been recently smoked.   After the officer questioned the defendant he was arrested for possession of marijuana. 

DEFENSE:  After conducting the above discovery deposition with the State Attorney it became evident that the officer was unable to satisfactorily connect the marijuana joint to the defendant despite the circumstances.   The Defendant’s mere proximity to the controlled substance (marijuana) is never enough.

RESULT:  The State Attorney agreed to drop the marijuana charge after we questioned the officer in discovery depositions.

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