Drug Crimes

Officers Are Justified in Stopping Vehicles to Render Emergency Aid Making Evidence Found in the Process Fair Game

The Fifth Circuit Court of Appeals recently handed down an opinion dealing with the emergency-aid warrant exception and whether that exception extends to vehicular stops. The issue facing the court was whether a traffic stop of Appellant Toussaint to warn him that a gang member had ordered a hit on him was justified under the emergency aid exception to the Fourth Amendment. The court reversed the suppression order from the trial court holding that the emergency aid exception did justify the stop because this was a proper exigent circumstance.

US v. Toussaint (5th Circuit - 2016)

The Facts—Trial Court Found the Exigent Circumstances Had Expired

An FBI agent monitoring a wiretap overheard a suspected gang-member order his associate to kill Toussaint who could be found in a specific neighborhood driving a specific car, a silver Infiniti. Immediately the agent contacted a local police officer who met with several other officers to determine the plan to locate and warn Toussaint of the hit. The officers drive to the specified neighborhood and search for silver Infinities until they find one with an occupant leaving the neighborhood. The officers follow the vehicle, observe the driver, Toussaint, speeding and pull him over. Once pulled over Toussaint flees the officers on foot until he was caught and placed under arrest. During a search of Toussaint incident to arrest officers found a pistol and a bag of crack cocaine. The amount of time between the FBI agent overhearing the initial threat and Toussaint’s arrest was about 45 minutes.

Toussaint was charged with drug and firearm violations. Toussaint filed a motion to suppress the evidence obtained from the stop arguing that the stop was not justified. The trial court granted Toussaint’s motion to suppress finding that the exigency of the emergency had expired by the time the officers stopped Toussaint.

The Court of Appeals Reversed the Trial Courts Decision—Holding the Emergency-Aid Exception Applied in this Case and the Exigency Had Not Expired

The court held that the emergency-aid exception extends to vehicular stops when under the circumstances of the need to assist persons with serious injuries or threatened with serious injury. The emergency aid exception allows officers to conduct warrantless searches or seizures when there is a need to assist persons with serious injuries or threatened with a serious injury. Stuart, 547 U.S. 398 at 483. Under this exception, officers can enter areas they otherwise are not allowed in order to help someone. While the majority of such cases involve warrantless entries into homes, the court determined that there is no logical reason to not extend the exception to vehicular stops. Additionally, looking to reasonableness, “the ultimate touchstone of the Fourth Amendment,” the court stated “the benevolent act of trying to notify a driver that his life is in danger epitomizes reasonableness.” Thus, the court held that the emergency aid exception can be used to justify a traffic stop under proper exigent circumstances.

Then, the court held that the exception applied in this case and officers were justified in stopping Toussaint. The court stated that trial courts must examine objective facts of the circumstance in determining whether there was an objectively reasonable basis for believing exigency actually existed. The officers’ subjective motivations are never relevant in the determination. When the officers received what all parties agreed was a credible threat against Toussaint, who was located in a specific neighborhood and driving a specific vehicle, the court held it was reasonable for the officers to believe there was a serious threat on Toussaint’s life. Further, that exigency still existed at the time of the stop because the threat on Toussaint’s life had not ended within the 45 minutes it took officers to locate him and warn him. Since the stop was justified the search was proper and evidence was legally obtained because it would be contrary to the needs of law enforcement to force officers to ignore evidence found when they stop vehicles to render emergency aid.

In conclusion, the court held that the emergency aid exception extends to vehicular stops and that here, the stop of Toussaint was justified under this exception because there was a serious threat on his life. Accordingly, the court reversed the suppression order because the trial court was improper in granting the motion.

Last week I wrote about things that every parent needs to know about kids and drugs. Today, I want to share with you a valuable resource to use if your child has gotten involved in drugs in Tarrant County. If your teenager has been charged in juvenile court with their first drug offense, you need to ask about the Tarrant County Juvenile Drug Court Program.

The Basics of the Program

The Drug Court Program in Tarrant County was launched in 1999. It was the first of its kind in the State of Texas. It is a voluntary program aimed at first time juvenile drug offenders. According to Tom Zaback, a Tarrant County juvenile probation officer and the supervisor of the program, 80% of the participants in Drug Court graduate the program successfully.

Juveniles in the program, and their parents, are required to commit a lot to Drug Court. This commitment to the program leads to a commitment to change, which contributes significantly to juveniles graduating from Drug Court and kicking their drug problem. While in Drug Court, which lasts for six months, juveniles and their parents will work closely with a probation officer and drug counselors in classes and groups that are tailored to meet the individual needs of each child.

The Process of the Juvenile Drug Court Program

Cases are screened automatically by the probation officers assigned to Drug Court to determine kids who may be appropriate for the program. However, if your child has been charged with a drug offense and you feel this may be a good option for him, you can ask your intake probation officer about being considered for inclusion in Drug Court.

Once a juvenile has been identified for the program, one of the Drug Court probation officers will schedule an intake with that child and his parents. During the intake appointment, the probation officer will explain the requirements of the program, get a social history from the family, and have the juvenile to take a drug test. The juvenile must also submit to a drug assessment during the screening process. This assessment will help to determine the level of that child’s drug problem and the recommended level of treatment needed. At the end of the screening, the probation officer will make a recommendation about whether that child should be allowed into Drug Court.

If a juvenile is recommended for Drug Court, the case is then sent to the Tarrant County District Attorney’s Office Juvenile Unit for prosecution. The prosecutor will review the case and file the charges with the court. The Tarrant County Juvenile Court will then schedule the case for a drug court hearing. At that hearing, the juvenile must stipulate, or admit, to the charges. The judge will enter a judgment withheld, which means that the judge will note that there is sufficient evidence to adjudicate the juvenile delinquent (or find him guilty), but will not, at that time, actually adjudicate the juvenile. The judge will then order him into the Drug Court Program.

Every juvenile in the program must come back to court for a judicial review at the 3-month mark and again at the end of the program. The purpose of this judicial review is for the judge to monitor the child’s progress in Drug Court. At the end of the six-month program, if the child has successfully completed all requirements, the judge will deny the prosecutor’s petition and order the child’s offense record to be sealed immediately. This is a huge benefit to the child because it means that he can honestly say to anyone asking in the future that he has not been charged or adjudicated for a drug offense. Sealing one’s record effectively erases it from existence.

The Requirements of the Tarrant County Juvenile Drug Court Program

As I mentioned above, while in Drug Court, a kid will be required to work with a probation officer and drug counselor to resolve any problems that he is facing with regards to drugs. There are other conditions that a juvenile in the program is required to follow, which are similar to the conditions of traditional probation. Some of these conditions are: no drugs, go to school, be honest, and attend treatment regularly. If a kid violates the terms of his Drug Court agreement, a progress report will be sent to the judge. If it is determined that a juvenile has violated the terms of the program to the extent that he is kicked out, he will be required to return to court for a disposition hearing. At this court hearing, the judge will enter a finding that the juvenile is adjudicated of the drug offense and then proceed to determine the appropriate punishment, or disposition, for the drug violation. This may result in the child being placed on traditional probation, being ordered to attend an in-patient drug treatment program, or in extreme cases, being sentenced to the Texas Juvenile Justice Department. Additionally, a driver’s license suspension will usually be ordered.

The Tarrant County Juvenile Drug Court is a wonderful program designed to help kids who are charged with a first-time drug offense. Its purpose is to help juveniles work through their drug problems while giving them a second chance to keep their juvenile record intact. The program is very successful. It requires a high level of commitment from the juveniles and parents who are in it, but that commitment is rewarded with a true change in the behavior, attitude, and lifestyle of that child. If your child is struggling with drugs, it is worth asking whether the Tarrant County Drug Court Program can help.

What Every Parent Needs to Know About Drug Crimes and the Juvenile Justice Process

One of the most common way for teenagers to run afoul of the law is with drugs. Between peer pressure, synthetic drugs, and confusion over possession vs. ownership, there are many pitfalls surrounding the topic of drugs for kids. Many times, parents aren’t even aware their child has been exposed to drugs until that child is in trouble. Here are some basic things that every parents needs to know about kids and drugs before it’s too late.

Levels of Drug Offenses and Ranges of Punishment in Texas

In Texas, criminal offenses are divided into two major categories: Felonies and Misdemeanors, with felonies being the more serious. Except for possession of small amounts of marijuana or prescription drugs, all other drug offenses in Texas are felonies. This means that this is a very big deal if your child is arrested for drugs.

In the juvenile system, the punishment for misdemeanors ranges from nothing up to probation until that child’s 18th birthday. This probation can be served out at home. However, if appropriate, the court can order the child to a treatment facility, boys’ ranch, or some other kind of placement as part of the probation.

The punishment options for felonies in the juvenile system, like for misdemeanors, include doing nothing and probation up to a child’s 18th birthday (with or without placement outside of the home). For felonies, however, the court also can commit a child to the Texas Juvenile Justice Department (TJJD), which is the prison system in Texas for kids. A commitment to TJJD can last up until a child’s 19th birthday.

Synthetic Drugs - A Moving Target

Some of the most popular drugs in use today are synthetic or designer drugs. They go by a variety of nicknames including K2, bath salts, and Spice. These particular drugs are especially dangerous for a number of reasons. First, because they are a chemically altered variation of an illegal drug, they are legal in many cases. The legislature is still struggling to write the laws in such a way to criminalize all of these variations. As they make one chemical formula illegal, the chemists making these drugs alter it to escape prosecution. The law is making headway in this field, but it is a slow process. Because of this loophole, many of these synthetic drugs are legally sold in stores and over the internet. This makes it very easy for kids to get their hands on them.

The second reason why these drugs are particularly dangerous is because there is no way for a user to know what exactly is in the dose they are taking due to the rapidly changing chemical alterations that are being made to stay ahead of the law. The K2 your child takes today may be drastically different from the dose he took last week. There is also no way to know what side effects a specific chemical combination will have on a particular person or even the human body generally.

Part of the reason why these drugs are so popular with kids is because it is almost impossible to detect them. Because of the quickly changing chemical makeups of these drugs, it’s difficult to develop a drug test that can detect them all. Additionally, most parents have never heard of these drugs, which makes it easier for kids to get away with using them without their parents realizing what they are doing. This difficulty in detecting these drugs makes it more likely for kids to abuse these particular substances.

Prescription Drugs

Another category of drugs that has risen in popularity with teenagers is prescription drugs. These are used frequently by kids because they are easy to get their hands on. All they have to do is to go to the medicine cabinet at home and help themselves to whatever drugs are on the shelf. It doesn’t matter what the prescription is for or who it belongs to, it can be abused by kids. Teens have been known to sell and/or use pills prescribed for everything from ADD to depression to high blood pressure. When parents are unaware of the potential for kids to take these medicines, they are unlikely to secure them in order to keep them away from their teenagers. There have been several cases recently in Tarrant County where kids have been arrested at school for illegally selling or possessing a prescription drug that they took from their parents.

Ownership vs. Possession

When it comes to the drug laws, many kids are confused about the difference between ownership vs. possession. The law makes it illegal to possess drugs, regardless of who owns them. In fact, because drugs are considered “contraband,” the law doesn’t consider anyone to “own” them. Many kids, when busted for possessing drugs, will say, “But it’s not mine. I was just holding it for my friend.” They don’t understand that this means they are breaking the law, not their friend. Possession is defined as having care, custody, and control of something. This means that if you have the drugs in your pocket, you are in possession of them whether you “own” them or not.

Many “good kids” who wouldn’t dream of committing a crime will get caught holding drugs for their friends. Because they don’t understand that, if caught, they will be the guilty party and not their friend, they agree to hold onto the drugs for their buddy. It’s important that parents talk to their kids and explain this aspect of the law and the effect it can have.

Common Situations Where Kids Encounter Drugs

As I said at the beginning, drugs are a common reason why kids find themselves in the juvenile justice system and in alternative school for a period of time. It is a slippery slope that many teenagers find themselves on before they even realize what has happened. Below are some of the most common places for kids to encounter drugs.

1. School
Our kids spend a good deal of their time at school. By the time a kid gets into middle school and high school, a big chunk of their social circle is centered around school. School is also the place where they are likely to encounter a wide variety of different people. So, it’s no wonder, that it is also the place where many kids first encounter drugs. Not only do the school administrators and teachers have to be on the alert for drugs in school, but parents also need to be aware and be proactive in preparing kids to walk away when they encounter drug activity in the school environment.

2. Friends
When kids are in their preteen and teenage years, peer pressure is a very powerful force. Many kids are first exposed to drugs by their friends. Therefore, it is important, as parents, to know our kids’ friends and to be around them enough to pick up on whether these friends have a problem with drugs before our kids follow the same path. It’s also important for parents to consistently work on having that open communication with their kids so that, when the time comes, your kids can feel comfortable coming to talk to you about drugs and friends. Kids also need to know that if they are ever asked to hold onto to drugs for their friends, that they must say no, even if it means losing a friend over it.

3. Cars
Cars present a tricky scenario for kids when it comes to drugs. If your teen gets into the car with someone who has drugs, it is very possible that your child will get charged with the drugs if they are pulled over by police. When police and prosecutors are looking at who within a car to charge with possession of the drugs, they will many times look to the person who was sitting the closest to the drugs. If someone else in the car drops their stash of drugs near your child, then it may appear that your child was the one in possession.

This is a situation where parents need to talk to their children about how easy it is for them to be in a car with others and be held responsible for the actions of those other people. Kids need to be very careful about who they get into a car with. Parents need to prepare their kids to make the right decision when confronted with whether to get in a car with someone or not.

Conclusion

While it is common for otherwise “good kids” to get in trouble with the law when it comes to drugs, it is not inevitable. If parents take the time to educate themselves and their kids about the pitfalls that drugs can create, they can help their teenagers to avoid getting involved in the juvenile justice system.

About the Author

Christy Dunn is a writer and attorney licensed to practice in Texas. She was a prosecutor for 15 years. The last five years of her prosecutorial career was spent in the Juvenile Division of the Tarrant County District Attorney’s Office. She has tried over 20 juvenile cases in Texas and multiple certification hearings. She was part of the multidisciplinary team that created a Project SAFeR.

Texas Court of Criminal Appeals Upholds a Stop and Frisk Case

Furr v. State (Tex. Crim. App. 2016)

On September 21st the Criminal Court of Appeals decided Furr v. State. In Furr, the Court held that an anonymous tip was sufficiently corroborated to establish reasonable suspicion to stop and frisk Appellant Furr. To support the stop and frisk, the court noted that Appellant:

• watched the officer as he drove by,
• repeatedly looked at the officer as he walked away,
• was nervous, anxious and sort of out of it,
• appeared under the influence of drugs, and
• did not initially respond as to whether he was armed.

Further, the Court stated it is not per se objectively reasonable for a police officer to execute a pat down of a suspect for weapons simply because they are accused of drug possession.

The Facts of Furr v. State

Corpus Christi Police Department received an anonymous tip that two men were doing drugs on a particular street corner, one dressed in all black and the other in a black shirt carrying a brown backpack. In response, an officer drove past the street corner. He observed two men that fit the description from the tip and noticed in his rearview mirror that the men were watching him as he drove by. The officer then approached the two men but one of the men, Furr, walked away into the nearby shelter, repeatedly looking over his shoulder at the officer. The officer described Furr's actions as furtive, “like he was trying to get away.”

When another officer arrived, the officers made contact with Furr. Furr was described as nervous, anxious, evasive, and was sweating excessively. Furr did not respond when the officers initially asked if he had any weapons on him. Officers said he appeared “kind of out of it” and “like he was under the influence of a drug. As a result, for safety reasons, officers frisked Furr for weapons and found a glass crack pipe in Furr’s front pocket. When removing the pipe, the officer also found two syringes, and after arrest, two small balloons of heroin.

Furr was charged with possession of a controlled substance. He pled guilty, reserving his right to appeal after his motion to suppress was denied. Furr argued on Appeal that officers did not have reasonable suspicion to stop and frisk him and that the trial court erred by not granting the Motion to Suppress the search.

The Court of Appeals Affirmed the Trial Courts Decision

The court of appeals held that Furr’s nervousness coupled with the observation that he seemed to be under the influence of a drug sufficiently corroborated the tip to support the investigative detention and that Furr’s failure to initially respond about being armed coupled with the other circumstances justified the frisk.

The Criminal Court of Appeals Concluded that there Was Reasonable Suspicion to Detain and Frisk Furr.

1. The Analysis of the Detention

In order to detain a person, the police officer must have reasonable suspicion based on “specific articulable facts, when combined with rational inferences from those facts, would lead him to reasonably conclude that the person detained is, has been, or soon will be engaged in criminal activity.” Wade v. State, 422 S.W.3d 661, 668 (Tex. Crim. App. 2013). Anything that happens or that is observed before the detention will be considered in determining whether the officer indeed had reasonable suspicion to detain Furr.

Furr argued that the anonymous tip alone was not enough.  The Court, however, explains that if there had only been the anonymous tip, it would not have established reasonable suspicion, but here there was more. The Court identifies several independent observations:

• Furr and the other man were at the specified location and matched the informant’s description.
• The area was a “high drug, high crime” area.
• Furr and the other man watched the officer as he drove past
• When the officer approached the two, Furr walked away “furtively.”
• When the officers came upon Furr in the shelter he was sweaty, nervous, anxious, and appeared out of it as if he was under the influence of a drug.

Thus, the reasonable suspicion here was not solely based on the informant’s tip, but instead that tip was corroborated by independent observations made by the police officers. Looking at the totality of these circumstances, the Court held that the officers had reasonable suspicion to stop Furr and investigate the information from the anonymous tip that Furr and the other man were using and possessing a drug.

2. The Terry Frisk

The Court rejected the State’s request to adopt a rule that it is, “per se, objectively reasonable for the police to pat down a suspect for weapons if they are accused of possessing drugs,” because reasonable suspicion to frisk a suspect cannot be established by accusations of drug possession alone.

The Court further rejects the State’s argument that the officer was objectively justified in patting Furr down for weapons because this was outside of a homeless shelter for two reasons: 1) Nothing in the record shows that the shelter was a homeless shelter; and 2) Even if it was a homeless shelter, the Court does not see a correlation between being armed and dangerous and being at a homeless shelter.

Even so, the Court ultimately agrees with the court of appeals that reasonable suspicion was established here because the anonymous tip was corroborated by all of the circumstances surrounding the officers’ interactions with Furr. Specifically, the Court noted the tip, personal observations by the officers and the high drug, high crime area would warrant a belief that the safety of officers and others was in danger.

DISSENT - Stop and Frisk Should Have Been Held Unlawful

Judge Meyers dissented from the majority and opined that the stop and frisk of Furr was unlawful and that the motion to suppress should have been granted. Judge Meyers concluded that neither Furr’s action of looking over his shoulder or the anonymous tip, alone or combined, were sufficient to establish reasonable suspicion. Thus, there was no need to analyze the legality of the frisk. Judge Meyers believes that the majority made its decision “not based on law but on the feeling that Furr should not get relief.”

5th Circuit Holds that Prosecutors need not provide evidence for each one of the Ceballos-Torres ‘Felon in Possession in Furtherance of a Crime’ factors.

US v Walker (5th Circuit 2016)

At trial, Henry David Walker pleaded guilty to conspiracy to possess with intent to distribute meth and possession of a firearm in furtherance of a drug-trafficking crime, violations of 21 U.S.C. §§ 846, 841(a)(1) and 18 U.S.C. § 924(c)(1)(A). On record at the arraignment hearing and post-plea, Walker admitted to possessing nine firearms, including a 32-caliber firearm, two 22-caliber rifles, two 20-gauge shotguns, two revolvers, and a 9-millimeter semiautomatic gun—all of which were found at the scene of the arrest. US v. Walker, 218 F.3d 415. The district court sentenced Walker to concurrent terms of 151 months in prison for the conspiracy charge, and an additional 60 month statutorily-imposed mandatory sentence for the possession of a firearm in furtherance of a drug-trafficking crime. Walker appeals to the Fifth Circuit Court of Appeals, arguing that “factual basis” established after the guilty plea was insufficient to prove that he possessed the firearms in furtherance of a drug-trafficking crime.

The Big Issues before the Fifth Circuit: Did the Government Satisfy the "Felon in Possession" Requirements?

Walker’s plea came before the factual basis for the charge was established on record—was the apple put before the cart? The Court must determine whether a factual basis can be established after a guilty plea, and if so, whether the factual basis for Walker’s conviction was sufficient. The Court must also determine whether prosecutors need to provide evidence for each “felon in possession” factors.

Federal Law Regarding Felon in Possession in Furtherance of a Crime

A guilty plea is insufficient in itself to support a criminal conviction—the court must satisfy itself, through an inquiry of the defendant or examination of the relevant materials in the record, than an adequate factual basis exists for the elements of the offense.” Fed. R. Crim. P. 11(b)(3); United States v. Adams, 961 F.2d 505, 508 (5th Cir. 1992).

Any person who, during and in relation to any crime of violence or drug trafficking crime…uses or carries a firearm, or who in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime …be sentenced to a term of imprisonment of not less than 5 years…” 18 U.S.C. § 924(c)(1)(A)(i).

The mere presence of a firearm is not enough—possession of a firearm is ‘in furtherance’ of the drug trafficking offense when it furthers, advances, or helps forward that offense. United States v. Palmer, 456 F.3d 484, 489-90 (5th Cir. 2006); United States v. Ceballos-Torres, 218 F.3d 409, 410-411.

Factors that help courts determine whether the possession of the firearm was in furtherance of a drug-trafficking crime include: (1) type of drug activity; (2) accessibility of the firearm; (3) type of weapon; (4) whether weapons are stolen; (5) whether the possession is legitimate or illegal; (6) whether the gun is loaded; (7) proximity to the drugs or money; and, (8) the time and circumstances under which the weapons are found. Ceballos-Torres at 414.
The Fifth Circuit Analyzes the Ceballos-Torres Factors to Determine Walker’s Fate

Walker appeals to the Fifth Circuit, arguing that his case more closely aligns with United States v. Palmer, a case in which the Fifth Circuit reversed a defendant’s conviction based on lack of support under the Ceballos-Torres factors. The Fifth Circuit compares the three cases to analyze the factors.

WALKER	PALMER	CEBALLOS-TORRES
Claiming no evidence of proximity of guns to the drugs.	Gun was locked in a safe.	Guns found alongside a substantial amount of drugs.
Ammo matched the guns; most guns loaded.	Gun was not loaded.	Weapons loaded.
Claiming no evidence of accessibility of the gun (no easy access).	Ammo in the house did not match the gun.	Ammo present that matched the guns.
Walker is not a meth supplier.	Defense claimed he bought the gun for self-defense.	Convicted felon in possession of a firearm.
Nine firearms.	One unloaded firearm.	Multiple firearms.
Denies weapons used in the furtherance of drug-related activity.	Denied the gun was used in relation to drug trafficking.	Court found weapons were in furtherance of drug-related crimes.

Here, the Fifth Circuit say that “the factual basis need not provide evidence for every single one of the Ceballos-Torres factors for a court to conclude that the defendant possessed a firearm in furtherance of a drug-trafficking crime,” rather, they are examples a court “might include” in its analysis “to help determine” a judgment. Further, the government need not provide evidence supporting each and every factor to determine guilt.

Because Walker possessed the firearms at his residence alongside the meth he supplied to dealers, he was a convicted felon at the time of the possession of the firearms, and because there were so many weapons present at the scene, the Fifth Circuit affirmed the district court’s conviction and sentence.

Synthetic Cannabinoids became popular in the 2000's when they were first marketed as "legal herbs." In 2008, chemical analysis revealed that these designer drugs were more than just herbs.  The military, in particular, had a big problem with Spice and K2 (two forms of synthetic marijuana) in the late 2000's, because they gave users a similar (or greater) high than marijuana, but they were not included in any federal schedule of controlled substances.  As these substances became more popular and widely consumed, the DEA banned their use in 2010 using emergency temporary powers and then later by placing them on Schedule I of Controlled Substance Act.

How Do Controlled Substances Analogues (Designer Drugs) Fit Into the Federal Drug Control Scheme?

 

United States v Malone (5th Circuit Court of Appeals - 2016)

Thomas Malone and his business partner Drew Green owned NutraGenomics Manufacturing, LLC, a distributor of JWH-018, a synthetic cannabinoid substance, also known as “Spice” and “K2” on the street. However, in 2011 federal and state legislatures banned JWH-018 and other similar designer drugs or synthetic cannabinoids. Malone and Green began selling other synthetic cannabinoids, namely, AM-2201, known as “Mr. Miyagi…a mixture of AM-2201 and vegetable material that visually resemble[s] marijuana.” Eventually, Malone and Green ordered the mass manufacture of Mr. Miyagi, selling in bulk to a distributor in Louisiana. Although labeled as potpourri, Mr. Miyagi was supposed to be smoked like marijuana.

Malone Faced Federal Indictment For Possession and Distribution of Mr. Miyagi

A federal grand jury returned an indictment, charging Malone with one count of conspiracy to distribute and possess with intent to distribute AM-2201, and, one count of conspiracy to commit money laundering. Malone decided to take a plea agreement, pleading guilty to one count of conspiracy to distribute and possess with the intent to distribute a Schedule I Controlled Dangerous Substance, a violation of 21 U.S.C. §§846, 841(b)(1)(c), 813, 802(32)(A). The district court accepted Malone’s guilty plea of distributing not less than 1400 kilograms of AM-2201, and ordered a pre-sentence report. A pre-sentence report “PSR” is a report created by a probation office in anticipation of the punishment phase of a trial—the PSR in this case set out to determine “the base offense level using the marijuana equivalency of the most closely related controlled substance to AM-2201.”

Pre-Sentencing Report’s Mathematical Formula Indicated Severe Penalty

The PSR listed Tetrahydrocannabinol, THC, as the most closely related controlled substance to AM-2201. Further, the federal Drug Equivalency Tables indicated that a 1 to 167 ration be applied to convert the 1400 kilograms of AM-2201 into marijuana for the purpose of sentences under the federal Sentencing Guidelines. Using this mathematical equation, it was determined that Malone should be sentenced for 233,800 kilograms of marijuana—the highest level set forth by the Drug Equivalency Tables. At trial, each side put forth an expert witness arguing for and against the use of the THC and the THC ratio set forth in the PSR.

Battle of the Experts at Trial

The Government’s Expert

The Government called Dr. Jordan Trecki to testify that THC is the most closely related substance to AM-2201. Dr. Trecki relied on a scientific study “showing that both THC and AM-2201 bind to the same cannabinoid receptor” in the brain. Second, he testified about a study on rats where the rats could not tell the difference between THC and AM-2201. Third, he discussed AM-2201’s potency and effects on humans. Dr. Trecki told the court that THC and AM-2201 are close in chemical make-up and in effect on the structures of the brain. Dr. Trecki said, however, that there was no scientific basis for the 1:167 ratio.

Malone’s Expert

Malone’s attorney called Dr. Nicholas Cozzi, who stressed the importance of comparison of the two drug compounds—THC and AM-2201—in humans, not just in animals. Dr. Cozzi criticized Dr. Trecki’s analysis because Trecki “combined the results of several studies” and that the studies were not conducted on humans, rather they were animal studies. Dr. Cozzi stated that marijuana, not THC, was the most closely related substance to AM-2201 because it’s smoked and inhaled, like marijuana, and because both substances are consumed for their effect. Dr. Cozzi agreed with Dr. Trecki on one point—that the 1:167 ratio was not rooted in science.

The Big Issue Before the Fifth Circuit

Relying heavily on Dr. Trecki’s expert testimony, the District Court sentenced Malone to 117 months imprisonment and three years of supervised release following prison. The court noted that “the ratios in sentencing guidelines are often arbitrary… [however] the ratios seek to outline the relative harm of certain drugs.” Malone appeals to the Fifth Circuit Court of Appeals.

The Fifth Circuit must determine whether THC really is the most closely-related substance to the controlled substance analogue, AM-2201, and if so, whether the 1:167 ratio is a reasonable conversion for sentencing purposes.

The Fifth Circuit Weighs In

Here, the Fifth Circuit points out that the district court spent a day holding an evidentiary hearing on the equivalency of AM-2201 to other drugs, “it is significant that the district court gave this matter studied attention.” The court notes that each side had the ability to present an expert witness and to cross examine. “Nothing in the record leaves us with…the conviction that a mistake [was made].”

Second, the Fifth Circuit compares AM-2201 and marijuana, disagreeing with Dr.Cozzi’s assertion that both drugs are smoked and inhaled in the same manner. “Marijuana is not consumed way…there is no evidence that a user would smoke a pure form of AM-2201, just as a user would not smoke pure THC.”

Third, the Fifth Circuit says that the district court did not have to “engage in a piece-by-piece analysis of empirical grounding behind…[the] sentencing guidelines.” United States v. Duarte, 569 F.3d 357, 366-67 (5th Cir. 2009). Accordingly, the Court says that only the Commission on sentencing guidelines can change the guidelines, and therefore, does not rule on this issue. The Fifth Circuit agrees with the holding and reasoning of the district court—Malone’s sentence is affirmed.
*This case consolidates two cases, United States v. Malone and United States v. Green.

Frequently the public’s perception as to what officers can and cannot do during encounters is convoluted and even wrong. Many people are unaware of what their 4th Amendment rights actually afford them when it comes to contact with police officers. First, it’s important to know that an officer is completely free to approach whomever he wants and have a consensual encounter with someone whether or not he has a specific reason. However, an officer cannot detain you on a simple hunch, the police officer must have reasonable suspicion of criminal activity. Then comes the question of what exactly is reasonable suspicion.

What is Reasonable Suspicion?

According to Fourth Amendment law, reasonable suspicion exists when there are specific articulable facts that, when combined with rational inferences from the facts, would lead a reasonable officer to believe crime was afoot. The police officer must have more than a hunch that a crime was in progress. If a police officer detains, frisks, or searches someone without reasonable suspicion that officer has violated the 4th Amendment and evidence coming from that unlawful detention must be suppressed.

The 4th Amendment in Action - Brodnex v State of Texas (2016)

In a case just decided by the Court of Criminal Appeals of Texas, the Court overturned a conviction because it found the officer did not have reasonable suspicion to detain the defendant, thus, violating the 4th Amendment.

In Brodnex v. State, the defendant was arrested and convicted of possession of a controlled substance. The arresting officer observed Brodnex and a female walking in an area known for narcotic activity around 2 a.m.. The officer approached the two individuals, asked them their names and what they were doing. When Brodnex identified himself, the officer asked him “Didn’t you just get picked up?” and Brodnex replied “Hell no.” The Officer then searched Brodnex and found a cigar tube with crack cocaine.

The Officer’s reasons for detaining Brodnex were:

• The time of day;
• The area’s known narcotic activity, and
• His belief, based on what other officers had told him, that Brodnex was a “known criminal.”

Brodnex filed a motion to suppress challenging both the stop and search. The trial court denied the motion and the appellate court affirmed.

The CCA Overturns the Conviction for Lack of Reasonable Suspicion

The Court of Criminal Appeals of Texas held that Brodnex was illegally detained because at the time of detention, under the totality of the circumstances, the facts apparent to the officer “did not provide him with a reasonable suspicion for the detention.” Therefore, the crack cocaine should have been suppressed. The court's holding relied on the fact that the officer had simply seen Brodnex walking, not doing anything that would suggest he was engaged or about to engage in criminal activity. Additionally, the court found that the officer’s limited personal knowledge of Brodnex’s criminal history was not enough to support the belief that Brodnex was lying about not being picked up.

Know Your Rights

This case explains that the officer must have sufficient information that links the suspect to a particular crime before reasonable suspicion exists. While the time of day and high-crime area are factors that Texas courts consider, those alone are insufficient to develop reasonable suspicion. Since reasonable suspicion is based on the totality of the circumstances, it is often not completely clear as to whether a particular set of facts rises to the level of reasonable suspicion.

If you are facing criminal charges that resulted from a detention or search that might not have been supported by reasonable suspicion, any evidence found from might be able to be suppressed. Contact our criminal defense team today to discuss your case and determine whether a reasonable suspicion issue is present.

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Should a defendant charged with possession of drugs be punished for a "dangerous weapon" found at the scene of the drug trafficking and owned by a co-conspirator, when he did not know about the gun in the first place?

The Federal Fifth Circuit Court of Appeals thinks so.  See the Court's opinion in United States v. Guerrero.

On September 5, 2012, police were investigating a ranch in McAllen, Texas as a possible stash house for drug-trafficking. Officers observed Adrian Rodriguez-Guerrero coming and going from the ranch along with three other men in a caravan. When the officers stopped the caravan, “because the vehicles appeared weighed down,” a dog alerted to the presence of drugs. The police found “boxes of limes with bundles of marijuana concealed among the limes.” The defendants subsequently consented to a search of the McAllen ranch. (I'm always left wondering why people, especially those in possession of drugs, consent to a search.) “There the [police] found…clothing…a loaded shotgun and 125 shotgun shells…plastic cellophane, limes, packing tape…lime boxes, latex gloves, a large scale, and several bundles of marijuana.” In a written statement accepting responsibility, Rodriguez-Guerrero said he was hired to do landscaping at the residence, but was asked to “load the marijuana into a truck at the [ranch]…acknowledg[ing] the [ranch] as a stash house [for drugs].”

Conspiracy to Possess and Distribute Marijuana Enhanced for Possession of a Dangerous Weapon

At trial, he pled guilty to conspiracy to possess with intent to distribute 100 kilograms or more of marijuana, receiving a “guidelines-range sentence of 104 months” imprisonment and four years of supervised release. His sentence included a two-level enhancement for possession of a dangerous weapon—the shotgun found at the McAllen ranch. The district court noted, “[the Court] is not finding Rodriguez-Guerrero possessed the shotgun; rather, it was reasonably foreseeable…that there would be a weapon involved in…the… drug trafficking crime.” The district court added, “the shotgun was a tool of the trade and it [is] reasonably foreseeable to [Rodriguez-Guerrero] that there would have been a weapon, especially [to] a person with the experience that he has in drug trafficking.” Rodriguez-Guerrero appeals to the Fifth Circuit Court of Appeals, stating that there was no evidence to support a finding that either he or a co-conspirator possessed the shotgun—possession which lengthened his prison sentence.

U.S. Federal Sentencing Guidelines Application When a Dangerous Weapon is a "Tool of the Trade"

The United States Sentencing Guidelines Manual provides a two-level sentencing enhancement if “a dangerous weapon was present, unless it is clearly improbable that the weapon is connected with the offense.” U.S.S.G. § 2D1.1(b)(1), cmt. n.11(A). “The government must prove weapon possession by a preponderance of the evidence…[and can do so] by showing a temporal and spatial relationship of the weapon, the drug trafficking activity, and the defendant.” United States v. Zapata-Lara, 615 F.3d 388-90.

Here, the Fifth Circuit Court reasons, the McAllen ranch was a stash house for drug-trafficking, used to “package and transport marijuana.” The ranch was a warehouse to store and move drugs, not a residence “in which drugs were also stored.” Next, several bundles of marijuana were found in the ranch’s master bathroom, making it “plausible [the Court reasons] to find that either Rodriguez-Guerrero or another co-defendant accessed the master bedroom, where the shotgun was found.” Further, the rounds of ammunition suggest that the gun was connected with the drug trade. Lastly, the gun and rounds of ammunition were found on the same day that police observed Rodriguez-Guerrero and the co-defendants at the ranch.

The Court concludes that the “facts identified by the [district] court plausibly establish a temporal and spatial relationship between the weapon, the drug-trafficking activity, and Rodriguez-Guerrero.” The purpose of the sentencing enhancement is to punish because of increased danger and violence when drug traffickers possess weapons. U.S.S.G. § 2D1.1(b)(1), cmt. n.11(A). “The mere fact that a weapon cannot be attributable to any specific drug trafficker does not decrease the danger of violence.” Even though Rodgriguez-Guerrero may not have possessed shotgun, or that he may not have known about the shotgun is irrelevant. The Court states, “there was [sufficient] evidence to support that the weapon must have been possessed by one of the conspirators in furtherance of the conspiracy.”

In short, the Court says that establishing the “temporal and spatial” relationship is enough for possession in these types of drug trafficking cases; and, possession of a weapon could lead to enhanced, or increased prison sentences in federal courts.

Here's a Breaking Bad question for you: If Walt lets Jesse cook a batch of Meth and Jesse screws it up, such that it is unsellable, can they be punished for the amount of bad methamphetamine that they cooked in addition to the amount of good methamphetamine (if there were such a thing)? This 5th Circuit tells us in United States v. Ramirez-Olvera.

Antonio Ramirez-Olvera was convicted of possessing methamphetamine (meth) with the intent to distribute, violating 21 U.S.C. § 841(a)(1) and (b)(1)(B); he received a sentence of 240 months imprisonment, which is ten years below the bottom of the federal sentencing guidelines range for this offense.  Arguing that the district court excessively punished him, as the court did not distinguish between d-methamphetamine (“d-meth”) and l-methamphetamine (“l-meth”) for the sentencing guidelines’ equivalency table, Ramirez-Olvera appealed to the United States Court of Appeals for the Fifth District.

See the opinion in United States v. Ramirez-Olvera (5th Circuit, 2015)

How Should the Court Determine the Weight of Meth in a Possession Case?

The issue before the Court is whether federal courts must distinguish between the types of meth when deciding punishment, or, whether courts can punish based on a “lump sum” of the meth. As you can imagine, higher amounts generally mean a longer prison sentence.

Had the district court used only the d-meth in its calculations, Ramirez-Olvera’s prison sentence might have, in theory, been shorter. Relying on DEA lab reports,Ramirez-Olvera’s probation officer generated a presentence report that recommended, he “should be held responsible for 7.7 [total] grams,” combining both the l-meth and d-meth seized fromRamirez-Olvera’s home and car.

The Court discusses types of methamphetamine, highlighting the differences scientifically and practically. “D-meth and l-meth are stereoisomers of meth…consist[ing] of identical molecules [that are] differently arranged.” United States v. Acklen, 47 F.3d 739, 742 (5th Cir. 1995). D-meth causes psychological and physical changes in humans. L-meth, on the other hand, “produces little or no physiological effect when ingested.” Id. Further, L-meth is a “weak form of [meth], is rarely seen and is not made intentionally, but rather results from a botched attempt to produce d-meth.” U.S. Sentencing Guidelines Manual § 2D1.1(c)(1)(2014). In other words, l-meth is an accidental byproduct when creating d-meth goes awry; L-meth has little to no cash value.

The Court reviews this case anew, focusing on the plain meaning of the Federal Sentencing Guidelines for drug crimes; the Guidelines are the authoritative, controlling source of law. United States v. Moore, 733 F.3d 161-63 (5th Cir. 2013). Amendment 518, “a 1995 amendment to § 2D1.1, indicates that courts need not distinguish between d-meth and l-meth when determining the quantity of…meth attributable to a defendant.” U.S. Sentencing Guidelines, [Sentencing Commission Dicta], §2D1.1(c)(1)(2004). Under this amendment, “l-meth [is to] be treated the same as d-meth…thereby simplifying guideline application [from this point forward].” Id. Further, the Court “ha[s] relied on Amendment 518 to hold [in an unpublished case] that any distinction between d-meth and l-meth is now immaterial when calculating drug quantity under the guidelines. United States v. Beltran, 91 F. App’x 349 (5th Cir. 2004).

The Court affirms the district court’s opinion, holding that under Amendment 518 to the sentencing guidelines, meth no longer is to be categorized for sentencing purposes; l-meth and d-meth are to be added together to render the quantity courts will use in assessing punishment. All meth created, pure and botched, will be added together to determine a defendant’s prison sentence.

What Does it Mean to Be in Knowing Possession of Drugs in Texas?

Police found George Williams sitting behind an air conditioner unit of a business building. Even though it was a cool morning, Williams had his shirt off and was sweating profusely. After doing a pat-down of Williams, police found a crack pipe in his pocket that was later determined to have cocaine residue in it by police and a chemist.

The Trial Court convicted Williams of knowingly possessing a controlled substance. The elements are:

1. that appellant exercised actual care, control and management over the contraband; and
2. that appellant had knowledge that the substance in his possession was contraband.

The 14th Court of Appeals (Houston) wanted to look further to see whether the evidence would support a reasonable inference that the defendant knowingly possessed the contraband. When the quantity of a substance possessed is so small that it cannot be measured, there must be evidence other than mere possession to prove that the defendant knew the substance in his possession was a controlled substance.

Read the Case:  Williams v. State (14th District Court of Appeals - Houston, 2015)

In other cases, the defendant was convicted because the State proved that there was saliva on the crack pipe, suggesting that it had recently been smoked and that the defendant was intoxicated at the time the police found him. Another example is a defendant being found in a well-known drug house holding a syringe with cocaine in it in a manner that he was about to insert, or had just inserted it, into his body.

In this case, the Court of Appeals found that the only evidence was that Williams had his shirt off and was sweating. The Court of Appeals held that this was not enough to prove Williams had recently used the pipe or knew of its purpose as a crack pipe. The Court of Appeals reversed this case in the favor of Williams.

This signals that it takes more than just merely being found with a pipe containing trace amounts of a drug to be convicted of knowingly possessing the drug. There must be more evidence such as intoxication, recent usage, or being found in a known drug house.

Fort Worth Drug Crimes Attorneys | Free Case Consultation

If you have been charged with possession of a controlled substance or any other drug crimes, contact our attorney today for a Free consultation of your case. We will take the time to speak with you about the incident and answer your questions about the criminal justice process in Tarrant County. Contact our office at (817) 993-9249.

Driving in the “Passing Only” Left Lane for Forty-Five Seconds Creates Reasonable Suspicion for Warrantless Traffic Stop in Texas

Jaganathan v. State: Francheska Jaganathan was driving in the left lane of a three-lane Texas highway, just ahead of a police cruiser. Mounted with a dashboard camera, the cruiser accelerated and changed lanes, but stayed behind Jaganathan’s car. A few seconds later, Jaganathan’s car passed a “Left Lane for Passing Only Sign,” yet her vehicle continued in the left lane despite the middle lane being clear of traffic. About forty-five seconds later, the trooper turned on his overhead lights, and conducted a traffic stop of Jaganathan’s car. During the traffic stop, the trooper smelled marijuana, prompting a search of the vehicle. The trooper found marijuana in the trunk, and as a result, Jaganathan was charged with possession of marijuana.

At trial, Jaganathan filed a motion to suppress the evidence, but the court denied the motion. Jaganathan chose a plea agreement where she pled guilty and was placed on deferred adjudication. On appeal, Jaganathan argued that the trooper lacked reasonable suspicion to conduct the traffic stop in the first place. The court of appeals agreed with her, stating that Jaganathan likely stayed in the left lane for safety reasons, that seeing the cruiser may have influenced her decision to stay out of the trooper’s way, and that a few seconds were an insufficient amount of time “to conclude that [Jaganathan] committed a [traffic] violation.”

The Court of Criminal Appeals of Texas disagrees with the court of appeals, citing the reasonable suspicion standard in Texas, and the Texas Transportation Code. The Court of Criminal Appeals also clarifies the issue at hand.

The issue is not whether Jaganathan committed a traffic offense, but whether the trooper had reasonable suspicion to stop the vehicle.

First, “A trooper may make a warrantless traffic stop if the reasonable suspicion standard is satisfied.” Guerra v. State, 432 S.W.3d 905, 911 (Tex. Crim. App. 2014). “Reasonable suspicion exists if the trooper has specific and articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged …in criminal activity.” Abney v. State, 394 S.W.3d 542, 548 (Tex. Crim. App. 2013).

Second, “an operator of a motor vehicle [must] comply with an applicable official traffic-control device, including a sign.” TEX. TRANSP. CODE § 544.004(a); § 541.304(1). “Before a trooper can have reasonable suspicion to believe that a defendant committed the traffic offense of failing to obey a “Left Lane for Passing Only” sign, the trooper must be aware of facts that support a reasonable inference that the defendant drove past the sign before being pulled over.” Abney, 394 S.W.3d at 549.

Here, Jaganathan was driving in the left lane without passing other cars, after driving past a sign that prohibited that conduct. The dashboard camera captured the sign and all of the movements of the car. According to the Court of Criminal Appeals, even if Jaganathan had a defense of necessity—she HAD to be in the left lane for a medical or traffic emergency—the trooper still had reasonable suspicion to conduct a traffic stop. The Court of Criminal Appeals states, “these were only possibilities, and so it was reasonable for [the trooper] to suspect the appellant had violated the law.” Further, the reasonable suspicion standard “accepts the risk that officers may stop innocent people.” Illinois v. Wardlow, 528 U.S. 119, 125 (2000). As a result of the forty-five second traffic violation, the trooper had reasonable suspicion to pull Jaganathan’s car over; and, as a result of smelling marijuana, the trooper was able to search the car without a warrant, resulting in charges against Jaganathan. The Court of Criminal Appeals reversed the judgment of the court of appeals and affirmed the judgment of the trial court.

It is important to note, however, that the ruling has a dissenting opinion. Justice Meyers is adamant that the sign and the Transportation Code supporting it are problematic for the following reasons:

• The Code is unclear on how to comply or not comply with the sign.
• The Code does not state a specific amount of time a driver has to pass and merge back into the non-passing lane.
• The Code does not address passing a string of cars, in the middle lane.
• The Code does not address the need to accelerate to be able to pass, whether intended or unintended (for example if the car being passed speeds up, making passing difficult).
• Proving a driver’s intent to pass another car is difficult.

If you or a loved one are facing traffic violations or drug charges, please contact our office for a free consultation at (817) 993-9249.

Drug Crimes Can Come With Added Costs | Fort Worth Drug Crimes Defense Attorneys

Robert Ehrke was convicted of a drug crimes case - possession of between one and four grams of methamphetamine in a drug-free zone - and sentenced to seventy-five years in prison. The weight (1.6 grams) and composition of the substance were determined by a Department of Public Safety chemist.

In a pre-trial motion, Ehrke requested the trial court to provide for independent testing of the substance. Ehrke's attorney argued that, because 1.6 grams was so close to the 0.99 gram for a lighter sentence, independent testing was justified.

The trial court agreed it was required to allow Ehrke's counsel to inspect and examine the substance. However, because Ehrke did not demonstrate the need for the test or any reason why a second test would have different results, the judge denied the motion for independent testing. Ehrke's counsel's offer to secure payment for the testing did not change the judge's decision.

The Court of Appeals agreed with the trial court. The court based its decision on Ehrke's failure to show a particular need for independent testing or how an independent chemist would arrive at a different result.

On appeal to the Court of Criminal Appeals, the CCA identified two issues: (1) whether Ehrke had a right to inspection of the substance by an independent expert and (2) whether the state was required to pay for such an inspection.

The Court noted the Code of Criminal Procedure provided for a defendant to inspect evidence material to the state's case, but only if the defendant showed good cause for a request to inspect evidence. However, courts had found inspection mandatory if the evidence is material to the defendant's case.

The CCA said that in a controlled substance case, if the defendant asks to inspect the substance, the court must allow inspection because the substance will necessarily be material to the defense--no showing of good cause is required.

The CCA addressed the question of what an "inspection" entails. Obviously, simply looking at the substance, which is apparently all the trial court offered Ehrke's counsel, would not determine either its substance or its weight. The Court stated that in a controlled substance case, the right to pay for an independent chemist to analyze the substance is absolute.

On the second issue, the CCA acknowledged an indigent defendant's right to a court-appointed (read "court-paid") expert but said the defendant has the burden to provide specific justification for appointment of the expert. In Ehrke's case, the CCA said, no specific justification had been provided. Even though Ehrke's counsel explained the rationale for his request, he did not provide any evidence to question the original analysis by the DPS chemist, did not explain how independent testing was required for his defense and did not provide information regarding the complexity of the testing. According to the CCA, an absolute right to state-funded independent testing would be too great a financial burden to the County; therefore, appointment of an expert is required only if there is some preliminary evidence of a significant issue of fact to justify the appointment.

The Court remanded the case to the trial court for proceedings on the first issue.

The bifurcated decision in this case is perplexing. The Court said chemical analysis of an alleged controlled substance will always be material to a defendant's case and discarded the Code's requirement of a showing of good cause, making the right to independent testing absolute.

However, in the second issue, the Court seems to have abandoned its notion of materiality for a standard of affordability. On the part of the defendant, the Court cited case law that the state is not required to provide an indigent defendant with everything a wealthier defendant might be able to afford. More importantly, the Court concluded the financial burden to the County of paying for independent chemical testing in all controlled substance cases would be too great.

Examples abound of wealthy defendants procuring a better defense than an indigent defendant.  However, if an issue is always material to an indigent defendant's case to the point of making the right to independent testing absolute, it seems odd that the indigent defendant's right can be defeated by fiscal concerns of the County, which is in a much better position to pay for testing.

Contact our Drug Crimes Defense Attorneys Today for a FREE Consultation of Your Case at (817) 993-9249

Our Fort Worth criminal defense attorneys are experienced in defending drug crimes cases, including possession, possession with intent to distribute, manufacture, and more. If you are under investigation or have a pending charge, don't wait. Contact us today.