Drug Crimes

This month's Texas Bar Journal alerts us to a few new criminal laws in Texas that our elected officials have just added to the books.  Below are some of the more interesting (imo) additions:

Bath Salts - House Bill 2118 outlaws the possession of bath salts, or the chemicals contained in bath salts.  Apparently, folks were using bath salts as alternatives to cocaine, LSD, ecstasy, and methamphetamine.  This is now a felony offense.

Spice - Senate Bill 331similarly bans the possession of synthetic marijuana (i.e. "K2" or "Spice").  Depending on the quantity of the substance possessed, this new offense will be a Class B misdemeanor up to a first-degree felony.

Sexting for Minors - Under Senate Bill 407, Texas teenagers that send naked photographs via text message will no longer be deemed to have sent "child pornography."  Sexting will now be considered a Class C misdemeanor for a first offense.

Supreme Court Case Review -  Kentucky v. King, opinion dated May 16, 2011:

Officers set up a controlled buy of crack cocaine outside an apartment complex. After the deal, the suspect went into the apartment building. Officers followed the suspect into a breezeway where they saw two apartments, one on the left and one on the right. The officers did not see which apartment the suspect entered. The officers smelled marijuana smoke emanating from the apartment on the left as they approached the door.

Knock and Announce

One of the officers knocked loudly on the door an announced, “Police, police, police.” The officers did not demand entry or threaten to break down the door. As soon as the officer started banging on the door, he heard noises that led him to believe that drug related evidence was being destroyed inside the apartment. At this point, the officers announced they were going to enter the apartment and they kicked down the door. Once inside the apartment the officers performed a protective sweep and recovered marijuana and powder cocaine in plain view. Officers eventually entered the apartment on the right and found the suspected drug dealer who was the initial target of their investigation.

One well recognized exception to the warrant requirement applies when the exigencies of the situation makes the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment. The need to prevent the imminent destruction of evidence has been identified as one of the exigencies that may justify the warrantless search of a home. Where, as here, the police do not create the exigency by engaging or threatening to engage in conduct that violates the Fourth Amendment, warrantless entry to prevent the destruction of evidence is reasonable.

When officers who do not have a warrant knock on a door, they do no more than any private citizen might do, and the occupant has no obligation to open the door or speak to them. It was only after the officers knocked on the door and announced, “Police, police, police,” did the exigency arise. Because the officers did not violate or threaten to violate the Fourth Amendment by demanding entry, or threatening to enter the apartment, the court held that the exigency that arose afterward justified the officers’ warrantless entry into the apartment.

Today, the Texas Court of Criminal Appeals released Meekins v. State, a case out of Lubbock County wherein the issue for appellate review was whether that State proved by clear and convincing evidence that Appellant had consented to a search of his vehicle.

At a pre-trial hearing to determine whether the drugs found during the search should be suppressed, the trial court ruled that Appellant’s consent to search was given knowingly and voluntarily. The court, therefore, refused to suppress the evidence. Here’s the evidence on which the trial court based its ruling:

After officers pulled Appellant over for failing to signal a turn, the following exchange occurred between Appellant and the officer while the officer talked to Appellant through the driver's side window:

Officer: You don’t have anything illegal in the vehicle, no weapons or anything like that?

Appellant: No

Officer: You don’t mind if we take a look?

Appellant: (Inaudible) Look in the car or what?

Officer: Yeah.

Appellant: I don’t have anything.

Officer: Okay. You don’t mind if I look? It’s yes or no, bud.

Appellant: What do you think?

Officer: What do I think?

Appellant: Yeah.

Officer: I’m asking you to look in the car.

Appellant: (Inaudible)

Officer: Don’t reach around, bud, just in case you got a gun.

Appellant: I ain’t got no gun or nothing.

Officer: You don’t mind if we look?

Appellant: I just…(inaudible) That it (inaudible).

Officer: Okay.

Appellant: (Inaudible)

Officer: I’m asking if I can look in the vehicle. It’s yes or no.

Appellant: (Inaudible)

Officer: Is there anything else you might have? You seem a little nervous, you know what I’m saying? You’re making me nervous.

Appellant: I ain’t nervous.

Officer: Okay. Do you have anything illegal in your vehicle?

Appellant: No.

Officer: Okay. Do you mind if I look?

Appellant: I guess.

After that, the officer, believing he has been given consent, ordered Appellant to exit the vehicle. Ultimately the officer found the contraband (marijuana) in Appellant’s pocket.

The 7th District Court of Appeals (Amarillo) reversed the trial court’s ruling, holding that “the State failed to clearly and convincingly prove that Appellant granted the officer positive, unequivocal, and voluntary consent to search his car.”

In an opinion written by Judge Cochran, the CCA now reverses. Upholding the trial court’s original ruling, the CCA relied on the "totality of the circumstances" and the deference given the trial court to make factual. The CCA noted, however, that this was a close case and that if the trial judge had found that the consent was not voluntary, they would have upheld that factual finding as well.

Dissenting, Judge Meyers joined by Judge Price, states:

I certainly do not know what is clear and convincing about appellant’s alleged consent. Although the majority gives lip service to the applicable rule, the majority misapplies it because these facts are anything but clear and convincing.

The dissent goes on the state that because Appellant’s words and actions demonstrate evasiveness and reluctance rather than positive, unequivocal consent, the evidence should have been suppressed.

This case shows how important it is to fight (and win) suppression motions at the trial level. An appellate lawyer can only do so much against the mountain of deference the appellate courts give the original fact finder’s decision. As the CCA noted in this case – if the trial court had gone the other way, they would have held that way too.

The Texas Court of Criminal Appeals recently heard a case involving excessive force by police.

In, Hereford v. State the ultimate issue presented to the CCA was whether forced used by officers to recover drugs from a defendant was excessive and unreasonable. The court held that it was.

The appellant in Hereford pulled into a parking lot and got out of his car. An officer observed him and recognized him as someone he had dealt with in the past. The officer knew Hereford had outstanding warrants. The officer conducted a pat down search and arrested him for the warrants. After appellant was arrested, the officer searched his vehicle. When the officer did not find any narcotics, he called a K9 unit whose dog alerted on the car.  Despite the alert, officers again failed to find any narcotics. When the officer returned to his patrol unit, appellant had his head down and was chewing on something. The officer commanded appellant to spit it out but he refused. The officer and two others then removed appellant from the patrol unit and tased him on the leg. The officer who made initial contact with appellant then grabbed him around the throat and tried to force him to spit out the substance. The officers then ceased trying to force the appellant to spit out the substance. After discussing their options for fifteen to twenty minutes, the officers decided to take the appellant to the hospital.

At the hospital, the officers appellant over to another officer working off-duty at the hospital. Appellant still had the substance in his mouth.  The hospital tried to get him to release it by using ammonia capsules. This did not work. The off-duty officer then took appellant into an examining room and began to tase him repeatedly – three times in the upper inner thigh (the groin) and once in the right forearm. When he was being tased, appellant's mouth would open involuntarily.  While appellant's mouth was open (during the tasing of his groin) the officer was able to get the substance out of his mouth.  It turned out to be a plastic baggie of crack cocaine.

The issue presented for the CCA was whether, under the Fourth Amendment, the manner in which the evidence that was seized was reasonable. The court used the factors found in Winston v. Lee, 470 U.S. 753 (1985) to balance the intrusion to the appellant’s personal interests, the societal need for effective law enforcement, and the state’s need for evidence. Those factors include whether the police conduct:

1. threatened the suspect’s health or safety;
2. conformed to accepted medical practices;
3. was performed by a trained professional;
4. arose from the existence of probable cause to believe the suspect had evidence of a crime;
5. unduly intruded upon the suspect’s dignity interests in personal privacy; and
6. was a commonplace procedure to which individuals are often subjected.

Balancing those interests, the court found that the off-duty officer’s actions were unreasonable and violated appellant's Fourth Amendment prohibition against unreasonable searches and seizures.

The CA, however, made it a point to highlight that this ruling was not to be construed to imply that the use of a Taser in these types of instances is per se unreasonable. The Court highlighted Ellis v. Columbus City Police Dep’t, No. 1:07CV123-A-A, 2009 U.S. Dist. LEXIS 95821 (N.D.Miss. September 15, 2009), where almost the same set of circumstances happened.  In that case though, the suspect had lunged at officers and was openly chewing a plastic bag of cocaine. The Court differentiated that case from this one by explaining that in Ellis, the officers stopped after tasing appellant several times and the tasing occurred during the arrest (not long after and by another officer).

Presiding Judge Keller dissented without opinion.

It Takes Two to Tango | Can a Person be convicted for Conspiring With a Government Informant?

United States v. Delgado, U.S. Courts of Appeals for the 5th Circuit (Federal)

In this U.S. v. Delgado, the Defendant-Appellant, Maria Aide Delgado, was convicted of

1. possession of marijuana with the intent to distribute and
2. conspiracy to commit the same offense.

She was sentenced to a concurrent term of 100 months imprisonment for each conviction. Delgado appealed, complaining that she shouldn't be convicted for Conspiracy if she was Conspiring With a Government Informant.

The Federal 5th Circuit Court of Appeals dismissed a conspiracy charge in the indictment because the government failed to introduce sufficient evidence to establish that the Appellant entered into a conspiracy with anyone other than a government informant. While it takes at least two people to form a conspiracy, an agreement must exist among co-conspirators who actually intend to carry out the agreed upon criminal plan. A defendant cannot be criminally liable for conspiring solely with an undercover government agent or a government informant, therefore, evidence of any agreement Delgado had with the government informant cannot support a conspiracy conviction.