July 21, 2016

Marijuana Requires No Laboratory Report in Florida

What happens when Prosecutors use the testimony of a cop, with no testimony from a laboratory to identify the drug, Marijuana / Cannabis?


Florida Marijuana Laws, marijuana, cannabis, #cannabiscommunity, #cannabislaws, #marijuana, #norml
No Lab Report Needed
for Weed in Florida
The following sections are excerpts from the court's marijuana opinion testimony decision that can be found in its entirety here. "The issue before us is whether a police officer’s identification of marijuana, arrived at by sight and smell alone, is admissible experience-based opinion testimony. Because the officer’s opinion was based on his personal knowledge and perception and resulted from a process of everyday reasoning, we hold that the officer’s opinion was admissible as lay opinion testimony under Section 90.701, Florida Statutes."

"We find the officers’ testimony within the 
permissible range of lay
observation and ordinary police experience.”

Florida Law Weekly says, "Trial court did not abuse discretion by admitting police officer's testimony identifying substance as marijuana based on sight and smell alone -- Officer's testimony was admissible as lay opinion testimony because it was based on sufficient personal knowledge and senses of sight and smell, and it was arrived at through a process of everyday reasoning . . . ."

Another Florida Court Does Not Require and Expert or a Lab Test to Prove Possession Charges in Tampa UPDATED July 21 


"Florida's adoption of the Daubert standard has not changed the long established rule that lay persons can identify marijuana—and some other illicit  substances as well, e.g., cocaine and methamphetamine—based on their personal experience and knowledge. Such testimony is not admitted based on scientific expertise but instead based on the layman's training and experience, for which a predicate establishing a sufficient degree of familiarity is sufficient. See United States v. Walters, 904 F.2d 765, 770 (1st Cir. 1990) (holding that scientific analysis or expert testimony is not required to prove the illicit nature of a substance and proof identifying the substance may be based on the opinion of a knowledgeable lay person); United States v. Paiva, 892 F.2d 148, 157 (1st Cir. 1989) ("Although a drug user may not qualify as an expert, he or she may still be competent, based on past experience and personal knowledge and observation, to express an opinion as a lay witness that a particular substance perceived was cocaine or some other drug."); United States v. Dolan, 544 F.2d 1219, 1221 (4th Cir. 1976) ("[L]ay testimony and circumstantial evidence may be sufficient, without the introduction of an expert chemical analysis, to establish the identity of the substance involved in an alleged narcotics transaction."). 

"evidence may be sufficient, without the introduction of an 
expert chemical analysis, to establish the identity of the 
substance involved in an alleged narcotics transaction"

If it were otherwise, there would be a substantial amount of litigation on this subject in the federal courts and other jurisdictions that adopted Daubert years ago. Tellingly, the contrary is true. The federal courts—which have followed Daubert since 1993—have long allowed lay testimony to identify illicit substances much as the deputy did in this case. See, e.g., United States v. Robinson, 144 F.3d 104, 108 (1st Cir. 1998) ("[P]roof based upon scientific analysis or expert testimony is not required to prove the illicit nature of a substance." (quoting United States v. Valencia-Lucena, 925 F.2d 506, 512 (1st Cir. 1991))); Robinson v. State, 702 A.2d 741, 745 (Md. 1997) (collecting both federal and state cases supporting the proposition that proof of the chemical composition of an alleged controlled substance need not be established only by chemical analysis but instead may be proved by circumstantial or indirect evidence)." 

Florida Law Weekly Case Summary: "Because the Daubert standard regarding the admissibility of expert testimony does not change the long-established rule that lay persons can identify marijuana based on their personal experience and knowledge, the court affirmed. The state laid a sufficient foundation for the deputy's identification of the substance found in his book bag as marijuana based on the deputy's experience and training."

Source: http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2016/May/May%2025,%202016/2D15-1738rh.pdf


What is a Typical Marijuana Possession Case in Florida?



This case is a typical marijuana possession case. L.L., a juvenile, was charged with one count of simple possession of cannabis under Section 893.13(6)(b), Florida Statutes. At the adjudicatory hearing below, the State relied, in part, on the testimony of Officer Joseph Munecas, who offered his opinion that the substance in question was marijuana. Prior to trial, L.L. requested a Daubert hearing to challenge the admissibility of Officer Munecas’s opinion testimony. The judge declined to hold a pre-trial hearing, but agreed to conduct the hearing during the course of the trial. The prosecutor began by laying the foundation for Officer Munecas’s opinion testimony, asking the officer about his field experience and training.



"Officer Munecas also searched L.L.’s vehicle and found a 
rolled cigarette under the front passenger seat. 
At trial, and again over L.L.’s objection,
 the officer identified the item as a marijuana cigarette . . . . ."


The Court noted:

"During cross-examination, counsel for L.L. repeatedly asked Officer Munecas how he was able to identify the substance as marijuana. The officer maintained that his opinion was “just based on my experience and based on my senses.” Counsel pressed the officer further, asking whether his experience-based methodology satisfied any of the traditional Daubert factors. For instance, counsel asked whether Officer Munecas used the scientific method, whether he collected any data to formulate his opinion, whether there were any peer reviewed articles determining the reliability of identifying cannabis by sight and smell, or whether he was aware of the false positive rate regarding his method of identifying the substance. Officer Munecas was unable to answer counsel’s pointed questions beyond asserting that he had seen and smelled marijuana on numerous occasions in the past and therefore was able to identify it when he saw and smelled it on this occasion. The officer finally conceded: “Sir, I am a police officer, I’m not a scientist.”

"Although the trial judge expressed doubts as to whether Officer Munecas’s “testimony is based upon sufficient facts or data[,] is the product of reliable principles and methods, and whether he has applied the reliable principles and methods in this case[,]” the judge ruled that the testimony was admissible . . . . "

How did the Florida Marijuana Appeal  court Rule?


"Officer Munecas had sufficient personal knowledge to support his opinion 
that the substance was marijuana. He testified that he had years of experience identifying marijuana by sight and smell, 
even going so far as to claim marijuana is so predominant 
in the community that he sees it “practically every day.”


Florida Statutes, reads as follows:

90.702 Testimony by experts 

If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion
or otherwise, if:

(1) The testimony is based upon sufficient facts or data;

(2) The testimony is the product of reliable principles and methods; and

(3) The witness has applied the principles and methods reliably to the facts of the case.

One of the Legislature’s stated purposes in amending Section 90.702 was “to adopt the standards for expert testimony in the courts of this state as provided in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), General Electric Co. v. Joiner, 522 U.S. 136 (1997), and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), and to no longer apply the standard in Frye v. United States, 293 F.2d 1013 (D.C. Cir 1923) in the courts of this state.” Ch. 2013-107, Laws of Fla. (Preamble to § 90.702). The Legislature also intended to prohibit the much criticized pure opinion exception to the Frye admissibility standard as provided in Marsh v. Valyou, 977 So. 2d 543 (Fla. 2007). Id.


Five Factors of the Daubert Test of Admissibility in Florida



In Daubert, the Court referenced five factors courts could use to determine the reliability of expert scientific testimony: 

(1) whether the expert’s theory or technique can be (and has been) tested; 
(2) whether the theory or technique has been subjected to peer review and publication; 
(3) the known or potential rate of error; 
(4) the existence and maintenance of standards controlling the technique’s operation; and 
(5) whether the technique has been generally accepted in the relevant scientific community. 

509 U.S. at 593-94. 

The Defense claimed that Officer Munecas’s opinion testimony did not satisfy Daubert’s reliability standard. The State counters by arguing the Daubert factors are “flexible and nonexhaustive.” However, we do not decide this case under Daubert’s expert opinion testimony framework because the admissibility of Officer Munecas’s experience-based testimony is more appropriately analyzed under Section 90.701.


Section 90.701: Lay Opinion Testimony 




We begin with the text of Section 90.701, Florida Statutes:

90.701. Opinion testimony of lay witnesses

If a witness is not testifying as an expert, the witness’s testimony about what he or she perceived may be in the form of inference and opinion when:

(1) The witness cannot readily, and with equal accuracy and adequacy, communicate what he or she has perceived to the trier of fact without testifying in terms of inferences or opinions and the witness's use of inferences or opinions will not mislead the trier of fact to the prejudice of the objecting party; and

(2) The opinions and inferences do not require a special knowledge, skill, experience, or training.

However the Florida court ruled in this case “[a]ll lay witnesses have some specialized knowledge—knowledge relevant to the case that is not common to everyone . . . . Indeed, that is why all witnesses—lay or expert—are called: to get what they know about the case that other people do not.” Paul F. Rothstein, Fed. Rules of Evidence Rule 701 (3d ed.). The text of the Federal Rules offers more guidance than does Section 90.701 because it specifies that lay opinion testimony is not based on “specialized knowledge within the scope of Rule 702.” Fed. R. Evid. 701 (emphasis added). With this in mind, the question is not whether the opinion requires specialized knowledge, as all opinion testimony does, but whether the specialized knowledge is sufficiently specialized to fall within the scope of Section 90.702. See Rothstein, supra, Rule 701.

The Advisory Committee Notes to Rule 701 prove instructive on this point, distinguishing between specialized knowledge within the scope of Rule 702 and personal knowledge: “courts have permitted lay witnesses to testify that a substance appeared to be a narcotic, so long as a foundation of familiarity with the substance is established.” Fed. R. Evid. 701 advisory committee’s note to 2000 amendment. This is because “[s]uch testimony is not based on specialized knowledge within the scope of Rule 702, but rather is based upon a layperson’s personal knowledge.” Id.; see also § 90.604, Fla. Stat. (“Except as evidence is introduced which is sufficient to support a finding that the witness has personal knowledge of the matter.”)

The lay witness may not rely on hearsay in forming an opinion, but the witness may base the opinion on what the witness has perceived.” (citing Somerville v. State, 626 So. 2d 1070 (Fla. 1st DCA 1993))); Barnes v. State, 415 So. 2d 1280, 1283 (Fla. 2d DCA 1982) (“Section 90.701, Florida Statutes (1979), allows opinions of lay witnesses only when based upon what the witness has ‘perceived.’”).

Here, Officer Munecas’s opinion is based solely on his personal, firsthand knowledge and what he perceived. Cf. Daubert, 509 U.S. at 592 (“Unlike an ordinary witness, see Rule 701, an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation.”). For instance, when asked how he was able to identify the “strong smell of marijuana” coming from L.L.’s rolled-down window,

Finally, we hasten to add that although the more demanding Daubert admissibility standard does not apply to lay opinion testimony, there is nevertheless a reliability inquiry. Not only must lay opinion testimony be based on the witness’s personal knowledge, section 90.604, Florida Statutes, and perceptions, section 90.701, Florida Statutes, but the witness must have sufficient personal knowledge to support the opinion. See Imwinkelried, Distinguishing, supra, at 94 (“[T]he judge must determine whether the extent of the witness’s familiarity is ‘sufficient.’”) (quoting Fed. R. Evid. 901(b)(2) (advisory committee’s note)).7 Here, we have no difficulty concluding that Officer Munecas had sufficient personal knowledge to support his opinion that the substance was marijuana. He testified that he had years of experience identifying marijuana by sight and smell, even going so far as to claim marijuana is so predominant in the community that he sees it “practically every day.”

For the reasons outlined above, we conclude the trial court did not abuse its discretion in admitting Officer Munecas’s marijuana identification testimony in this case. Officer Munecas’s testimony was admissible lay opinion testimony under Section 90.701 because it was based on sufficient personal knowledge and his senses of sight and smell, and it was arrived at through a process of everyday reasoning. We therefore affirm the decision of the trial court.

Affirmed.

Third District Court of Appeal State of Florida

Opinion filed April 6, 2016. Not final until disposition of timely filed motion for rehearing.

No. 3D14-2410 Lower Tribunal No. 14-2034

L.L., a juvenile,  Appellant,

vs.

The State of Florida, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Richard Hersch, Judge.


July 14, 2016

Another Florida Drug Dog Sniff Case Overturned

drug sniff, drug sniffing dog, methamphetamine, Drug Crimes,
Drug Conviction Thrown Out - Bad Dog

Here are the facts of the most recent dog sniff case we have seen in Florida.


Officer patrolling with his drug detection dog when driver spotted in a truck with no seatbelt. Driver stopped for seatbelt violation. Cop asked driver to step out of the vehicle. Cops asked for consent to search the truck - denied. The officers then decided to conduct a “free sniff” with the dog. By that time, the information had come back from dispatch on the license and registration. Rather than write the ticket for the seatbelt offense, the officer went back to his car, retrieved the dog and commenced the sniff on the outside of the vehicle. Not surprisingly, dog alerts and meth found.

Why did a Florida Drug Crime Court find a Drug Dog Sniff was Unreasonable?


"the officer had obtained all the necessary information from dispatch and could have started to write the ticket immediately. Instead, he decided to interrupt the traffic stop for the dog sniff."


TEXT OF DRUG DOG SNIFF OPINION


DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LEE JASON UNDERHILL,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D15-1778
[July 13, 2016]


Appellant Lee Underhill appeals his convictions for possession of methamphetamine and use or possession of drug paraphernalia. He contends that the trial court erred in denying his motion to suppress evidence recovered during a traffic stop, because the officer unconstitutionally prolonged the stop by interrupting it to use a drug sniffing dog. Based upon Rodriguez v. United States, 135 S. Ct. 1609 (2015), and Jones v. State, 187 So. 3d 346 (Fla. 4th DCA 2016), we agree that the traffic stop was prolonged and the evidence discovered during the prolonged stop must be suppressed. We reverse the conviction and sentence.

An officer with the Okeechobee Narcotics Task Force was patrolling with his drug detection dog when another team member radioed that appellant had been spotted in a truck and was not wearing his seatbelt. The officer, along with at least one other officer in a separate vehicle, stopped appellant. The officer asked for appellant’s driver’s license and registration, informing appellant that he was being stopped for the seatbelt

2
violation. Appellant seemed nervous and the officer asked appellant to step out of the vehicle. At the same time and while standing beside the truck, the officer called in the license and registration information to dispatch.

While waiting for the information to come back on the license and registration, the officers questioned appellant. They asked for consent to search the truck, which appellant refused. The officers then decided to conduct a “free sniff” with the dog. By that time, the information had come back from dispatch on the license and registration. Rather than write the ticket for the seatbelt offense, the officer went back to his car, retrieved the dog and commenced the sniff on the outside of the vehicle. Within a couple of minutes, the dog alerted on the vehicle. The deputy advised the driver that the dog had alerted, and they were going to search the vehicle. Inside, the dog alerted to a black bag located on the driver’s side floorboard near the transmission hump. The bag contained drug paraphernalia, and appellant was arrested. Later that day, the officers also wrote a traffic citation to appellant for the failure to wear a seatbelt.

The State charged appellant with possession of methamphetamine, and use of, or possession with intent to use, drug paraphernalia. Appellant moved to suppress the evidence, contending that the search of his vehicle was unconstitutional under Rodriguez, 135 S. Ct. at 1612, which was published just prior to the trial of the action. After hearing the testimony of the detectives, the trial court denied the motion, concluding that the use of the dog did not prolong the traffic stop more than the reasonable time it would otherwise take to complete the stop and write the traffic citation. The jury convicted appellant of both charges. The court sentenced appellant, and this appeal follows.

Appellate courts review de novo suppression issues that turn on an issue of law and defer to the trial court on findings of fact which are supported by competent substantial evidence. Connor v. State, 803 So. 2d 598, 605 (Fla. 2001). In this case, the trial court’s analysis was based upon a mistake of law.
We recently decided a case nearly factually identical to this case. In Jones v. State, 187 So. 3d 346, 346 (Fla. 4th DCA 2016), an officer stopped the defendant for failure to wear a seatbelt. He obtained the defendant’s driver’s license and car registration but did not do anything with them. Id. at 347. Instead, he asked for permission to search the vehicle, and when the defendant refused, the officer retrieved his drug dog from his vehicle to perform a dog sniff of the defendant’s vehicle. Id. The dog alerted, and

3

the officer discovered oxycodone pills. Id. Only about three minutes passed from the beginning of the traffic stop until the dog alerted. Id.

In analyzing the effect of Rodriguez on this area of law, our Court explained that:

Prior Supreme Court cases have held that a traffic stop “can become unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission” of issuing a ticket, Caballes, 543 U.S. at 407, 125 S.Ct. 834, and that a seizure is lawful only “so long as [unrelated] inquiries do not measurably extend the duration of the stop.” Arizona v. Johnson, 555 U.S. 323, 333, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009). Rodriguez, however, eliminates any ambiguity about the reasonableness of the time required for the officer to complete a traffic stop. As the Court made clear, “[i]f an officer can complete traffic-based inquiries expeditiously, then that is the amount of ‘time reasonably required to complete [the stop’s] mission.’” Rodriguez, 135 S.Ct. at 1616 (second alteration in original) (quoting Caballes, 543 U.S. at 407, 125 S.Ct. 834). “The critical question, then, is not whether the dog sniff occurs before or after the officer issues a ticket . . . but whether conducting the sniff ‘prolongs’—i.e., adds time to—‘the stop.’ ” IdJones, 187 So. 3d at 347-48. 

In other words, the issue is not, as the trial court thought, what is an objectively reasonable time in which to complete the traffic stop, but whether the dog sniff in this particular stop “adds time to” the stop. Rodriguez, 135 S.Ct. at 1616. In Jones, our Court concluded that the officer had abandoned the purpose of the stop by deciding not to write a ticket but to start the dog sniff. Jones, 187 So. 3d at 348. Therefore, the stop was prolonged beyond what was necessary to accomplish the mission. Id. Likewise, in this case, the officer had obtained all the necessary information from dispatch and could have started to write the ticket immediately. Instead, he decided to interrupt the traffic stop for the dog sniff. Although it was only a short period of time until the dog alerted, under Rodriguez, the sniff unconstitutionally prolonged the completion of the mission of the traffic stop.

Courts across the country have uniformly interpreted Rodriguez as requiring a particularized review of the individual stop to determine, sometimes on a minute-by-minute basis, whether time has been added to the stop through a dog sniff. See, e.g., U.S. v. Evans, 786 F.3d 779 (9th Cir. 2015) (holding officer prolonged traffic stop beyond the time required

4

to complete traffic “mission” but remanding for determination of whether independent reasonable suspicion of criminal activity existed); U.S. v. Williams-Davis, No. 2:14-cr-04072-SRB-1, 2015 WL 6942499 (W.D. Mo. Nov. 10, 2015) (denying motion to suppress where officer had not completed checking identification information at the time the dog alerted to drugs); U.S. v. Kendrick, No. 10–CR–6096–FPG, 2015 WL 2356890 (W.D.N.Y. May 15, 2015) (denying a motion to suppress citing Rodriguez and determining in a minute-to-minute analysis that the stop had not been improperly extended); State v. Warren, 775 S.E. 2d 362 (N.C. Ct. App. 2015) (affirming denial of motion to suppress where dog sniff was performed while a backup officer completed writing out traffic citation). Our conclusion in this case and in Jones is in accord with these cases.

For the foregoing reasons, we reverse the conviction and sentence and remand for further proceedings.
CIKLIN, C.J., and GERBER, J., concur.
* * *

Not final until disposition of timely filed motion for rehearing.

Source: http://www.4dca.org/opinions/July%202016/07-13-16/4D15-1778.op.pdf

July 1, 2016

St Pete Still #Warped Cannabis Arrests at Van's Warped Tour St Petersburg, Florida

#Warped St. Petersburg PD will arrest and send to Pinellas County Jail they are still serious about possession
Warped Tour St Petersburg
Cannabis Arrest
St. Petersburg officials  have toyed with the idea of decriminalization of cannabis. However, we just received notice of at least one arrest and St. Petersburg Police Department officers are taking a hard line on possession of weed at the Van's Warped Tour. 

#Warped St. Petersburg PD will arrest and send to Pinellas County Jail they are still serious about possession  #Cannabis #weed @VansWarpedTour #Norml #CannabisCommunity

I had hoped my years of defending Possession of Marijuana cases in Florida were over - apparently they are not.


June 23, 2016

Growhouse Busted in Winter Haven, Florida - Video From the Inside




Polk County, Florida has one less growhouse after today's bust in Winter Haven, Florida. Forfeiture of the residence is possible.

#cannabiscommunity, #cannabislaws, #marijuana, #norml, Cultivation of Marijuana, Grady Judd, Manufacture of Cannabis, Marijuana Trafficking, trafficking in cannabis,
Polk County, Florida Growhouse 
Here is some video from inside the otherwise unremarkable suburban home, a map of 124 Elliott Ln, Winter Haven, FL 33884 and here is the haul according to the media darling, Grady Judd:



  • 33 pounds of processed marijuana 
  • 300 marijuana plants 
  • 100 bags of cannabis 
  • 2 freezers 
  • $4,600 in purloined electricity over 90 days 
  • $151,000 Bond 

Growhouse Criminal Charges include:


  • Grand theft of a utility 
  • Trafficking and cultivation of cannabis.

Video Inside the Polk County, Florida Growhouse





Here is a Map of the Alleged Polk County Growhouse at 124 Elliott Ln, Winter Haven, FL 33884


 


Sources:

http://www.fox13news.com/news/local-news/164817547-story
http://www.baynews9.com/content/news/baynews9/news/article.html/content/news/articles/bn9/2016/6/23/auburndale_youth_soc.html

May 20, 2016

Is there a marijuana grow house in your neighborhood?

Marijuana Trafficking, Manufacture of Cannabis,  #cannabiscommunity, #cannabislaws, #marijuana, #norml
Hillsborough County, Florida
Another Weed Growing Operation Raided

There Probably IS a marijuana grow house in your neighborhood


Yet another growhouse has been raided in Hillsborough County Florida, This time in Brandon. See the map below for the location. The haul was 350 pounds. Here is a list of charges according to local news and the Hillsborough County Sheriff's Office reports: Trafficking in marijuana, Cultivation of marijuana,Grand theft-electricity, Own/lease/rent for purposes of trafficking,  Possession of drug paraphernalia. According to one source, "So far in 2016, Hillsborough County Sheriff's deputies have shut down 20 marijuana grow operations in the county."

"You can take a look at a few 
other growhouse locations here."

Florida marijuana laws remain tough as noted in a previous marijuana trafficking article we published in January. The drug statute establishes the penalties as first degree felonies when the case involves "in excess of 25 pounds of cannabis, or 300 or more cannabis plants, commits a felony of the first degree, which felony shall be known as “trafficking in cannabis . . . .”

Minimum Mandatory Sentence for Cannabis


Under Florida's tough trafficking law Florida Statute 893.135, Trafficking offenses have mandatory sentences. in this case the grower faces "a mandatory minimum term of imprisonment of 3 years, and the defendant shall be ordered to pay a fine of $25,000."


Map of Latest Alleged Marijuana Growhouse


Below is a map of the calm peaceful location for the latest alleged grow operation. You can take a look at a few other growhouse locations here.





Previously we have discussed some of these Marijuana charges:


DRUG2905 Trafficking in Cannabis 25 to 2,000 Pounds | First Degree Felony ...
www.drug2go.com/2010/09/trafficking-in-cannabis-25-to-2000.html



 Rating: 5 - ‎Review by Google+ User
Jan 15, 2016 - Charge Code DRUG2905 is used by the court system when cases involve Trafficking in Cannabis 25 to 2,000 pounds. The charge is a First ...

DRUG8100 Possession of Drug Paraphernalia

www.drug2go.com/2010/09/drug8100-possession-of-drug.html


 Rating: 5 - ‎Review by Google+ User
Sep 2, 2010 - 893.147 Use, possession, manufacture, delivery, transportation, or advertisement of drug paraphernalia. (1)USE OR POSSESSION OF DRUG ...

Sources:

http://www.baynews9.com/content/news/baynews9/news/article.html/content/news/articles/bn9/2016/5/19/deputies_approximate.html

http://www.hcso.tampa.fl.us/

May 17, 2016

What happens when a suspect throws drugs away and the cops find them?

Drug Crimes, Drug Attorney, pat down, inevitable discovery, abandonment, traffic stop, 4th Amendment, Fourth Amendment, Stop and Frisk
Fourth Amendment Search

What happens when a suspect throws down drugs and the cops later find them?


Where drug crime defendants / suspects throw  drugs under their vehicles while being removed from the vehicle after a valid traffic stop, a court can rule that the suspect has "voluntarily abandoned" the drugs. A Florida Court has just ruled there was reasonable suspicion to justify a pat down where there was a traffic stop, the target appeared nervous, could not answer some of the officer's questions, had made a sudden U-turn into an oncoming traffic lane,  and then parked facing the wrong direction just prior to the stop. The cop testified that the suspect had a pen clenched in his hand and the officer to believed it could be used as a weapon.

"Florida Statutes (2012) (entitled “Stop and Frisk Law”), provides: Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) has probable cause to believe that any person whom the officer has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, the officer may search such person. . . " 

The Court ruled the policeman exceeded the scope of the pat down by searching the suspects sock, the drugs the guy tossed would have been "inevitably discovered" in the search incident to arrest based on the discovery of the drugs that he had abandoned under the vehicle. Defendant loses on the search but won because a problem with selection of jurors.

“Inevitable discovery is a recognized exception to the exclusionary rule and requires the State to establish that “the evidence would have inevitably been discovered in the course of a legitimate investigation.”


Case Excerpts:

"Officer Rosa Olivo was on patrol during the evening of February 3, 2012 when she saw a car with a faded and illegible temporary tag, as well as a tinted film covering the brake lights, making it impossible to determine if the vehicle’s lights were on. Before Officer Olivo could initiate a stop of the car, the driver suddenly turned into the opposite lane of traffic without signaling and parked in the
grassy swale. Officer Olivo activated her lights and siren, exited her car, and began walking toward the car. Cole was the driver and only occupant of the car. As Officer Olivo headed toward Cole’s car, Cole began to exit his car. Officer Olivo told Cole to remain inside. Cole handed Olivo his license and registration, and Officer Olivo described Cole as very nervous, sweating and stuttering. In response to her questions, Cole told Officer Olivo he was going to meet a “good friend” who lived nearby, but when asked, Cole could not provide the friend’s name. Given Cole’s behavior, Officer Olivo requested backup." 

"Officer Lisa Lobello arrived as backup within a few minutes of Officer Olivo’s request. Upon Lobello’s arrival, Officer Olivo returned to her police vehicle to conduct further investigation related to the traffic stop. Officer Lobello engaged in small talk with Cole, who was still seated in his car. Officer Lobello described Cole as looking past her as they spoke, as if he was “visually trying to clear an area.” Cole informed Officer Lobello that he was on parole. Cole was
sweating, bouncing his legs up and down, and looked afraid. Both of his hands were clenched in fists, and he was tightly gripping an ink pen in his right hand. This caused concern for Officer Lobello, who believed that the pen was being held in such a way that it could be used as a weapon. Officer Lobello asked Cole to step out of his car so she could conduct a patdown search. She grabbed his wrist before he stepped out of the car and shook the pen out of his hand, then helped Cole out of the car. While taking him out of the car, Lobello twisted Cole’s arm and turned him around so he was facing away from her and toward his own car. As she turned him around, Officer Lobello saw Cole flick his wrist. Lobello saw dust rising from the dirt ground and believed Cole had thrown something under the car."

“Florida’s stop and frisk law requires “not probable cause but rather a reasonable belief on the part of the officer that a person 5 temporarily detained is armed with a dangerous weapon.” State v. Webb, 398 So. 2d 820, 824 (Fla. 1981); see also J.L. v. State, 727 So. 2d 204 (Fla. 1998). Section 901.151(5), Florida Statutes (2012) (entitled “Stop and Frisk Law”), provides: Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) has probable cause to believe that any person whom the officer has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safety of the officer or any other person, the officer may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If such a search discloses such a weapon or any evidence of a criminal offense it may be seized. The use of the term “probable cause” in the context of a stop and frisk, has been construed to mean “articulable suspicion,” “reasonable belief,” or “founded suspicion.” Webb, 398 So. 2d at 826; Smith v. State, 719 So. 2d 1018, 1022 n. 1 (Fla. 3d DCA 1998). And as the Florida Supreme Court has held, “[a] ‘founded suspicion’ is a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in light of the officer’s knowledge.” Hunter v. State, 660 So. 2d 244, 249 (Fla. 1995). In State v. Cruse, 121 So. 3d 91 (Fla. 3d DCA 2013), this court set forth the factors that may be considered by officers to arrive at a reasonable suspicion that a crime is being or is about to be committed and to support the investigatory stop or detention of a suspect: 6 The time; the day of the week; the location; the physical appearance of the suspect; the behavior of the suspect; the appearance and manner of operation of any vehicle involved; anything incongruous or unusual in the situation as interpreted in the light of the officer’s knowledge. To this list may be added the factor of flight. Cruse, 121 So. 3d at 97-98 (quoting Hernandez v. State, 784 So. 2d 1124, 1126 (Fla. 3d DCA 1999)).”

“Inevitable discovery is a recognized exception to the exclusionary rule and requires the State to establish that “the evidence would have inevitably been discovered in the course of a legitimate investigation.” Moody v. State, 842 So. 2d 754, 759 (Fla. 2003). See also Nix v. Williams, 467 U.S. 431, 444 (1984) (recognizing and adopting the inevitable discovery exception to the exclusionary rule, and holding that the exclusionary rule should not apply if “the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means”). In other words, given the evidence presented, “the case must be in such a posture that the facts already in the possession of the police would have led to this evidence notwithstanding the police misconduct.” Moody, 842 So. 2d at 759.”

Source: Cole v. State, 41 Fla. L. Weekly D970a (Fla. 3rd DCA 2016)



#DrugCrimes #DrugAttorney #PatDown InevitableDiscovery #Abandonment #TrafficStop #4thAmendment, #FourthAmendment #StopFrisk

May 4, 2016

Florida Marijuana Decriminalization - Orlando Florida Cannabis Ordinance

Florida Marijuana Decriminalization, Orlando Florida Cannabis Ordinance
Orlando Florida
Cannabis Ordinance
Here is the text of the proposed city of Orlando marijuana ordinance. It appears that Orlando will be joining Tampa and St. Petersburg in the drive to decriminalize marijuana in Florida. The Orlando marijuana law makes a third offense have a mandatory court appearance.

"Violations are a civil infraction, rather than a crime, 
and are punishable by a $50 fine for the first offense, 
a $100 fine for the second offense, and a mandatory 
court appearance for the third and subsequent offenses. "
ORDINANCE NO. 2016-36
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ORLANDO, FLORIDA, RELATING TO THE POSSESSION OF CANNABIS AND CANNABIS PARAPHERNALIA; CREATING SECTION 43.95, ORLANDO CITY CODE, MAKING POSSESSION OF 20 GRAMS OR LESS OF CANNABIS A CITY CODE VIOLATION; FURTHER MAKING POSSESSION OF CERTAIN DRUG PARAPHERNALIA A CITY CODE VIOLATION; PROVIDING FOR CIVIL PENALTIES; PROVIDING LEGISLATIVE FINDINGS, AND FOR SEVERABILITY, CODIFICATION, CORRECTION OF SCRIVENER'S ERRORS, AND AN EFFECTIVE DATE.
WHEREAS, section 893.13(6)(b), Florida Statutes, makes it a misdemeanor of the first degree to be in actual or constructive possession of 20 grams or less of cannabis (marijuana); and
WHEREAS, section 893.147(1), Florida Statutes, makes it a misdemeanor of the first degree to possess with the intent to use drug paraphernalia as drug paraphernalia is defined at section 893.145, Florida Statutes; and
WHEREAS, the City Council of the City of Orlando, Florida (the "Orlando City Council"), hereby finds that existing criminal penalties for the possession of small amounts of marijuana, and for the possession of drug paraphernalia used to administer marijuana, are often disproportionate to the severity of the offense; and
WHEREAS, the Orlando City Council hereby finds that civil penalties and procedures may be more commensurate with any social harm caused by the possession of small amounts of marijuana or the possession of marijuana paraphernalia; and
WHEREAS, the Orlando City Council hereby finds and declares that this ordinance is in the best interest of the public health, safety, and welfare; and
NOW, THEREFORE, BE IT ENACTED BY THE CITY COUNCIL OF THE CITY OF ORLANDO, FLORIDA, AS FOLLOWS:
SECTION 1. SEC. 43.95, CREATED. Section 43.95, Code of the City of Orlando, Florida, is hereby created to read as follows:

It appears that Orlando will be joining Tampa and St. Petersburg in the drive to decriminalize marijuana in Florida. Florida Marijuana Decriminalization - Orlando Florida Cannabis Ordinance
Florida Marijuana
Decriminalization

Sec. 43.95. - Possession of cannabis or cannabis paraphernalia.

(1) As used in this section, the term: 
a. Cannabis means all parts of any plant of the genus Cannabis, whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant or its seeds or resin. The term does not include "Iow-THC cannabis" and "medical cannabis" as defined by section 381.986. Florida Statutes.


b. Cannabis paraphernalia means any object used. intended for use. or designed for use. in ingesting. inhaling. smoking. or otherwise introducing cannabis into the human body. or any object used. intended for use. or designed for use. in storing. containing. concealing. or transporting cannabis.

(2) It is unlawful and a violation of this Code for any person to possess cannabis paraphernalia or 20 grams or less of cannabis.
(3) A person found in violation of possession of cannabis under subsection (2) may not also be found in violation of possession of cannabis paraphernalia under subsection (2) arising out of the same incident.
(4) Any person violating subsection (2) of this section may be issued a code citation pursuant to Article II. Chapter 5. of this Code. and shall. upon conviction. be punished as provided in Article II. Chapter 5. of this Code.
SECTION 2. SEC. 5.19, AMENDED. Section 5.19, Code of the City of Orlando, Florida, is hereby amended as follows:

Sec. 5.19. -Classes of Violations and Reduced Civil Penalties.

(1) Violations of city codes and ordinances, and the applicable reduced civil penalties, shall be as follows:
Reduced Civil Penalty
Violation Classifications  First Offense   Second Offense      Third and Subsequent Offense
Class I                              $ 50.00             $100.00                   Court Hearing Mandatory

According to the City Council Agenda, "Proposed ordinance #2016-36, relating to the possession of cannabis and cannabis paraphernalia. . . . Proposed ordinance #2016-36 would make possession of 20 grams or less of marijuana or possession of cannabis paraphernalia a city code violation. Violations are a civil infraction, rather than a crime, and are punishable by a $50 fine for the first offense, a $100 fine for the second offense, and a mandatory court appearance for the third and subsequent offenses. Under current state law, possession of 20 grams or less of marijuana (or marijuana paraphernalia) is a first degree misdemeanor punishable by up to 1 year in jail, up to a $1,000 fine, up to 1 year of probation, and a possibly life-long criminal record."    

May 1, 2016

Tampa Cannabis Decriminalized - Complete Text of Tampa Cannabis Ordinance

"Many of the citations issued are on or near major highways, 
leading us to believe they may be associated 
with traffic stops and searches."

UPDATE May 1, 2016

Decriminalization of Cannabis in Tampa has generated some data on where the citations are being issued. We just obtained a map showing the locations of the first batch of citations issued in the new City of Tampa Marijuana Citation law. Many of the citations issued are on or near major highways, leading us to believe they may be associated with traffic stops and searches. The information about each detention for alleged marijuana ordinance violations can be found by clicking on the red pins on the cannabis ordinance violation map.



Map of Tampa Marijuana / Cannabis Citations Issued


The City of Tampa Florida, has just passed an ordinance decriminalizing possession of cannabis (less than 20 grams). Hash oil and derivatives are still felonies. The complete text of the new cannabis ordinance is below. The short version: Fines; For a first offense $75.00; For a second offense $150.00; For a third offense $300.00; For a fourth or subsequent offense $450.00.

UPDATE April 8, 2016

Tampa Bay area law enforcement and the Hillsborough County State Attorney's Office have notified at least one media source that arrests and prosecutions for cannabis will continue for those arrested by anyone other than the Tampa Police Department. So, for example a fan arrested at Tampa Stadium by a Hillsborough County Sheriff or a Florida Highway Patrol State Trooper will still be prosecuted, even though the stadium is inside the Tampa City Limits.

UPDATE April 1, 2016

Today the new law takes effect. But, Tampa Police Department Attorney Kirby Rainsberger says that civil citations will be issued ONLY when the suspect is not a minor; there are no other criminal charges; suspect can be released on own recognizance; and the suspect has no unpaid fines. Check out The Tampa Tribune Marijuana story here. The Mayor of Tampa's comments and a History of the Marijuana Ordinance is here.

 "doesn't make us any less anti-drug, but it's a realization 
that the penalties that have been imposed have done 
more damage to the trajectories of young peoples' 
lives than the offenses have warranted."

Mayor Bob Buckhorn

Why Didn't Tampa Repeal Its Marijuana Forfeiture Law?


Tampa did not change its forfeiture ordinance, so expect police to be financially motivated to continue misdemeanor marijuana busts. The City council did not repeal Tampa City Ordinance 14-30. The Tampa law provides that it is a violation of this section and a motor vehicle shall be subject to impoundment whenever the vehicle was used, intended, or attempted to be used to facilitate the commission or attempted commission of any misdemeanor violation of F.S. Ch. 893 (Florida's Drug Law). See Video at the bottom of this article.

Tampa Remains the King of Marijuana Forfeitures


One media source has reported "No law enforcement agency in West/Central Florida seizes more vehicles under Florida's Contraband Forfeiture Act than the Tampa Police Department. And half of the 1,500 vehicles it seizes annually are either kept for agency use or turned into cash, either through settlements with the original owner or through sale at auction." The source reported "Tampa city ordinance 14-30 sets a flat $500 fee to get a vehicle back after a misdemeanor arrest, regardless of what happens to the charges. The city reports collecting the fee more than 500 times last year."

Tampa Cannabis Decriminalized, Tampa Cannabis Ordinance
Tampa Cannabis Decriminalized
Complete Text of Tampa Cannabis Ordinance


ORDINANCE NO. 2016-__

AN ORDINANCE OF THE CITY OF TAMPA, FLORIDA, CREATING TAMPA CODE SECTION 14-62 MAKING POSSESSION OF TWENTY GRAMS OR LESS OF CANNABIS UNLAWFUL, MAKING POSSESSION OF DRUG PARAPHERNALIA AS DEFINED HEREIN UNLAWFUL, PROVIDING FOR CIVIL PENALTIES, AMENDING TAMPA CODE SECTION 23.5-5 TO SPECIFY THE AMOUNT OF CIVIL FINE FOR VIOLATION, AND PROVIDING AN EFFECTIVE DATE. 

WHEREAS, Florida Statute Subsection 893.13(6)(b) provides that the possession of twenty (20) grams or less of cannabis (marijuana), intended only for consumption of the possessor, is a misdemeanor criminal offense; and

WHEREAS. Florida Statute Subsection 893.147(1) provides that the possession of
drug paraphernalia as defined in Florida Statute Section 893.145 is a misdemeanor criminal offense; and

WHEREAS, the Tampa City Council finds that particularly where the citizen's only
known offense at the time of arrest is possession for personal use of a small amount of cannabis, or paraphernalia for administration thereof, criminal penalties and potentially lifelong criminal record are disproportionate to the severity of the offense; and

WHEREAS, the Tampa City Council finds that established civil penalties and
procedures are more commensurate with the offense of possession of twenty grams or less of cannabis or paraphernalia when that is the only chargeable offense.

NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF TAMPA, FLORIDA:

Section 1. That Tampa Code Section 14-62 is hereby created to read in its entirety as follows:


Sec. 14-62. Possession of cannabis or paraphernalia.


(a) Definitions.

(1)  Cannabis means all parts of any plant of the genus Cannabis, whether growing or not and the seeds thereof. The tern does not include the resin or oil extracted from any part of the plant or "'low-THC cannabis" as defined in Florida Statute § 381.986 if manufactured, possessed. sold, purchased, delivered, distributed, and dispensed in conformance with § 381.986.

(2)  Paraphernalia means any object used, intended for use, or designed for use, in ingesting, inhaling, smoking, or otherwise introducing cannabis into the human body.

(b)  Any person who possesses twenty (20) grams or less of cannabis as defined herein except as otherwise authorized by law commits a violation of this subsection.

(c)  Any person who possesses paraphernalia as defined herein except as otherwise authorized by law commits a violation of this subsection.

(d)  A person charged with possession of cannabis under subsection (b) may not be charged with possession of paraphernalia under subsection (e) arising out of the same incident.

(e)  Penalties and Procedure


(1)  The provisions of Tampa Code Chapter 23.5 shall apply to all violations charged pursuant to this section.

(2)  Violation of this section is deemed to be an irreparable or irreversible violation punishable by civil penalty as a Class I offense.

(3)  If the applicable civil penalty is not paid within 30 days from the citation date, in addition to the procedure provided in Tampa Code Chapter 23.5 in the event of such nonpayment, the defendant will no longer be eligible for the alternative enforcement procedures provided by this section.

Section 2. That Tampa Code subsection 23.5-4(e) is hereby amended as follows:

(f)  After issuing a citation to an alleged violator, a code enforcement officer shall deposit the original and one (1) copy of the citation with the  City Attorney's Office. If the citation is not paid within thirty (30) days of the date of issuance. the City Attorney's Office shall forward the original and one (1) copy of the citation to the county court.

Section 3. That Tampa Code Subsection 23.5-5(a) is hereby amended by adding the underlined part as follows:

Sec. 23.5-5 Schedule of violations and penalties.



(a)  Violations of the following sections of the Tampa City Code are considered Class I violations and will carry a fine of:

For a first offense $75.00
For a second offense $150.00
For a third offense $300.00
For a  fourth or subsequent offense $450.00


Sources:

Tampa, Florida Marijuana Cannabis Ordinance
https://atg.tampagov.net/sirepub/meetresults.aspx?meettype=Council%20Regular&cscRedirectID=497
http://legacy.wtsp.com/story/news/investigations/2014/11/25/policing-for-profit-tampa-police-seizures/70096900/
http://www.tampagov.net/sites/default/files/planning/files/supp_81/supp_81_ch14_9_10_13.pdfbr /> http://www.tampagov.net/