Medical Marijuana, Odor of Cannabis, and Traffic Stops

Is the odor of burnt marijuana probable cause to search a vehicle?


Odor of Cannabis Shenanigans Case - Motion to suppress evidence denied where weed discovered in defendant's vehicle during a traffic stop after law enforcement detected the odor of burnt marijuana. Court calls shenanigans on argument that because the state has medical marijuana, the smell of weed coming from a vehicle no longer provides law enforcement with probable cause to conduct search without warrant. Was reasonable for an officer to conclude that defendant smelling of marijuana, was acting unlawfully says Florida DCA.

Map of Florida Cities With Cannabis Civil Citation Programs

Complete Opinion is here:

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D18-4325
_____________________________
JORDAN JOHNSON,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Leon County.
Robert E. Long, Judge.
July 9, 2019
PER CURIAM.

Jordan Johnson appeals his conviction for carrying a
concealed weapon. His only argument on appeal is that the trial
court should have granted his motion to suppress. We reject this
argument and affirm.

Officers initiated a 2:00 a.m. traffic stop after noticing a
headlight out on Johnson’s car. Officers then smelled burnt
marijuana, detained Johnson, and searched the car. Inside the car,
they found the gun that led to the charge.

On appeal, Johnson acknowledges “the long line of cases that
hold that the smell of burnt marijuana coming from a vehicle
provides an officer with probable cause to detain the defendant and
conduct a warrantless search.” Init. Br. at 8 (citing State v. T.P.,

2

835 So. 2d 1277 (Fla 4th DCA 2003); State v. Williams, 967 So. 2d
941 (Fla. 1st DCA 2007); State v. Jennings, 968 So. 2d 694 (Fla.
4th DCA 2007)); see also State v. Betz, 815 So. 2d 627, 633 (Fla.
2002) (“As the odor of previously burnt marijuana certainly
warranted a belief that an offense had been committed, this
unquestionably provided the police officers on the scene probable
cause to search the passenger compartment of the respondent’s
vehicle.”). But, he contends, those cases became irrelevant after
Florida authorized medical marijuana. In other words, he argues,
while the officer’s “search based on the odor of marijuana was
constitutional prior to the enactment of [§ 381.986, Fla. Stat.], now
that medical marijuana is legal, it is no longer a sufficient basis for
probable cause.” Init. Br. at 7. He does not argue that he is a
medical-marijuana user; his argument is that the smell alone is no
longer enough since someone might be a medical-marijuana user.

There are several problems with this argument. First, as the
State notes, at the time of the stop, Florida’s medical-marijuana
laws did not authorize smokable marijuana, see § 381.986(1)(j)(2),
Fla. Stat. (2017) (excluding from “medical use” the “use, or
administration of marijuana in a form for smoking”), and the
officers smelled burnt marijuana. Second, Florida law did not
allow use in “a vehicle” other than “for low-THC cannabis.” Id.
§ 381.986(1)(j)(5)(b). Third, although Florida law does not
criminalize all use of medical marijuana, possession of marijuana
remains a crime under federal law. See 21 U.S.C. § 812(c); see also
Gonzales v. Raich, 545 U.S. 1, 27 (2005) (noting that federal
controlled substance act “designates marijuana as contraband for
any purpose; in fact, by characterizing marijuana as a Schedule I
drug, Congress expressly found that the drug has no acceptable
medical uses”). Fourth, even if smoking marijuana were legal
altogether, the officers would have had probable cause based on
the fact that Johnson was operating a car. See § 316.193(1)(a), Fla.
Stat. (criminalizing driving under the influence of drugs).

Finally, even putting all of this aside, the possibility that a
driver might be a medical-marijuana user would not automatically
defeat probable cause. The probable cause standard, after all, is a
“practical and common-sensical standard.” Florida v. Harris, 568
U.S. 237, 244 (2013). It is enough if there is “the kind of ‘fair
probability’ on which ‘reasonable and prudent people, not legal

3

technicians, act.” Id. (some marks omitted). Here, we cannot say
that it would be unreasonable for an officer to conclude there is a
fair probability that someone driving around at 2:00 a.m., smelling
of marijuana, is acting unlawfully. And this is true whether or not
Florida law allows the medical use of marijuana in some
circumstances.

In short, Johnson has not shown that the trial court’s order
denying suppression—an order that comes to us “clothed with a
presumption of correctness,” Terry v. State, 668 So. 2d 954, 958
(Fla.1996)—was wrong.

AFFIRMED.
WETHERELL, WINOKUR, and M.K. THOMAS, JJ., concur.
_____________________________
Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
_____________________________
Andy Thomas, Public Defender, and Megan Long, Assistant Public
Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Damaris E. Reynolds and
Jennifer J. Moore, Assistant Attorneys General, Tallahassee, for
Appellee.

Grow House Video of the Day - Underground Growhouse

Florida Grow House Defense Attorney presents this rather unusual underground growhouse. We recall there was an underground grow house bust in Tampa, Florida, but this video is from Levy County, Florida near Gainesville, Florida.



Grow House Busted? Call a Board Certified Criminal Defense Expert Toll Free 1-877-793-9290 .



Video From Inside a Legal Florida Medical Marijuana Growhouse

Florida Medical Marijuana Growhouse Video


Video From Inside a Legal Florida Medical Marijuana Growhouse





Video From Inside a Legal Florida Medical Marijuana Growhouse



We have just obtained Video From Inside a Legal Florida Medical Marijuana Growhouse near Tallahassee, Florida.

Map of Medical Marijuana Dispensary in Tampa, Florida



We have also uncovered the location of one of Florida'a first retail locations for dispensing Medical marijuana. They will dispense Calming CBD Oil with natural almond and mint extracts, Calming CBD Spray with natural Florida orange extract, and Calming Topical Lotion with natural lavender & eucalyptus extract. It is operated by Surterra. The video above was shot at a Surterra growhouse. Here is the location of the Surterra Wellness Center homeopathic pharmacy we found at  2558 E Fowler Ave, Tampa, FL 33612.








Surterra Wellness Center
2558 E Fowler Ave, Tampa, FL 33612



Source: https://www.tallahassee.com/story/news/2016/12/21/state-awards-another-marijuana-license/95710386/


Previous Growhouse Videos

Here are links to our previous growhouse videos. Here is a page that has more maps and videos of marijuana growing operations.


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

www.drug2go.com/2016/06/growhouse-busted-in-winter-haven-florida.html

 Rating: 5 - ‎Review by Google+ User
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 ...

Grow House Video of the Day - Underground Growhouse

www.drug2go.com/2011/02/grow-house-video-of-day-underground.html

 Rating: 5 - ‎Review by Google+ User
Feb 22, 2011 - We recall there was an underground grow house bust in Tampa, Florida, but this video is from Levy County, Florida near Gainesville, Florida.

Typical Drug Bust Story

 Drug Crimes Possession and Distribution Drugs / Marijuana in State or Federal Court

Drug Crimes Possession and Distribution Drugs / Marijuana in State or Federal Court

Stories of Typical Drug Busts


Frequently, we see drug busts for drug crimes when police conduct a simple traffic stop. Sometimes narcotics squads obtain a search warrant based upon someone tattling to the police. Sometimes they are using a confidential informant. However it happens the results are terrifyingly similar. A suspect is nabbed and taken to jail. Their photo is posted all over the internet and tons of junk mail arrives claiming an attorney can help. If a vehicle or real estate was involved, the county may seek forfeiture of the property. That must be addressed immediately, as the property can be taken, even though you have not been convicted!

"Sometimes we find misconduct by the police, their
informants, or the technicians at the drug crime lab"

Within a month or so there will be a court appearance required. Florida has open court rooms. The media or an employer or friends may learn about the case. A discrete defense is needed early. Florida is unique in that although there has been an arrest, an Assistant State Attorney reviews each case before the actual charges are filed. Here is where an early intervention be your cannabis lawyer / representative can help. Prosecutors often do not know all the facts and circumstances surrounding an arrest. Your lawyer can reach out to them and explain the situation in a way that will be far more favorable than the cold reading of a report written by the police who want to see the suspect end up with a criminal record for possession of cannabis.

If formal charges are filed anyway, a competent drug defense attorney will file a notice to the court and the prosecutor that the suspect is represented. Our office files a three page request demanding all witness identities, police reports, laboratory tests, video recordings, and audio recordings. we will send those reports to the client and carefully review them for signs of a defense. Sometimes we find misconduct by the police, their informants, or the technicians at the drug crime lab.

No Prior Drug Charges?


Many people have no prior record or are busted for small quantities. In those cases we can convince the State Attorney to consider dismissal of the charges. We take an active approach to show that those under arrest for drug charges are not always the criminal that police have suggested they are.
W.F. ''Casey'' Ebsary often helps those charged with Drug Crimes including possession and distribution of drugs in both State and Federal Court. Casey has also defended importation and international conspiracy charges involving literally tons of cocaine smuggled in an unmanned submarine, that case concluded at the United States Supreme Court. As a former drug crime prosecutor in Tampa, Florida, I have experience from both sides of the courtroom.




Casey knows the tactics and training of the police and prosecutors. He was also a prosecutor in the then newly-formed Drug Court System. Casey knows how to help in Motions to Suppress illegally-obtained evidence, in jury trials of these types of charges, and if appropriate can help avoid conviction through diversion programs like the Drug Court.

Marijuana Cannabis Attorney | NORML Legal Committee
Marijuana Attorney | NORML Legal Committee




 We Can Help with Drug Crimes



Your arrest and prosecution for possession of marijuana is serious. You need a Tampa Criminal Defense Attorney experienced in defending cannabis cases, contact WF Ebsary, Jr at 1-877-793-9290 today for FREE to discuss fighting your marijuana charges throughout the greater Tampa Bay area including Hillsborough County, Pasco County, Pinellas County, Florida. A marijuana conviction (or any drug offense) can result in an immediate two (2) year suspension of your driver's license. Even when the crime was not driving related.

When drug charges are made in State or Federal Courts, we can provide a solution. Call us today at 1-877-793-9290 for a free initial consultation. If it is more convenient for you, we respond quickly to your call for help via our Call For Help web submission. They are sent to us wirelessly. We are constantly checking and responding, and will quickly get back to you via telephone or email. Drug charges can be disastrous to have on your record. 

A drug crimes defense lawyer in Hillsborough County, Florida and Board Certified Criminal Trial Attorney in Florida can defend you against drug charges. Casey is experienced and available to defend against these charges: Marijuana, cocaine, prescription, and other drug charges that can be dropped. Tampa Bay area drug defense lawyer W. F. ''Casey'' Ebsary has experience and training as both a Hillsborough Drug Crimes Assistant State Attorney, who is now on the defense side helping people navigate treacherous waters when drug charges are at hand.

More Information on Marijuana and Cannabis Drug Crimes in Florida


 

Marijuana - Drug Attorney Tampa Lawyer on Call 24/7/365 ...

www.drug2go.com/p/marijuana-defense.html

In Florida, Marijuana charges can be a disastrous charge to have on your record. A Board Certified Criminal Trial Lawyer in Hillsborough Tampa Florida , can be ...

 

Having a Couple of Marijuana plants in your Florida backyard ...

www.drug2go.com/2015/05/marijuana-grow-backyard.html

Marijuana Grow Conviction Overturned - Knock and Talk. Motion To Suppress ... defendant's actions in answering questions and producing bag of marijuana for officers were not voluntary.

 

Free Florida Drug Crimes Information Search

Search Casey's Database

Help is available for oxycodone, morphine, methadone, amphetamines, hydrocodone, xanax, and other types of prescription medication problems

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: Civil citations for marijuana-related violations





Map of Tampa Marijuana / Cannabis Citations Issued

"arrests and prosecutions for cannabis will continue"

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. Beyond that, cops still have the power to forfeit a vehicle used during the commission of cannabis offenses.

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/

Tampa Police Easy on #Cannabis at #Gasparilla?

Are Tampa Police Easy on #Cannabis at #Gasparilla?

2019 Drug Crimes Arrests

ZERO



Felony Arrests

1 Domestic Battery
2 Battery on a law enforcement officer
2 Criminal mischief

Misdemeanor Arrests

1 Obstruct Oppose w/o Violence
2 Minor Possession Alcohol
3 Disorderly Conduct

Video - Tampa Police and Cannabis Arrests




What are Tampa Police Doing About Marijuana Possession?


I'm driving down Bayshore Boulevard scene of the largest party in the State of Florida, the Gasparilla pirate fest. There were hundreds, if not thousands, of police out here and there wasn't a single arrest for cannabis; or for that matter for any drug crime.

So answer the question, "What are Tampa police doing about marijuana and arresting for marijuana?" I would say this year's festival would establish that they are doing nothing about marijuana criminally.

But, there is a civil citation program where they can issue a ticket for possession of marijuana. For more details:

https://go2attorney.com/2019/01/17/staying-safe-and-festive-at-gasparilla-arrest-criminal-defense/

Drug Crimes Defense - Tampa Board Certified - 813-222-2220

Drug Crimes Lawyer Tampa

Drug Crimes Lawyer Tampa



"Free Phone Consultation directly with a Board Certified Criminal Trial Lawyer"


Casey Ebsary is a Board Certified Trial Lawyer with diverse criminal litigation experience in drug cases.

813-222-2220


Fast, Easy, and Free Phone Consultation directly with a Board Certified Criminal Trial Lawyer.  I will personally speak to you about your charges.

Conveniently Located: Tampa, Florida 

Law Office of W.F. ''Casey'' Ebsary Jr
2102 W Cleveland St
Tampa, Florida 33606
(813) 222-2220
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Violation of Probation in Tampa Bay, Florida - New 1 Minute Video

Violation of Probation in Tampa Bay, Florida
Violation of Probation in Tampa Bay, Florida

Violation of probation cases are usually handled by the judge or in the division that the case was originally heard. Many of these cases can be resolved by trying to complete the conditions of probation before a court date.

Violation of Probation for Drug Cases in Tampa Bay, Florida


If a case can be handled before a warrant is issued, then jail may be avoided. Many of the judges in both felony and misdemeanor cases issue warrants for violating probation without a bond. That means that you will stay in jail until a court date is set.

In this 1 minute video, Casey Ebsary notes that if you have been charged with Probation Violation, Violation of Probation, or VOP in Florida, a Tampa Criminal Defense Attorney can and will protect your rights. Some Florida circuit courts have special divisions that handle violation of probation allegations.



Drug Treatment for Probation Violation


A Tampa Drug Lawyer noted that a celebrity returned to a California to continue her drug rehabilitation. A judge had ordered her to enter drug treatment. She had previously filmed the VH-1 reality show "Celebrity Rehab with Dr. Drew."

Tampa Hillsborough County, Florida Circuit Judge Daniel Perry asked Florida probation officials contact California probation officials. Treatment was ordered late last year. Hillsborough County and Tampa Bay Area Judges are more and more inclined to offer drug treatment instead of jail.

Tampa Drug Lawyer for Violation of Probation


Often a probation violation comes when the highly technical conditions of probation have been violated. We can and help. Sometimes, violation of probation can occur for being arrested for a new charge. We may be able to help there also. We want to prevent or minimize time spent in jail. Video Courtesy CentralLaw.com - Probation Violation

Violation of Probation? Call Today For a Free Phone Consultation 1-877-793-9290 .

Federal Violation of Supervised Release


Federal Violation of Supervised Release
Casey is available to help in federal violation defense
matters by contacting him Toll Free 1-877-793-9290.


Sentencing guidelines apply in federal cases where United States district court judges are deciding what to do about alleged violations of conditions after sentencing in a federal case. These judges have much discretion. Although they use the United States sentencing guidelines as an advisory, but not mandatory, resource to decide what, if anything should be done when our federal clients are before the court.

In a strongly worded and important per curiam summary reversal today, the Supreme Court reaffirmed its holding in Kimbrough that "district courts are entitled to reject and vary categorically from the crack-cocaine Guidelines based on a policy disagreement with those Guidelines." 

In Spears v. United States, __ S.Ct. __, 2009 WL 129044 (Jan. 21, 2008), the Court explained what Kimbrough meant:

[E]ven when a particular defendant in a crack cocaine case presents no special mitigating circumstances – no outstanding service to country or community, no unusually disadvantaged childhood, no overstated criminal history score, no post-offense rehabilitation – a sentencing court may nonetheless vary downward from the advisory guideline range. The court may do so based solely on its view that the 100-to-1 ratio embodied in the sentencing guidelines for the treatment of crack cocaine versus powder cocaine creates "an unwarranted disparity within the meaning of § 3553(a)" and is "at odds with § 3553(a)." The only fact necessary to justify such a variance is the sentencing court's disagreement with the guidelines – its policy view that the 100-to-1 ratio creates an unwarranted disparity.

See Spears, __ S.Ct. at __, 2009 WL 129044 at *2 (quoting United States v. Spears, 533 F.3d 715, 719 (8th Cir. 2008) (Colloton, J., dissenting)).

Spears is the latest indication that the Supreme Court is running out of patience with appellate courts and government arguments that attempt to artificially narrow judicial discretion post-Booker. Use Spears in any case involving a guideline that does not exemplify the Commission's characteristic institutional role – meaning any guideline that was not the product of (1) reliance on empirical evidence of pre-guidelines sentencing practice, or (2) review and revision in light of judicial decisions, sentencing data, and comments from participants and experts in the field.

These would include the following guidelines, among others:

  • Career offender
  • Child pornography and other sex offenses
  • Drugs
  • Economic crimes
  • Firearms
  • Immigration
  • Limitations on the availability of probation or other alternatives to
  • Incarceration
  • Relevant Conduct

For violation of supervised release sample briefs, litigation strategy memoranda and further resources on how to raise these attacks, click  "Deconstructing the Guidelines