CRIMINAL JURISDICTION

Criminal Law Blog by Defense Lawyer John Floyd and Mr. Billy Sinclair

March 17, 2010

CAN THE SMELL OF POT LEAD TO WARRANTLESS ARREST?

Filed under: Drug Defense Attorney — Tags: , , , — johntfloyd @ 1:23 am

Odor of Burnt Marijuana, alone, may be sufficient for a warrantless entry but insufficient to establish probable cause for a specific arrest.

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Some defense attorneys—and not without a legitimate basis—mistakenly believe that if a police officer detects the odor of marijuana inside a residence, the officer does not have probable cause to enter the residence and arrest the suspected owner of the drug without a warrant. This belief can be traced to a 2002 decision by the Texas Court of Criminal Appeals in State v. Steelman which held that “the detection of the odor of marijuana in a certain place will not inevitably provide probable cause to arrest a person who is at that place.” 1/

Lubbock attorneys Chuck Lanehart and Ralph H. Brock argued the Court of Criminal Appeals (“CCA”) had established a blanket rule, or at least the impression of a blanket rule, in Steelman so they filed a motion to suppress evidence seized from their client, Christopher Chad Parker, on the night of April 2, 2001. A local resident named Ms. Vangie Leal had informed two Lubbock police officers named Ralph Sanchez and Rodney Stevens that night at a local convenience store about alcohol allegedly being served to minors at a nearby residence. Acting on this information, which they believed to be reliable, officers Sanchez and Stevens drove to the nearby two-story house where they saw several vehicles parked outside but no unusual activity. Then Sanchez spotted someone parting the blinds inside the residence and heard someone say, “it’s the police.” 2/

Sanchez and Stevens believed these actions warranted further investigation. They approached the residence and knocked. Christopher Parker opened the door. Officer Stevens saw what appeared to be a juvenile run up the stairs and recognized him from previous minor encounters the officer had with the juvenile. Stevens also immediately smelled the odor of burnt marijuana. He informed Parker that he and officer Sanchez were there to investigate a report of “kids drinking alcohol.” Stevens also told Parker the two officers would have to enter the residence because of the smell of marijuana. Parker allowed the officers inside the residence. 3/

Stevens and Sanchez gathered all the occupants of the residence into the living room. Stevens went to find the person he had seen running up the stairs and in the process found Parker’s mother sleeping. The officer asked her to join everyone in the living room. A short time thereafter two police supervisors arrived. Just as one of the supervisors was asking Parker’s mother for consent to search the residence, officer Stevens saw a marijuana cigarette butt and some loose marijuana in plain sight on top of a pizza box in the living room. While the mother consented to a search of the residence, the marijuana had been already spotted and seized before she actually consented. 4/

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March 5, 2010

BIG BROTHER’S WATCHING!

Filed under: Drug Defense Attorney — Tags: , , , , — johntfloyd @ 3:02 am

Law Enforcement Seeks Cell Phone Surveillance in Continued War on Crime; But Who’s Watching Them?  …Federal Judges

In an article titled “The Snitch In Your Pocket,” Newsweek Magazine (March 1, 2010) reported that in recent years Federal prosecutors have been “seeking what seemed to be unusually sensitive records, internal data from telecommunications companies that showed the locations of their customers’ cell phones—sometimes in real time, sometimes after the fact.” The prosecutors justified their pursuit of this individualized personal information “to trace the movements of suspected drug traffickers, human smugglers, even corrupt public officials” through their cell phones.

These Federal prosecutors have been using the Stored Communications Act, 18 U.S.C. § 2703(d), to get Federal magistrates to issue what’s called “2703(d)” orders which allows prosecutors intrusive access into the private lives of this nation’s citizens. Federal prosecutors prefer using the Stored Communications Act over the more stringent Pen Registers Act, 18 U.S.C. § 3121, which requires them to support their court order requests with an affidavit articulating the probable cause necessary for law enforcement officials to install any sort of tracking device on cell phones.

But Newsweek reported that “the FBI and other law enforcement outfits have been obtaining more and more records of cell-phone locations—without notifying the targets or getting judicial warrants establishing ‘probable cause,’ according to law enforcement officials, court records and telecommunication executives.”

While these Orwellian law enforcement types have historically gone after private information such as e-mails, bank records, and credit card transactions, they have more recently made “cell-phone tracking” their sport of choice in the individual privacy snooping game. Cell-phone tracking allows these “covert operations” specialists to track the movements of not only those they suspect of criminal wrongdoing but also of those who may simply pose a non-criminal point of interest to them. Jack Killorin, who heads a Federal task force in Atlanta, told Newsweek that “cell-phone records have helped his agents crack many cases, such as the brutal slaying of a DeKalb County sheriff; agents got the cell-phone records of key suspects—and then showed that they were all within a one-mile area of the murder at the time it occurred, he said. In the fall of 2008, Killorin says, his agents were able to follow a Mexican drug cartel truck carrying 2,200 kilograms of cocaine by watching the real time as the driver’s cell phone ‘shook hands’ with each cell-phone tower it passed on the highway. ‘It’s a tremendous investigative tool,’ says Killorin. And not that unusual: ‘This is pretty workday stuff for us.”

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February 11, 2010

MICHAEL JACKSONS DOCTOR CHARGED WITH INVOLUNTARY MANSLAUGHTER

Filed under: Drug Defense Attorney — Tags: , , , , — johntfloyd @ 7:06 pm

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair.

How do you save someone determined to destroy himself?

That question will surely be in the mind of most jurors who will ultimately decide the personal and professional fate of Dr. Conrad Murray, a Houston cardiologist, who was formally charged on February 8, 2010 with involuntary manslaughter in Los Angeles in connection with Michael Jackson’s death. Murray was the superstar’s personal physician last June when he administered the powerful anesthetic propofol and two sedatives to help Jackson, a renowned insomniac, get some sleep. The sleep aids put the pop singer to sleep permanently.

Michael Jackson was an exceedingly complex individual. His life was a tragic chronicle of drug use and abuse. He did things to his own life (and to the lives of others) that would have destroyed most other mere mortals. Despite a host of admirable personal qualities and an immeasurable amount of professional talent, he was a living portrait of self-destruction. He had been warned on several occasions about the dangers of using propofol. It is one of the most powerful and dangerous drugs that can be administered to the human body outside a very tightly-controlled medical environment. Jackson was still willing to risk his life on a regular basis by taking the drug because it helped him sleep when, in actuality, it didn’t help him sleep; it simply rendered him unconscious.

Dr. Conrad Murray was born to a poor single mother nearly 57 years ago in Grenada, a small Caribbean island made famous by former President Ronald Reagan’s military invasion of it in 1983 called Operation Urgent Fury. He lived with his grandparents on the island until he was seven when his mother returned and took him with her to Trinidad where she had gone shortly after the boy’s birth in search of work. Despite being reared in a drug-infested and crime-plagued area of Port of Spain, Trinidad’s capital, young Murray resisted all the temptations of crime and drugs to become well-known as an honest and responsible person in the neighborhood.

Citing the British tabloid, The Daily Mall, the Houston Chronicle reported recently that as a young boy Murray went into a store where he found a woman had left her bag. He took the bag and after he got home, the young boy found it contained $3100. He searched for and found the owner of the bag and returned the money to her, according former neighbor Krishndath Saroop. Murray went on to graduate from high school on the small island after which he worked hard at a number of jobs, including an elementary school teacher, before saving enough money to pay for his education in the United States.

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December 23, 2009

EXTRANEOUS OFFENSE EVIDENCE IN FEDERAL COURT

Filed under: Drug Defense Attorney — Tags: , , , — johntfloyd @ 6:30 am

Probative or Prejudicial:  Evidence of Previous Drug Convictions Admitted to Show Proof of Intent in Drug Case

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

We have written recently about the dangers of the use of extraneous offense evidence at the state trial level; specifically, that the Texas Court of Criminal Appeals has virtually eliminated the availability of any defense in sexual assault cases, particularly those involving a child, when the State has in its possession extraneous offense evidence and the defendant wished to avoid its admission in court. The Fifth Circuit Court of Appeals recently confronted and outlined the parameters of extraneous offense evidence at the federal trial level.

The case involved John Matthew Cockrell who was convicted of conspiracy to possess and intent to distribute heroin resulting in bodily injury in violation of Title 21, Section 846, of the Federal Criminal Code. The Cockrell case began in 2006 when the Plano Police Department informed the FBI’s High Drug Trafficking Area about several heroin drug overdoses in Collin County, some of which were fatal. The FBI soon determined that Cockrell was the local heroin dealer behind the drug overdoses.

The federal investigation produced two co-conspirators who agreed to cooperate with the government. They testified at Cockrell’s conspiracy trial, telling the jury they bought drugs from Cockrell during a two-year span between 2005 and 2007. One of the co-conspirators told the jury that she initially bought methamphetamines from Cockrell but later switched to heroin with two or three buys a week. Prosecutors also presented the following evidence:

  • Witnesses testified they saw balloon-packaged heroin inside Cockrell’s apartment, car, and that he distributed the heroin to other dealers as well as customers.
  • Other witnesses testified they joined with Cockrell in purchasing large quantities of heroin both for their own personal use and distribution as well.
  • Two witnesses testified they overdosed on heroin supplied by Cockrell and required emergency room treatment. Their testimony was corroborated by treating paramedics and ambulance records. 1

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August 15, 2009

TRIAL OBJECTIONS MUST BE CLEAR AND PRECISE

Filed under: Drug Defense Attorney — Tags: , , , — johntfloyd @ 2:49 pm

Court of Criminal Appeals of Texas Finds Lawyer’s Careful and Repeated Objections did not Preserve Error

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

Criminal trials are governed by strict rules of evidence and procedures. It is the duty of a defense attorney to not only know but understand these rules and procedures precisely. We have written several times in the past about the harm caused by a defense attorney’s inadvertent failure to make specific, timely and properly lodged objections during the course of a criminal trial. The Texas Court of Criminal Appeals recently delivered that same unreasonable message once again and in no uncertain terms.

The case involved Luis Pena who, in 1998, was charged with possession of marijuana seized during a traffic stop. He was put on trial in 2003. His attorney had learned that the evidence in the case had been destroyed in 2000. The attorney also learned through a thorough investigation that all of the records and documents associated with the lab report of the Texas Department of Public Safety concerning the marijuana had been lost. So prior to trial the attorney diligently filed a motion for an independent lab analysis of the seized marijuana and moved to suppress the DPS lab results. These motions were denied by the trial court.

Not to be deterred, Pena’s attorney lodged general evidence-custody objections based on the laws of Texas, the Texas Constitution, and the U.S. Constitution. The trial judge denied these objections, citing U.S. Supreme Court precedents that require a state criminal defendant to not only show that the lost or destroyed evidence was both material and favorable to his defense but that the state act in bad faith when it lost or destroyed the evidence.

During Pena’s trial, the prosecution called a DPS chemist to testify about the lab test results. Pena’s attorney not only properly objected but requested that he be allowed to question the chemist outside of the jury’s presence to assess his qualifications and to determine the admissibility of the test results. The trial judge granted the attorney’s request, and after both sides had an opportunity to question the chemist about the destruction of the evidence, the judge personally questioned the chemist to determine if DPS had acted in bad faith when it destroyed the evidence. The judge concluded the law enforcement agency had not only acted in bad faith but that the destroyed evidence was not favorable to Pena. (more…)

August 3, 2009

SENTENCING ENTRAPMENT: A FALLOUT OF REFORM

Filed under: Drug Defense Attorney — Tags: , , , — johntfloyd @ 6:56 pm

Prosecutors and Law Enforcement Officials Manipulate Investigations, Defendants Receive Greater Sentences

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

What is sentencing entrapment?

In a syndicated column that appeared in the Houston Chronicle (July 23, 2009), Larry Frankel, the legislative counsel for the ACLU in Washington, D.C., called sentencing entrapment “a little-known phenomenon in our criminal justice system” and it occurs “when the government through its agents or informants makes a person, who may have a predisposition to engage in one sort of criminal activity, to engage in more serious criminal activity that exposes that person to harsher punishment.”

Frankel illustrated this institutionalized form of governmental misconduct with a series of cases, including the highly-publicized case of Willie M. Aikens. This former major league baseball player recently testified before Congress about his fall from social grace through a debilitating crack cocaine habit. Aikens told the lawmakers he was contacted by an undercover police officer who asked him to “score” some drugs for her. The undercover officer encouraged Aikens several times to cook powder cocaine down into crack cocaine which provides a far more intense “high.”

Aikens’ original criminal predisposition was to provide the undercover officer with “powder” cocaine. The officer, however, kept urging the former World Series hero to cook the cocaine powder down into crack cocaine which ultimately caused him to be charged and convicted of possessing crack cocaine rather than powder cocaine. Under the United States Sentencing Guidelines in place at the time, possession of crack cocaine was considered 100 times more serious than possession of powder cocaine..

In May 2007 the U.S. Sentencing Commission sent a report to Congress recommending that the 100:1 sentencing ratio in crack/powder cocaine cases be reduced to a 20:1 ratio. The 100:1 ratio required federal judges to treat one gram of crack cocaine as the equivalent of 100 grams of powder cocaine. This disparate sentencing scheme created thousands of horrendous miscarriages of justice in the federal sentencing process with serious racial implications. Black crack cocaine offenders, like Aikens, were routinely punished 100 times more severely than white powder cocaine offenders. (more…)

June 20, 2009

U.S. SUPREME COURT LIMITS VEHICLE SEARCHES

Filed under: Drug Defense Attorney — Tags: , , , , — johntfloyd @ 1:59 pm

Arizona v. Gant, 129 S.Ct. 1710, (2009); Vehicle Searches after Arrest

By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair

Consider the following hypothetical. Two patrol officers with the Houston Police Department were following a Cadillac in an area known for gang and drug activity. Loud music was coming from the vehicle as it swerved several times from lane to lane. The officers decided to stop the vehicle for failure to maintain a single lane of traffic. In Texas, a law enforcement officer may lawfully stop a person for a traffic law violation. 1/

Once such a lawful investigative stop has been made, the law enforcement officer may temporarily detain a motorist if the officer has reasonable suspicion based upon clear facts which, when combined with reasonable inferences from those facts, permits the officer to conclude that a person detained is, has been, or soon will be engaged in criminal activity. 2/

The two officers that stopped the Cadillac approached the vehicle from different sides. One officer stopped at the driver’s side window while the other stopped at the rear passenger side of the vehicle. Both officers smelled a strong odor of marijuana and the officer at the driver’s side spotted an open bottle of tequila on the seat next to the driver.

At that point the officers had probable cause to arrest the driver for an open container violation. But they did not do so. Instead they instructed the driver to exit the vehicle. While the driver had not been arrested at this juncture, the two officers made a decision to search the vehicle based on the smell of marijuana. (more…)

June 7, 2009

A GLIMPSE AT THE NATION’S DRUG PROBLEM

Filed under: Drug Defense Attorney — Tags: , , , , — johntfloyd @ 2:56 am

20:1 Crack/Powder Ratio Still Flawed; Incarceration of Most Drug Offenders Absurd and Obscene

By: Houston Criminal Defense Attorney John Floyd and Paralegal Billy Sinclair

In May 2007 the U.S. Sentencing Commission sent a report to Congress recommending that the 100:1 sentencing ratio in crack/powder cocaine cases be reduced to 20:1. The 100:1 ratio under the U.S. Sentencing Guidelines required federal district courts to treat one gram of crack cocaine as the equivalent of 100 grams of powder cocaine. That disparate sentencing scheme created thousands of horrendous miscarriages of justice in the federal sentencing process with all sorts of ugly racial implications. Crack cocaine offenders, disproportionately African American, were routinely punished 100 times more severely than powder cocaine offenders.

In November 2007 Congress approved the 20:1 ratio amendment suggested by the Sentencing Commission—a modification designed to reduce the disparity between crack/powder cocaine sentences. But the official reasoning of the 20:1 ratio is just as flawed as was the 100:1 ratio. It just as offensive, with its inherent racial disparity, to punish crack cocaine offenders 20 times more severely than powder cocaine offenders as it was to punish them 100 times more severely.

The month after Congress adopted the 20:1 ratio the U.S. Supreme Court gave this Sentencing Guidelines (“Guidelines”) amendment more legal force in the case of Derrick Kimbrough. In the Kimbrough case the court held a sentence imposed within the Guidelines could be unreasonable because of disparity between crack and powder cocaine sentencing recommendations.

Section 3582 of Title 18 of the United States Code allows federal inmates who believed they had received unreasonably harsh sentences for crack cocaine offenses to file for a reduction of their sentences following the 2007 amendment. Hundreds, if not thousands, immediately did so. (more…)

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