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Drug Crimes Archives | Fort Worth Criminal Defense and Personal Injury Attorneys

Marijuana Texas CBD Oil Legal

Not Up in Smoke Yet: Marijuana Laws in Texas 2018

By | Drug Crimes

Marijuana Texas CBD Oil LegalYou have seen it on the news…yet another state has legalized marijuana. It seems as if weed is everywhere, surely Texas has jumped on the bandwagon and legalized it too! Our firm receives calls from people all the time who all say the same thing; they thought marijuana was legal now. Not in Texas.

Current Marijuana Laws in Texas

Despite having been legalized in other states, possessing even a small amount of marijuana is a crime in Texas. The Texas Health and Safety Code says it is illegal for a person to knowingly or intentionally possess a usable quantity of marijuana. How much marijuana a person has in their possession will affect the level of severity of the offense.

  • Up to 2 0z– Class B Misdemeanor, punishable by up to 180 days in jail and up to a $2,000 fine
  • 2oz to 4oz– Class A misdemeanor, punishable by up to 1 year in jail and a $4,000 fine
  • 4oz to 5lbsState Jail Felony, punishable by 180 days to 2 years in jail and up to a $10,000 fine
  • 5lbs to 50lbs– 3rd Degree Felony, punishable by 2 to 10 years in jail and up to a $10,000 fine
  • 50lbs to 2000lbs– 2nd Degree Felony, punishable by 2 to 20 years in jail and up to a $10,000 fine
  • More than 2000lbs– 1st Degree Felony, punishable by 2 to 99 years in jail and up to a $50,000 fine

Proposed Texas Laws Relating to Marijuana

Texas failed to pass any new marijuana legislation in 2017, but proponents of legalized marijuana are hopeful for the 2019 legislative session. House Bill 2107 was proposed during the 2017 session, co-authored by 78 House members. The bill would have expanded the Compassionate Use Act to include Texans dealing with medical issues other than intractable epilepsy. While the bill narrowly missed being brought to a vote, it showed there was bipartisan support for such a bill, and legislators remain optimistic marijuana reform will happen in 2019.

Medical Marijuana in Texas

The Texas Compassionate Use Act was signed by Governor Greg Abbot in 2015. The Act allows for individuals with intractable epilepsy to have access to CBD oil, a low THC cannabis oil. The bill prohibits smoking marijuana. Critics of the law say it is unworkable, as it requires a doctor to “prescribe” marijuana rather than recommend it as they do in other states where medical marijuana is legal. Under current federal law, a doctor “prescribing” marijuana could be open to sanctions, while one recommending the use is not. Another issue is that the ratio of THC to CBD that is allowed under the law is not potent enough to help some patients. There is potential for changes to be made to the Act during this legislative session, with proponents of the Act looking to broaden the scope and make access easier for patients.

THC Oil in Texas (Wax, Dabs, Marijuana Concentrate)

Possessing THC (tetrahydrocannabinol) oil in Texas is considered a more serious crime than simply possessing marijuana. Over the last few years, vaping THC oil, which is a concentrated version of the mind-altering component of marijuana, has become popular. Under Texas law, THC oil or wax is considered a concentrate and possessing it is a felony criminal offense.

  • Less than 1 Gram– State Jail Felony
  • 1 Gram to 4 Grams– Third Degree Felony
  • 4 to 400 Grams– Second Degree Felony
  • 400 grams or more – First Degree Felony

The law considers THC oil and wax to be in a different penalty group that marijuana, due to the higher level of THC, and consequences are much harsher. So while a typical small amount of marijuana could be punishable as a misdemeanor, even a very small amount of THC oil can be punishable as a felony. This is a common misconception that we often see in our THC oil cases. The user believes that a low amount is a misdemeanor, much like a low amount of marijuana. Not so. Every THC oil case is a felony.

Edible THC in Texas

The use of THC oil in edibles can be very serious. When weighing the amount of a controlled substance, the Texas Health and Safety Code includes all adulterants and dilutants in the total weight. Popular THC laced edibles like gummy candy and brownies will be weighed in their entirety, and can result in very serious felony charges.

CBD Oil in Texas

Cannabidiol oil (CBD Oil) is made from cannabis, but is non-psychoactive. CBD oil is made from industrial hemp, and is currently legal in Texas. Recently, shops selling CBD oil products have been popping up all over the metroplex, with promises the product can relieve pain and anxiety. The Texas Department of State Health Services has begun to crack down on retailers selling food products made with CBD oil, claiming they have the power to regulate any food product that contains CBD oil.

Synthetic Marijuana in Texas

K2, or Spice, is a synthetic form of marijuana that is created by spraying natural herbs with chemicals meant to mimic the effects of marijuana. Synthetic Marijuana is illegal in Texas, and carries the same punishment as marijuana.

Selective Prosecution for Marijuana Offenses in Texas

Several counties across the state, including Dallas, Bexar, and Harris, have implemented a marijuana cite and release program whereby folks are not being arrested for low-level possession charges. Other counties have diversion programs for first-time or low level offenders. You should check with a knowledgable attorney in your local area to learn more about the diversion programs available.

In Tarrant County, depending on the circumstances of the case, a marijuana offender may qualify for the Deferred Prosecution Program (DPP) or the First Offender Drug Program (FODP). Again, you should check with an attorney to determine whether you might be eligible to participate in either program.

Conclusion

Regardless of whether you disagree with what the law should be in regard to marijuana in Texas, it is currently illegal to use or possess. If you are arrested for possession of marijuana, you may qualify for a diversion program that will ultimately allow you to get your record fully expunged. Contact one of our attorneys today if you have pending marijuana charges in Tarrant County. We will be happy to discuss your options and defend your case.

Bus Driver Consent Search Wise 2017

Can a Bus Driver Give Consent to Search the Passenger Compartment?

By | Search & Seizure

The Case of the Not Too “Wise” Bus Passenger

United States v. Wise, 877 F.3d 209 (5th Cir. TX 2017)

Bus Driver Consent Search Wise 2017FACTS: In this case, police officers were conducting bus interdictions at a Greyhound bus stop. After a certain bus stopped, the driver got off the bus and the officers approached him requesting consent to search the passenger cabin of the bus. The bus driver consented to a search and two experienced narcotics officers in plain clothes boarded the bus. The officers did not block the exit or otherwise obstruct any of the passengers from departing the bus. One officer walked to the back of the bus while the other officer remained at the front.

The officer at the front of the bus noticed a man who was pretending to be asleep. The officer found this suspicious, because in his experience, criminals on buses often pretended to be asleep to avoid police contact. The officer walked past the “sleeping” man and turned around. The sleeping man (named Morris Wise) then turned to look back at officer, revealing that he was not asleep after all. The officer then approached Wise (now awake) and asked to see his bus ticket. Wise gave the officer a bus ticket, bearing the name “James Smith.” The officer had a hunch that James Smith was a fake name. The officer then asked Wise if he had any luggage with him on the bus. Wise said yes and motioned to the luggage rack directly above his head.

Wise then gave the officers consent to search the duffle bag in the overhead compartment. The officers did not find any contraband in the duffle bag. The officers also noticed a backpack near Wise and asked if the backpack belonged to him. Wise denied ownership of the backpack. The officers then asked the other passengers about the backpack and no one claimed it, so the officers removed the backpack at the bus driver’s request.

Outside the bus, a trained police canine alerted to the backpack. The officers then cut a small lock off the backpack, searched it, and found seven brick-type packages that appeared to contain cocaine.

The officers then went back onto the bus and asked Wise if he would mind getting off the bus to speak to the officers. Wise complied with the officers’ request and got off the bus. The officers asked Wise if he had any weapons, which he denied that he had any weapons, and then they asked him to empty his pockets.

From his pockets, Wise gave the officers his ID card with bearing the name “Morris Wise” and a lanyard with several keys attached to it. Not surprisingly, one of the key opened the lock that the officers had to cut off of the backpack (that Wise said was not his). The officer then arrested Wise, and the government charged him with several drug-related offenses.

Motion to Suppress the Search as the Fruits on an Illegal “Checkpoint Stop”

Wise filed a motion to suppress the evidence as a violation of his 4th amendment right against unreasonable searched and seizures. The district court held that the officers’ conduct in searching the bus constituted an unconstitutional checkpoint stop. In addition, the district court held that the bus driver did not voluntarily consent to the officers’ search of the luggage compartment where the backpack was located. As a result, the district court suppressed all evidence the officers seized after the stop.

The government appealed to the Fifth Circuit Court of Appeals.

First, the court held that the district court incorrectly characterized the officers’ bus interdiction as an unconstitutional checkpoint. The court noted that the Supreme Court’s cases involving checkpoints involve roadblocks or other types of conduct where the government initiates a stop to interact with motorists. In this case, the officers did not require the bus driver to stop at the station. Instead, the driver made the scheduled stop as required by his employer, Greyhound. In addition, the officers only approached the driver after he had disembarked from the bus, and the driver voluntarily agreed to speak with them. The court concluded that the interaction between the officers and the driver was better characterized as a “bus interdiction.”

Second, although Wise had a reasonable expectation of privacy in his luggage, the court held that as a passenger, Wise did not have a reasonable expectation of privacy in the luggage compartment of the commercial bus. As a result, the court concluded that Wise had no standing to challenge the officers’ search of that compartment, to which the bus driver consented.

Third, the court held that the officers did not seize Wise, within the meaning of the Fourth Amendment, when they approached him, asked to see his identification, and requested his consent to search his luggage. Instead, the court concluded that Wise’s interaction with the officers was a consensual encounter because a reasonable person in Wise’s position would have felt free to decline the officers’ requests or otherwise terminate the encounter.

Finally, the court held that Wise voluntarily answered the officer’s questions, voluntarily emptied his pockets, and voluntarily gave the officer his identification and keys.

Fraudulent Prescription Forms Texas

Fraudulent Prescription Form Versus Alteration of Legitimate Prescription

By | Drug Crimes

Can a Defendant Be Convicted for Using a “Fraudulent Prescription Form” When They Only Altered the Information on an Otherwise Valid Prescription?

Avery v. State, 359 S.W. 3d 230 (2012)

Fraudulent Prescription Forms TexasIn 2012, the Texas Court of Criminal Appeals released an opinion concerning whether a defendant may be convicted under Texas Health and Safety Code Section 481.129(a)(5)(B) for using a “fraudulent prescription form” when the facts showed that the defendant altered the dosage information on an otherwise valid prescription that had been written by the defendant’s physician.

The Facts — The Trial Court Denied Defendant’s Motion and Defendant was Convicted for Using a Fraudulent Prescription Form

In 2009, Defendant received a prescription for forty 2.5-milligram Lortab pills from her doctor after she complained of knee and back pain. Before dropping off the prescription at the pharmacy, Defendant attempted to scribble out the “2.5” and make it look like “7.5.” The pharmacist became suspicious and called the doctor’s office to confirm the prescription. The nurse confirmed the Defendant’s prescription was for 2.5-milligram pills and the pharmacist called the store security, who then contacted police.

During trial in which the defendant had been charged with using a fraudulent prescription form, Defendant moved for a directed verdict of acquittal. Defendant argued that, while there was evidence of forgery, there was no evidence that she used a “fraudulent prescription form” as alleged in the indictment. Defendant further argued that the prescription form was not fraudulent, but only that what the doctor wrote was altered. Therefore, there was no evidence that Defendant committed fraud by using a fraudulent prescription form.

However, the State responded that even by altering an otherwise legitimate prescription form, as Defendant did when attempting to change the dosage, Defendant had created a fraudulent prescription form. The trial court denied Defendant’s motion and the jury found Defendant guilty. Defendant was sentenced of 25 years’ confinement and a $1,500 fine.

The Court of Appeals Vacated the Trial Court’s Judgment and Entered a Verdict of Acquittal, Holding Defendant’s Actions More Closely Resembled Actions in a Different Subsection of Statute Instead of that Listed in the Indictment

Section 481.129 of the Texas Health and Safety Code governs the offense of fraud under the Texas Controlled Substances Act. According to Section 481.129(a)(5)(A), a person commits an offense if they possesses, obtains, or attempts to possess a controlled substance by misrepresentation, fraud, forgery, deception, or subterfuge.

Section 481.129(a)(5)(B) differs slightly in that a person commits the offense if they possess or attempt to possess a controlled substance through the use of a fraudulent prescription form.

Section 481.075 of the Texas Health and Safety Code governs the “Official Prescription Program,” which prescribers must follow in order to prescribe Schedule II Controlled Substances. This section describes the elements of an “official prescription form” as the controlled substance prescribed as well as the quantity of that controlled substance. The State argued that since the prescriber’s written words are part of the “official prescription form,” the Defendant turned the entire document into a “fraudulent prescription form” when she altered the written words.

The Court of Appeals, however, accepted neither party’s argument in full and believed its job was to determine whether Defendant’s actions were “more” like the “misrepresentation, fraud, [or] forgery” or like the “use of a fraudulent prescription form.” The Court of Appeals determined that the action may fall under either description, but cannot fall under both. Thus, the Court of Appeals ruled that Defendant’s actions—altering the writing—more closely resembled “forgery” than the “use of a fraudulent prescription form.”

Accordingly, the Court of Appeals vacated the trial court’s judgment and entered a verdict of acquittal.

The Court of Criminal Appeals Affirmed the COA, Holding that Defendant’s Alteration of Information on the Legitimate Prescription Violated a Different Statute than that for which Indicted

The Court of Criminal Appeals first addressed factual matters in the Court of Appeals’s opinion. Beginning with discussing the original indictment, it did not specify which Schedule of controlled substance Lortab is on. The Court of Appeals identified it is a Schedule II controlled substance, but also cited to definitions that describe Lortab as a combination drug that may be Schedule III. The pharmacist’s testimony identified Defendant’s Lortab as a Schedule III controlled substance mixture.

Secondly, as a result of a different schedule drug, Section 481.075 would not be applicable as it only applies to Schedule II controlled substances and does not mention Schedule III substances. Further, there was nothing in the record that led the Court of Criminal Appeals to believe that Defendant used an “official prescription form.”

The Court of Criminal Appeals analyzed how the Court of Appeals discussed the history and intent of the statutes, and determined that, based on statutory inferences and common language, “prescription form” refers to a pre-printed form that is used to write information on it. Further, the Legislature intended to create a legal distinction between completed prescriptions and the prescription forms.

After analyzing the statute applied in the Court of Appeals, the Court of Criminal Appeals determined that Subsection (B) of Section 481.129(a)(5) only governs the use of a fraudulent prescription form. Further, the Court of Criminal Appeals ruled that the writing on the form is not an element of that offense.

In the case at hand, the State originally charged Defendant with attempting to obtain a controlled substance “through use of a fraudulent prescription form.” The evidence presented by the State adduced that Defendant fraudulently altered the information written on the legitimate prescription form. Although the evidence would have supported a conviction had Defendant been charged under another statute, the evidence does not support a conviction for the offense Defefndant was charged with.

Although the Court of Criminal Appeals disagrees with the reasoning of the Court of Appeals, it agrees in its judgment and affirms the Court of Appeals’s judgment of acquittal.

Stale Traffic Violation Zuniga Drug Case

Does a 15-Minute Delay Render a Traffic Violation Stale? | U.S. v. Zuniga

By | Drug Crimes

How Long Can an Officer Wait to Pull a Vehicle Over After Observing a Traffic Violation?

Stale Traffic Violation Zuniga Drug CaseUnited States v. Zuniga (US Court of Appeals, 5th Cir. 2017)

In this case, a San Antonio police detective, who was working with an informant, suspected that Appellant Zuniga was transporting methamphetamine in his vehicle and followed it. The detective witnessed the driver of the vehicle fail to engage the turn-signal as required. He did not pull the vehicle over at that time, but radioed the traffic violation to other officers. Approximately fifteen minutes later, an officer who had received the radio dispatch but had not witnessed the turn-signal violation, stopped the vehicle. During the stop, the officer encountered Appellant, who was riding in the passenger seat, and his girlfriend, who was driving the vehicle. The officer arrested Appellant on outstanding warrants and his girlfriend for driving without a valid driver’s license.

The arresting officer conducted a search of Appellant incident to arrest and found methamphetamine on his person. The officer also searched Zuniga’s car and found a backpack containing methamphetamine, a handgun, and other evidence related to drug trafficking.

As a result, the federal government charged Appellant with several drug-related offenses.

Motion to Suppress for Unreasonable Traffic Delay

Appellant filed a motion to suppress the evidence seized during the stop, arguing that the fifteen-minute delay in conducting the stop for the turn-signal violation rendered the information provided by the detective who observed the violation stale.

The trial court denied the motion to suppress, holding that the delay in conducting the stop was not enough to render the information stale or the stop unlawful. The court did not state a specific time limitation to which officers must adhere when conducting a traffic stop. Instead, the court stressed that stops following traffic violations must be reasonable in light of the circumstances. In this case, the court found that the fifteen-minute delay was reasonable. As soon as the officer observed the turn-signal violation, he immediately relayed this information to other officers, although none of those officers were in position to stop the vehicle at that time.

Collective Knowledge Doctrine Allows an Officer to Make a Stop for a Violation He Did Not Observe

The trial court further held that the collective knowledge doctrine allowed the arresting officer to lawfully stop the vehicle even though he did not personally observe the traffic violation. The collective knowledge doctrine allows an officer, who does not observe a criminal (or traffic) violation, to conduct a stop when that officer is acting at the request of another officer who actually did observe the violation. Here, the detective who observed the turn-signal violation communicated this information to the traffic officer who ultimately stopped the vehicle; therefore, the detective’s knowledge transferred to the officer who conducted the stop and made the arrest.

The 5th Circuit upheld the search and the conviction, holding that reasonable suspicion to stop the vehicle continued to exist despite the 15-minute lapse between the original observation of the traffic offense and the stop. The court explained:

“We make no attempt to articulate a specific time limitation to which officers must adhere in effecting a stop following a traffic violation. Rather, we stress that, consistent with our holdings in similar contexts, stops following transportation violations must be reasonable in light of the circumstances. See, e.g., United States v. Robinson, 741 F.3d 588, 598 (5th Cir. 2014) (emphasizing that “[s]tale information cannot be used to establish probable cause”). To reiterate, we hold only that the elapsed time between an observed violation and any subsequent stop must be reasonable upon consideration of the totality of the circumstances.”

traffic stop duration king

When Does a Traffic Stop End and Improper Police Conduct Begin?

By | Drug Crimes, Search & Seizure

A Traffic Stop for a Minor Traffic Infraction Leads to Search, Seizure, and Arrest: Exactly When Should Traffic Stops End?

traffic stop duration kingIf you’ve been a licensed (or even unlicensed) driver in Texas for long enough, you’ve experienced a traffic stop. Whether it be for speeding or something worse, a traffic stop is not generally a pleasant experience. But in some traffic stops across the state (hopefully not yours), the police conduct a search of the vehicle, then a search of the driver or passengers, and, finally make an arrest of some sort. How does something like a broken tail light or speeding lead to search, seizure, and arrest? When traffic stops for minor infractions potentially lead to serious criminal charges, it’s important to know how Texas courts define the moment when a traffic stop ends.

King v. State (2nd Court of Appeals – Fort Worth, 2016)

Broken Tail Light Leads to a Traffic Stop

Around 1:00 am, Jennifer Dowling drove Christopher King’s car home from a night on the town. Blue Mound Police noticed that the car had a broken right tail light and conducted a traffic stop pursuant to the infraction. Police ran the standard background check on Dowling, the driver, and King, the passenger, only to discover that neither had a valid driver’s license. As a result, Dowling was arrested for driving without a license. Police did not permit King to drive the car away and informed him that they would impound the car because leaving the car behind posed a safety hazard for other motorists.

Consent to Search Obtained, Traffic Stop Continued

To begin the impounding process, police asked King to exit the vehicle. When King got out of the car, police asked if they could perform a pat-down. Nervously, King complied with the request. When King stood up, a white cylinder-shaped container fell out of King’s pants onto the ground, and he admitted that the container held meth. King was arrested and charged with possession of a controlled substance.

Trial Court Holds That King Consented to the Pat-Down

Before trial, King filed a motion to suppress the physical evidence—the meth and the container—because the evidence was seized without a warrant. At the suppression hearing, the State prevailed, arguing that King consented to the pat-down, and the interaction was a consensual encounter. King lost his suppression motion, and plead guilty to the charges. The trial court sentenced King to twelve years confinement. Arguing that the traffic stop ended when Dowling was arrested and that the traffic stop was improperly extended to him, King appealed to the Second Court of Appeals.

Second Court of Appeals Discusses Traffic Stops

The Second Court of Appeals in Fort Worth relied upon existing case law from the Supreme Court to evaluate the merits of King’s appeal. “A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation.” Arizona v. Johnson, 555 U.S. 323, 333; 129 S. Ct. 781,, 788 (2009). “A traffic stop ends when police have no further need to control the scene.” Id., 129 S. Ct. at 783. According to the Second Court of Appeals, the police needed to control the scene even after Dowling was arrested. In asking King for a pat-down, they were taking reasonable steps to secure the area by ensuring that King was not a safety threat while waiting for a tow truck. Further, “the impoundment of the vehicle was a task tied to the traffic infraction, and King ma[de] no argument that the task [of impoundment] should have reasonably been completed at the time the police asked for consent to the pat-down.” The Second Court of Appeals affirmed the trial court’s holding that the traffic stop was not improperly extended.

What does all of this mean for motorists? So long as the police are reasonably securing the scene by taking steps in an effort to maintain safety, the police may continue the traffic stop until the conclusion of such safety measures, including but not limited to, pat-downs, security sweeps, background checks, and impoundments.  In this case, King would have had a more colorable argument if he had been a licensed driver and the police extended the stop rather than letting him drive the vehicle away from the scene.

“Smith Triple Murder” Crime Spree Defendants Appeal Convictions on Evidentiary Grounds

By | Drug Crimes

Case law Update: United States v. Barnes, et al (5th Circuit Court of Appeals – 2016)

Defendants Martel Barnes, Randale Jones, and Kentorre Hall were each charged with (1) conspiracy to possess illegal drugs, (2) maintaining a drug-involved premises, (3) conspiracy to possess firearms in furtherance of drug crimes, and (4) possession of a firearm in furtherance of a drug-trafficking crime for their involvement. In 2012, law enforcement grew suspicious of the group when investigating a triple murder where circumstantial evidence linked the Defendants to a network of drug trafficking in Mississippi, based out of a home rented by Hall. After interviewing witnesses and corroborating stories of informants, the Mississippi Bureau of Narcotics executed a search warrant on the home which netted firearms, digital scales, and plastic baggies. Law enforcement linked the drug trafficking to the triple murder by analyzing shell casings from the murder scene and comparing them with casings found during the search. In addition to the murders and the drug distribution ring, the men were eventually linked to a string of armed robberies.

At trial, the Government called thirty-four witnesses in total. After hearing testimony for over a week, the jury found the Defendants guilty on all counts, and they were each sentenced to life in prison, followed by five years of supervised release. The Defendants appealed to the Fifth Circuit Court of Appeals, arguing insufficient evidence for each charge in the indictment. The Fifth Circuit had to determine whether a reasonable jury would have found that the evidence established the guilt of the Defendant(s) beyond a reasonable doubt. Below, we examine each charge and discuss the Court’s analysis of conclusions reached on appeal.

Charge #1: Conspiracy to Possess Illegal Drugs

Each Defendant was charged with conspiracy to possess illegal drugs, a violation of 21 U.S.C. §§ 841(a)(1) and 846. Under the law, it is unlawful for any person knowingly or intentionally to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; any person who attempts or conspires to commit any offense [herein] shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.

On appeal to the Fifth Circuit, the Defendants argued that the witnesses used by the Government at trial lacked credibility. The Defendants argued that the witnesses were criminals with their own convictions and that their testimonies should not have been used at trial. Here, the Fifth Circuit stated, “this argument holds no weight given the quantity and consistency of the evidence presented at trial.” Moreover, held the Court, “credibility issues are for the finder of fact and do not undermine the sufficiency of the evidence.” United States v. Morgan, 117 F.3d 849, 854 n.2 (5th Cir. 1997). The Court affirmed the district court’s holding regarding the conviction for this charge.

Charge #2: Maintaining a Drug-Involved Premises

Second, each Defendant was charged with maintaining a drug-involved premises pursuant to 21 U.S.C. § 856(a) and 18 U.S.C. § 2. Under this section of the code, it is unlawful to knowingly open, lease, rent, use, or maintain any place, whether permanently or temporarily, for the purpose of manufacturing, distributing, or using any controlled substance; whoever commits an offense…or aids, abets, counsels, commands, induces, or procures its commission, is punishable as a principal. “In determining whether a person maintained a drug-involved premises under Section 856, the Court typically considers whether a Defendant (1) has an ownership or leasehold interest in the premises; (2) was in charge of the premises; or (3) exercised supervisory control over the premises.” United States v. Soto-Silva, 129 F.3d 340, 346 (5th Cir. 1997). Surprisingly, the Fifth Circuit declined to resolve this issue, as the Defendants were “subject to criminal liability for aiding and abetting” Hall, who rented the house where the criminal activity had taken place.

To prove up aiding and abetting, the Government had to have established that (1) the elements of the substantive offense occurred and (2) the Defendant(s) associated with the criminal activity, participated, and acted to help it succeed. United States v. Delagarza-Villarreal, 141 F.3d 133, 140 (5th Cir. 1997).

Here, said the Fifth Circuit, the Government sufficiently proved up that Hall rented the home where the criminal activities were taking place, and that the other Defendants helped him in furtherance of the crimes. The Defendants spent hours a day at the home where the drugs were measured and sorted, “we conclude that a reasonable jury could find that [the Defendants] were guilty of the charged offenses.”

The Defendants also appealed that the word “place” in the statute was ambiguous and therefore, should not have been applied to include their cars and the area surrounding their cars, where more incriminating evidence supporting this charge was eventually seized. The Fifth Circuit stated that according to the Oxford Dictionary, “the definition of ‘place’ is not limited to buildings or structures…[although] the term ‘premises’ is commonly defined as a house or building.” The Fifth Circuit held that the district court did not error when instructing the jury that “place” could mean “house” or the “yard area” [where cars are parked] around a house.

Charges #3 and #4: Conspiracy to Possess and Possession of Firearms in Furtherance of Drug Crimes

Third, each Defendant was charged with conspiracy to possess firearms in furtherance of drug crimes and possession of firearms in furtherance of drug crimes, violations of 18 U.S.C. § 924(o) and 2. At trial, the Government presented extensive circumstantial evidence linking all the Defendants with the triple murder. Some of the evidence included Facebook and text messages with incriminating statements. On appeal, the Defendants argued that the social media and text messaging evidence was irrelevant to prove their involvement with the alleged crimes, and that it was to have been considered improper character evidence. The Fifth Circuit held that “the evidence of the Smith Triple Murder was directly relevant to the conspiracy charges because it showed that the [Defendants] were willing to use firearms in furtherance of their drug trafficking activities.”

The Fifth Circuit affirmed the Defendant-Appellants’ convictions.

Emergency Aid Police Arrest Texas

Does the Emergency Aid Exception Apply to Vehicle Stops?

By | Warrantless Search

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

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

US v. Toussaint (5th Circuit – 2016)

The Facts—Trial Court Found the Exigent Circumstances Had Expired

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

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

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

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

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

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

Tarrant County Juvenile Drug Court Program

Help When You Need It Most: Tarrant County Juvenile Drug Court Program

By | Juvenile

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

The Basics of the Program

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

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

The Process of the Juvenile Drug Court Program

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

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

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

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

The Requirements of the Tarrant County Juvenile Drug Court Program

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

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

juvenile drug possession texas

Drugs, Kids, and Juvenile Justice in Texas

By | Juvenile

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

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

Levels of Drug Offenses and Ranges of Punishment in Texas

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

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

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

Synthetic Drugs – A Moving Target

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

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

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

Prescription Drugs

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

Ownership vs. Possession

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

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

Common Situations Where Kids Encounter Drugs

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

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

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

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

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

Conclusion

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

About the Author

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

Stop and Frisk Furr v. State 2016

Reasonable Suspicion to Stop and Frisk Upheld | Furr v. State (2016)

By | Reasonable Suspicion, Search & Seizure

Texas Court of Criminal Appeals Upholds a Stop and Frisk Case

Stop and Frisk Furr v. State 2016Furr v. State (Tex. Crim. App. 2016)

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

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

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

The Facts of Furr v. State

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

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

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

The Court of Appeals Affirmed the Trial Courts Decision

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

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

1. The Analysis of the Detention

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

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

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

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

2. The Terry Frisk

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

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

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

DISSENT – Stop and Frisk Should Have Been Held Unlawful

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