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Marijuana Archives | Fort Worth Criminal Defense, Personal Injury, and Family Law

Marijuana Smell Warrantless Search Texas

Is the Smell of Marijuana Enough to Permit a Warrantless Vehicle Search?

By | Drug Crimes

Does the Smell of Marijuana Allow Officers to Search My Vehicle Without a Warrant?

Marijuana Smell Warrantless Search TexasIn Texas, the answer is yes. The possession of marijuana is a crime in Texas, so if an officer smells marijuana emanating from your car, he has probable cause to believe a crime is being committed. With probable cause, the law permits the officer to stop and search your car— regardless of whether you consent.

The officer has the ability to do this through what is called the “automobile exception” to the 4th Amendment’s warrant requirement.1 Generally, the 4th Amendment to the United States Constitution requires police officers to first obtain a warrant before they can search a person’s property. However, because automobiles can quickly move locations and evade law enforcement, the Supreme Court reasoned that it would be impractical to require officers to first secure a warrant before they are permitted to search a vehicle.2 So by claiming to smell marijuana, law enforcement officers can also claim to have probable cause to believe a crime is being committed—allowing them to take advantage of the automobile exception and search a vehicle without anything more.

Will the Search Laws Change if Marijuana Becomes Legal?

Maybe. There have been small changes in the law with the current trends in marijuana legalization. A couple of state courts adopted the rule that, after legalization or decriminalization, the smell of marijuana is no longer enough on its own to justify a warrantless search of a vehicle. For example, in Vermont, after the decriminalization of adult possession of less than one ounce of marijuana, the Vermont Supreme Court held that the odor of marijuana alone is insufficient to establish probable cause to search a vehicle.3 The Massachusetts Supreme Court ruled that the state’s decriminalization policy means that the possession of marijuana is now a civil infraction, making the smell of it an insufficient basis for officers to believe a crime is being committed.

However, most states where marijuana is legalized or decriminalized still follow the rule that the smell of it establishes probable cause in support of a vehicle search.4 This is because these states still criminalize the possession of larger amounts of marijuana—meaning that the smell of it still indicates that a crime could be underway. This is the logic that the Washington, Maryland, Colorado, and Arizona courts follow.5

But what about Texas?

As stated above, the possession of marijuana in Texas is a crime, and officers are still justified in searching vehicles if they smell marijuana coming from them. However, Texas legalized the cultivation of industrial hemp in 2019, which smells like just like marijuana. The issue of whether probable cause can still be supported by the odor of marijuana in light of hemp’s legalization was raised in state court in 2020, but the court left it undecided as the vehicle search in question occurred before the legalization of hemp.6 It remains to be seen if or when Texas will legalize marijuana, and what attitude Texas courts will take towards the question of marijuana odor and vehicle searches.

 

[1] Carroll v. United States, 267 U.S. 132 (1925).
[2] Id., at 153.
[3] Zullo v. State, 2019 Vt. LEXIS 1, * (Vt. January 4, 2019).
[4] Cece white, The Sativas and Indicas of Proof: Why the Smell of Marijuana Should Not Establish Probable Cause for a Warrantless Vehicle Search in Illinois, 53 UIC J. Marshall L. Rev. 187, 211 (2020).
[5] Id., at 211.
[6] Geberkidan v. State, 2020 WL 5406243, NO. 12-19-00296-CR (2020).

Christmastime Arrests Texas

Top 5 Reasons for Arrests During the Christmas Holiday Season

By | Criminal Defense

Christmastime Arrests TexasWhen you think about the Christmas season, you probably think about family time, presents, good food, and celebration. We think about those things too, but as criminal defense attorneys, we also think about the reasons that some of our clients get arrested during the holiday season. For this article, we took a look at the last 6 years of holiday season arrests (for clients that we represented) and compiled an (anecdotal) list of the top 5 reasons that folks get arrested during the Christmas/New Year’s season. Our goal is that this list will serve as a warning, so that your holiday season can be filled with the good stuff, rather than jail, bail, and calls to our office. Here goes:

5. Shoplifting

Many retailers slash their prices and offer steep discounts in the weeks leading up to Christmas and even bigger discounts after Christmas, but we have yet to see any retailer offer the “five finger discount” for their merchandise. Regardless, we see plenty of shoplifting cases during the Christmas season, making it our #5 reasons that people get arrested during Christmas. Depending on the regular price value of the item (not the discounted price), shoplifting theft charges can range from misdemeanors to felonies. Learn more about Theft law in Texas here.

4. Package Theft

In a similar vein to shoplifting, our #4 reason for holiday arrests is package theft. Many shoppers choose the convenience of online shopping and have their Christmas purchases delivered right to their front door. Some people see this as an easy target, following behind UPS or FedEx trucks to steal those would-be Christmas gifts from the front porch. However, with the increase in doorbell cameras, it is getting easier to catch the porch pirates in the act. Further, some law enforcement agencies have begun using dummy packages to bait thieves into getting caught. Package theft can range from a misdemeanor to a felony depending on what unknown treasure lay inside the brown box.

3. Airport Contraband (Guns and Drugs)

Going to visit grandma can require air travel for many families. This means that thousands more people than usual flood through DFW Airport between Thanksgiving and New Year’s. It matters not from where these travelers hail. From Maryland to Oregon to France, if a person is arrested at DFW Airport, their case will be filed in Tarrant County, Texas and they will have to travel back to DFW to attend court. During the holidays, we see a surge in airport arrests when people bring items into the airport that are not allowed. These mostly consist of:

Even if the state from which a traveler is coming has legalized marijuana and the state to which they are traveling has legalized marijuana, if they are caught possessing marijuana in the airport, they will be arrested and charged. The combination of airport gun arrests and airport drug arrests make these types of cases our #3 reason for holiday arrests.

2. Assault Family Violence

In the movie Christmas Vacation, Clark Griswold showed an enormous amount of restraint when his extended family pushed him to the limit (especially Cousin Eddie), but not everyone is blessed with such a cool head. Christmas time brings added stressors into the family environment that can sometimes lead to verbal or physical altercations between family members, so much so, that these arrests rank at #2 in our book. Depending on the nature of the assault, a domestic violence arrest can be charged as a misdemeanor or a felony. Learn more about Family Violence under Texas law.

1. Driving While Intoxicated

With all of the Christmas and New Year’s parties and the increase in No Refusal Weekends, it is not hard to guess that DWI arrests are #1 on our list. Driving While Intoxicated in Texas can range from a misdemeanor (if it is a first or second offense) to a felony (if there is a child in the car or if the person arrested has been convicted of DWI twice in the past). Our advice is to plan ahead and do not even take your car to a Christmas party when you plan to drink. Catch a ride from a friend or take an Uber or Lyft. That would be a lot cheaper than hiring an attorney and a lot less hassle too. Learn more about Texas DWI law here.

We Hope You Never Need Us, But We’re Here if Your Do.

We wish you a very merry Christmas and a happy New Year. As always, we hope you never need us to represent you or one of your loved ones for a criminal offense. This is even more true during the Christmas season. Hopefully this list will help you avoid trouble that looms during the holiday season. If you do happen to need us, we are only a phone call away at (817) 993-9249.

CBD Oil Legal Texas

Is CBD Oil Legal in Texas? Perhaps, But it Must Fit These Qualifications

By | Drug Crimes

What is CBD Oil?

CBD Oil Legal TexasCBD Oil, which is short for cannabidiol oil, is a cannabinoid extract that is alleged to have the health benefits of cannabis (e.g. pain relief, easing of inflammation, anxiety management and the treatment of epilepsy) without the psychoactive effects of marijuana. CBD Oil is sold as a supplement in marijuana dispensaries, nutrition stores, and even as an additive in smoothies. While the popularity of CBD Oil is growing substantially, the product remains unregulated by the U.S. Food and Drug Administration, leading to wide discrepancies in the product’s ingredients and quality. The variety of ingredients and compounding methods may have significant ramifications for consumers depending on Federal and state law and the interpretation of those laws by state law and health code enforcement agencies.

Is CBD Oil Legal Under Federal Law?

Yes, if it is produced within federal guidelines.

As of December 20, 2018, the Fed Gov has legalized hemp that has a tetrahydrocannabinol (THC) concentration of no more than 0.3% by removing it from Schedule I of the controlled substances act. States and Indian Tribes may regulate the production of Hemp by submitting a plan to the USDA. This bill also makes hemp producers eligible for the federal crop insurance program and certain USDA research grants.

With the passing of the new 2018 Farm Bill, hemp and hemp-derived products have been officially removed from the purview of the Controlled Substances Act, such that they are no longer subject to Schedule I status. Meaning that so long as CBD is extracted from hemp and completely pure (with less than 0.3% THC on a dry weight basis of THC, something the DEA doubts is possible) and grown by licensed farmers in accordance with state and federal regulations, it is legal as a hemp product.

However, in 2016 the Drug Enforcement Agency released an administrative ruling considering CBD Oil to be a Schedule One drug, comparable to heroin, peyote and LSD, operating on the theory that it is extracted from the same parts of the Cannabis sativa plant that contain THC, the active ingredient of marijuana. CBD consumers and manufacturers assert that CBD can also be extracted from the non-intoxicating parts of the Cannabis sativa plant that produce hemp, however, a recent 9th Circuit decision affirmed the DEA’s authority to classify CBD Oil as within their administrative purview.2

For CBD Oil to be considered legal in the Federal system under the DEA’s guidelines it must “consist[] solely of parts of the cannabis plant excluded from the CSA definition of marijuana.” In the definition of marijuana given by the Controlled Substances Act, the “mature stalks of such plant, fiber produced from such stalks, oil or . . . any other . . derivative, mixture, or preparation of such mature stalks” are excluded from the definition. Presently the DEA considers an extraction process using only the parts of the cannabis plant that are excluded from the CSA definition of marijuana to be “not practical.” This is because the extraction process used would “diminish any trace amounts of cannabinoids that end up in the finished product.”

Is CBD Oil Illegal Under the Laws of the Various Individual States?

Yes, CBD is legal, but not in all states.

At the state level, CBD Oil is considered legal in the states where marijuana is legal for recreational use (Alaska, California, Colorado, DC, Maine, Massachusetts, Nevada, Oregon, Vermont). Twenty-nine states have made marijuana legal for medical use in various quantities and CBD is also considered legal under those state laws, irrespective of the THC content of the source of the oil. In states that have not decriminalized marijuana, CBD Oil is also likely illegal.

Is CBD Oil Legal In Texas?

NO, unless you fall within the qualifications set by the Compassionate Use Act.

If you are prescribed the use of medical CBD oil and use ‘low-THC” CBD, then the use is legal. Texas has legalized marijuana for medical use only, but only in a very narrow set of circumstances. The Compassionate Use Act of 2015 authorizes the prescription of “low-THC cannabis,” defined as having no more than 0.5% THC for patients diagnosed with intractable epilepsy and entered into the state-maintained “compassionate-use registry.”3 The Act requires prescription by two physicians however, it is currently illegal under federal law for a physician to “prescribe” marijuana. Under a 2000 court ruling, it is legal for physicians to “recommend” marijuana to their patients but the language of the Compassionate Use Act calls for a prescription, setting up a conflict with Federal law.4 Additionally, to qualify for the medical use of CBD, the patient must have tried two FDA-approved drugs and found them to be ineffective. There are currently three dispensaries licensed by Texas to sell qualifying products to authorized consumers.

If you do not fall within the qualifications set by the Compassionate Use Act, then possession of CDB oil containing any amount of THC is against Texas law. The State definition of marijuana closely tracks the Federal definition. The Texas Health and Safety Code defines marijuana as “the plant Cannabis sativa . . . and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds.” The Code excludes “the mature stalks of the plant or fiber produced from the stalks [and] a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil.” Texas does not currently have legislation allowing for the cultivation of hemp, though industrial hemp derived from the mature stalks of the Cannabis sativa plant may be sold and consumed.

What is the Penalty for Possession of CBD Oil in Texas?

In Texas, if you possess CBD oil with any trace of THC, you could be charged with a Felony for Possession of a Controlled Substance in Penalty Group 2, which (depending on the weight in grams) can carry a range of punishment from 180 days in a state jail facility up to 20+ years in prison and a fine not to exceed $10,000. Several of our clients have been arrested for possessing CBD oil after officers performed a field test and discovered that yielded a positive result for THC.

If the CBD oil does not contain any THC, is it currently a Schedule V substance not in any penalty group. Possession of CBD with no THC can be charged as a Class B Misdemeanor with a punishment range of 0 – 180 days in jail and a fine up to $2,000.

What To Look For In CBD Oil In Texas

CBD Oil made from the mature stalks of the Cannabis sativa plant are likely in conformity with both Federal and Texas State law. Consumers seeking to purchase CBD Oil in Texas should look for a product advertised as being the product of “industrial hemp” or “mature hemp.” Products advertised as containing “THC” or “CBD Oil” should be avoided because of potential conflict with State and Federal laws.

  • Texas consumers with intractable epilepsy may seek to join the Compassionate Use Registry and get a prescription for CBD Oil containing less than 0.5% THC from an authorized dispensary.
  • Physicians should be mindful that “prescribing” CBD Oil to Texas residents under the Compassionate Use Act may fall into conflict with existing Federal law.
  • Retailers that are not one of the three state-authorized dispensaries authorized by the Compassionate Use Act should take care to carry only products that do not advertise themselves as containing CBD Oil but instead focus on being the product of industrial hemp.

Where Can I Purchase CBD Oil with 0% THC?

While there are many CBD oil stores popping up all over Texas, we have found one near our office that sells CBD Oil with 0% THC in it. They test it to confirm the THC content so that you can be sure of what you are getting. Visit Your CBD Store at https://yourcbdstorekeller.com to learn more or purchase their CBD products online. But remember that even though many agencies are not choosing to arrest or prosecute for  zero THC CBD oil, the Tarrant County DA’s office is still filing these cases if a person is arrested.

Sources:

  1. H.R.2642 – 113th Congress (2013-2014): Agricultural Act of 2014.
  2. Hemp Industries Association v. USDEA, No. 17-70162
  3. SB339  Texas Compassionate Use Program
  4. Conant v. McCaffrey  WL 1281174
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 that is made from industrial hemp 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.

But not all CBD oil is legal. If there is any trace of THC in the CBD oil, the user could face prosecution for misdemeanor Possession of a Controlled Substance (Not in a Penalty Group).

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.

THC Controlled Substance Analogue Designer Drug

Controlled Substance Analogue Ratio Equates to Higher Federal Sentence

By | Drug Crimes

THC Controlled Substance Analogue Designer DrugSynthetic Cannabinoids became popular in the 2000’s when they were first marketed as “legal herbs.” In 2008, chemical analysis revealed that these designer drugs were more than just herbs.  The military, in particular, had a big problem with Spice and K2 (two forms of synthetic marijuana) in the late 2000’s, because they gave users a similar (or greater) high than marijuana, but they were not included in any federal schedule of controlled substances.  As these substances became more popular and widely consumed, the DEA banned their use in 2010 using emergency temporary powers and then later by placing them on Schedule I of Controlled Substance Act.

How Do Controlled Substances Analogues (Designer Drugs) Fit Into the Federal Drug Control Scheme?

 

United States v Malone (5th Circuit Court of Appeals – 2016)

Thomas Malone and his business partner Drew Green owned NutraGenomics Manufacturing, LLC, a distributor of JWH-018, a synthetic cannabinoid substance, also known as “Spice” and “K2” on the street. However, in 2011 federal and state legislatures banned JWH-018 and other similar designer drugs or synthetic cannabinoids. Malone and Green began selling other synthetic cannabinoids, namely, AM-2201, known as “Mr. Miyagi…a mixture of AM-2201 and vegetable material that visually resemble[s] marijuana.” Eventually, Malone and Green ordered the mass manufacture of Mr. Miyagi, selling in bulk to a distributor in Louisiana. Although labeled as potpourri, Mr. Miyagi was supposed to be smoked like marijuana.

Malone Faced Federal Indictment For Possession and Distribution of Mr. Miyagi

A federal grand jury returned an indictment, charging Malone with one count of conspiracy to distribute and possess with intent to distribute AM-2201, and, one count of conspiracy to commit money laundering. Malone decided to take a plea agreement, pleading guilty to one count of conspiracy to distribute and possess with the intent to distribute a Schedule I Controlled Dangerous Substance, a violation of 21 U.S.C. §§846, 841(b)(1)(c), 813, 802(32)(A). The district court accepted Malone’s guilty plea of distributing not less than 1400 kilograms of AM-2201, and ordered a pre-sentence report. A pre-sentence report “PSR” is a report created by a probation office in anticipation of the punishment phase of a trial—the PSR in this case set out to determine “the base offense level using the marijuana equivalency of the most closely related controlled substance to AM-2201.”

Pre-Sentencing Report’s Mathematical Formula Indicated Severe Penalty

The PSR listed Tetrahydrocannabinol, THC, as the most closely related controlled substance to AM-2201. Further, the federal Drug Equivalency Tables indicated that a 1 to 167 ration be applied to convert the 1400 kilograms of AM-2201 into marijuana for the purpose of sentences under the federal Sentencing Guidelines. Using this mathematical equation, it was determined that Malone should be sentenced for 233,800 kilograms of marijuana—the highest level set forth by the Drug Equivalency Tables. At trial, each side put forth an expert witness arguing for and against the use of the THC and the THC ratio set forth in the PSR.

Battle of the Experts at Trial

The Government’s Expert

The Government called Dr. Jordan Trecki to testify that THC is the most closely related substance to AM-2201. Dr. Trecki relied on a scientific study “showing that both THC and AM-2201 bind to the same cannabinoid receptor” in the brain. Second, he testified about a study on rats where the rats could not tell the difference between THC and AM-2201. Third, he discussed AM-2201’s potency and effects on humans. Dr. Trecki told the court that THC and AM-2201 are close in chemical make-up and in effect on the structures of the brain. Dr. Trecki said, however, that there was no scientific basis for the 1:167 ratio.

Malone’s Expert

Malone’s attorney called Dr. Nicholas Cozzi, who stressed the importance of comparison of the two drug compounds—THC and AM-2201—in humans, not just in animals. Dr. Cozzi criticized Dr. Trecki’s analysis because Trecki “combined the results of several studies” and that the studies were not conducted on humans, rather they were animal studies. Dr. Cozzi stated that marijuana, not THC, was the most closely related substance to AM-2201 because it’s smoked and inhaled, like marijuana, and because both substances are consumed for their effect. Dr. Cozzi agreed with Dr. Trecki on one point—that the 1:167 ratio was not rooted in science.

The Big Issue Before the Fifth Circuit

Relying heavily on Dr. Trecki’s expert testimony, the District Court sentenced Malone to 117 months imprisonment and three years of supervised release following prison. The court noted that “the ratios in sentencing guidelines are often arbitrary… [however] the ratios seek to outline the relative harm of certain drugs.” Malone appeals to the Fifth Circuit Court of Appeals.

The Fifth Circuit must determine whether THC really is the most closely-related substance to the controlled substance analogue, AM-2201, and if so, whether the 1:167 ratio is a reasonable conversion for sentencing purposes.

The Fifth Circuit Weighs In

Here, the Fifth Circuit points out that the district court spent a day holding an evidentiary hearing on the equivalency of AM-2201 to other drugs, “it is significant that the district court gave this matter studied attention.” The court notes that each side had the ability to present an expert witness and to cross examine. “Nothing in the record leaves us with…the conviction that a mistake [was made].”

Second, the Fifth Circuit compares AM-2201 and marijuana, disagreeing with Dr.Cozzi’s assertion that both drugs are smoked and inhaled in the same manner. “Marijuana is not consumed way…there is no evidence that a user would smoke a pure form of AM-2201, just as a user would not smoke pure THC.”

Third, the Fifth Circuit says that the district court did not have to “engage in a piece-by-piece analysis of empirical grounding behind…[the] sentencing guidelines.” United States v. Duarte, 569 F.3d 357, 366-67 (5th Cir. 2009). Accordingly, the Court says that only the Commission on sentencing guidelines can change the guidelines, and therefore, does not rule on this issue. The Fifth Circuit agrees with the holding and reasoning of the district court—Malone’s sentence is affirmed.
*This case consolidates two cases, United States v. Malone and United States v. Green.

Passing in Left Lane in Texas

Warrantless Traffic Stop Upheld for Driving in “Passing Only” Lane

By | Drug Crimes, Reasonable Suspicion

Driving in the “Passing Only” Left Lane for Forty-Five Seconds Creates Reasonable Suspicion for Warrantless Traffic Stop in Texas

Passing in Left Lane in TexasJaganathan v. State: Francheska Jaganathan was driving in the left lane of a three-lane Texas highway, just ahead of a police cruiser. Mounted with a dashboard camera, the cruiser accelerated and changed lanes, but stayed behind Jaganathan’s car. A few seconds later, Jaganathan’s car passed a “Left Lane for Passing Only Sign,” yet her vehicle continued in the left lane despite the middle lane being clear of traffic. About forty-five seconds later, the trooper turned on his overhead lights, and conducted a traffic stop of Jaganathan’s car. During the traffic stop, the trooper smelled marijuana, prompting a search of the vehicle. The trooper found marijuana in the trunk, and as a result, Jaganathan was charged with possession of marijuana.

At trial, Jaganathan filed a motion to suppress the evidence, but the court denied the motion. Jaganathan chose a plea agreement where she pled guilty and was placed on deferred adjudication. On appeal, Jaganathan argued that the trooper lacked reasonable suspicion to conduct the traffic stop in the first place. The court of appeals agreed with her, stating that Jaganathan likely stayed in the left lane for safety reasons, that seeing the cruiser may have influenced her decision to stay out of the trooper’s way, and that a few seconds were an insufficient amount of time “to conclude that [Jaganathan] committed a [traffic] violation.”

The Court of Criminal Appeals of Texas disagrees with the court of appeals, citing the reasonable suspicion standard in Texas, and the Texas Transportation Code. The Court of Criminal Appeals also clarifies the issue at hand.

The issue is not whether Jaganathan committed a traffic offense, but whether the trooper had reasonable suspicion to stop the vehicle.

First, “A trooper may make a warrantless traffic stop if the reasonable suspicion standard is satisfied.” Guerra v. State, 432 S.W.3d 905, 911 (Tex. Crim. App. 2014). “Reasonable suspicion exists if the trooper has specific and articulable facts that, when combined with rational inferences from those facts, would lead him to reasonably suspect that a particular person has engaged …in criminal activity.” Abney v. State, 394 S.W.3d 542, 548 (Tex. Crim. App. 2013).

Second, “an operator of a motor vehicle [must] comply with an applicable official traffic-control device, including a sign.” TEX. TRANSP. CODE § 544.004(a); § 541.304(1). “Before a trooper can have reasonable suspicion to believe that a defendant committed the traffic offense of failing to obey a “Left Lane for Passing Only” sign, the trooper must be aware of facts that support a reasonable inference that the defendant drove past the sign before being pulled over.” Abney, 394 S.W.3d at 549.

Here, Jaganathan was driving in the left lane without passing other cars, after driving past a sign that prohibited that conduct. The dashboard camera captured the sign and all of the movements of the car. According to the Court of Criminal Appeals, even if Jaganathan had a defense of necessity—she HAD to be in the left lane for a medical or traffic emergency—the trooper still had reasonable suspicion to conduct a traffic stop. The Court of Criminal Appeals states, “these were only possibilities, and so it was reasonable for [the trooper] to suspect the appellant had violated the law.” Further, the reasonable suspicion standard “accepts the risk that officers may stop innocent people.” Illinois v. Wardlow, 528 U.S. 119, 125 (2000). As a result of the forty-five second traffic violation, the trooper had reasonable suspicion to pull Jaganathan’s car over; and, as a result of smelling marijuana, the trooper was able to search the car without a warrant, resulting in charges against Jaganathan. The Court of Criminal Appeals reversed the judgment of the court of appeals and affirmed the judgment of the trial court.

It is important to note, however, that the ruling has a dissenting opinion. Justice Meyers is adamant that the sign and the Transportation Code supporting it are problematic for the following reasons:

• The Code is unclear on how to comply or not comply with the sign.
• The Code does not state a specific amount of time a driver has to pass and merge back into the non-passing lane.
• The Code does not address passing a string of cars, in the middle lane.
• The Code does not address the need to accelerate to be able to pass, whether intended or unintended (for example if the car being passed speeds up, making passing difficult).
• Proving a driver’s intent to pass another car is difficult.

If you or a loved one are facing traffic violations or drug charges, please contact our office for a free consultation at (817) 993-9249.

Fort Worth warrantless arrest attorneys

Attenuating of the Taint of Unlawful Police Conduct in Drug Crimes

By | Drug Crimes

Fort Worth warrantless arrest attorneysIn Brown v. Illinois, 422 U.S. 590 (1975), the U.S. Supreme Court identified three factors that courts should consider when determining whether the taint of an unlawful arrest was attenuated prior to obtaining a confession:

1. The temporal proximity of the arrest and the confession;
2. The presence of intervening circumstances; and
3. The purpose and flagrancy of the official misconduct (in making the arrest).

In May of 2012, in State v Mazuca, the Texas Court of Criminal Appeals considered the proper application of the “attenuation of taint doctrine,” not to a confession, as in Brown, but to contraband that is seized immediately following an unconstitutional detention or arrest.  The question presented was this:

Will the discovery of an outstanding arrest warrant in the relatively few moments that ensue between the illegal stop and the seizure of the contraband invariably serve as an intervening event sufficient to purge the taint of the primary illegality?

In Mazuca, an El Paso police officer stopped the car in which appellee was a passenger because the officer believed he saw white light (rather than red) emitting from the tail lights.  Photos at trial would later prove that the tail lights were indeed red and that the car was not in violation of the Texas Transportation Code.  During the stop, the officer requested to see appellee’s driver’s license, and quickly learned that appellee had outstanding warrants.  During the course of the stop (after learning about the warrants) the officer seized both ecstasy and marijuana from appellee.  Appellee moved to suppress the contraband as the fruits of an illegal search.  The trial court granted the motion, making, inter alia, the following findings of fact and conclusions of law:

1. The driver of the Mustang did not violate Section 547.322 of the Transportation Code on December 11, 2008.
2. The Police Officers did not have probable cause or reasonable suspicion to perform a traffic stop on that date.
3. The arrest warrants of the Defendant did not purge the taint of the illegal stop due to the flagrancy of the police action, the close temporal proximity and the fact that no Miranda warnings were read.

The 8th Court of Appeals (El Paso) affirmed.  The CCA considered the Supreme Court precedent, as well as the Texas Court of Appeals opinions in coming up with the rule below:

When police find and seize physical evidence shortly after an illegal stop, in the absence of the discovery of an outstanding arrest warrant in between, that physical evidence should ordinarily be suppressed, even if the police misconduct is not highly purposeful or flagrantly abusive of Fourth Amendment rights. Under this scenario, temporal proximity is the paramount factor. But when an outstanding arrest warrant is discovered between the illegal stop and the seizure of physical evidence, the importance of the temporal proximity factor decreases. Under this scenario, the intervening circumstance is a necessary but never, by itself, wholly determinative factor in the attenuation calculation, and the purposefulness and/or flagrancy of the police misconduct, vel non, becomes of vital importance.

While the rule sounds simple enough, the CCA’s application of the rule to the facts of the case is a bit troubling.  The CCA reversed the Court of Appeals, and held that…

[T]he behavior of the arresting officers, although clearly unlawful at the outset, was not so particularly purposeful and flagrant that the discovery of the appellee’s outstanding arrest warrants may not serve to break the causal connection between the illegal stop and the discovery of the ecstasy in the appellee’s pants pocket, thus purging the primary taint.  We hold that the trial court erred to conclude otherwise.

The opinion in this case seems a logically disconnected from the ultimate outcome. Apparently, some of the judges agree.  Here’s what Judge Meyers had to say in his dissenting opinion:

The result fashioned by the majority opens the door for police to ignore the probable cause requirement and make traffic stops without adequate grounds for doing so.  The majority’s analysis of the weight of the Brown factors may be correct, but the result discounts the trial court’s findings as to the credibility of the officers.

Judge Johnson dissented as well, writing:

I would hold that the court of appeals correctly recognized that, without the highly improper traffic stop, the officers could not have learned appellee’s name, found active warrants, or searched him and recovered contraband, all fruits of the poisonous tree.  We, like the court of appeals, should “afford almost total deference to a trial court’s determination of historical facts that are supported by the record, particularly when such findings are based on an evaluation of witnesses’ credibility and demeanor” and affirm its suppression of the evidence that was obtained because of the improper traffic stop.  I respectfully dissent.

If you were the subject on an unlawful arrest on a drug crimes case, contact the Fort Worth, Texas drug crimes defense lawyers at Barnett Howard & Williams PLLC today.  (817) 993-9249.

Criminal Defense Traffic SIgn

Where’s Your Sign? No Traffic Offense if Road Sign Not Visible

By | Drug Crimes

Criminal Defense Traffic SIgnIn Abney v. Statethe Texas Court of Criminal Appeals considered whether an officer had reasonable suspicion to initiate a traffic stop when a vehicle was driving in the left lane of a road without passing.  There was a road sign that prohibited driving in the left lane without passing, but it was located over 20 miles away from where the Appellant was pulled over.

As tends to happen, the police officer found marijuana during the traffic stop. At trial, and on appeal, the Appellant claimed that he did not commit a traffic violation because the road sign was not anywhere near where the stop occurred.  The trial court and 5th Court of Appeals (Dallas) overruled this argument.  The CCA, on the other hand found it meritorious.

The Transportation Code certainly indicates that if there is a sign present that says the left lane is for passing only, then it is a traffic offense to travel in the left lane when not passing another vehicle. Section 544.004(a) states that an operator of a vehicle shall comply with an applicable official traffic control device such as a “left lane for passing only” sign. Without such a sign present within a reasonable distance of the traffic stop, there is no offense.

The CCA reversed the Court of Appeals and held that the officer lack reasonable suspicion to justify the traffic stop.  The evidence should have been suppressed at trial.

Conspiring With a Government Informant

By | Conspiracy

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

Conspiring With a Government InformantUnited States v. Delgado, U.S. Courts of Appeals for the 5th Circuit (Federal)

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

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

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

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