The Odor of “Unburnt Marijuana”

January 29, 2013

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

What police smell in a car is important.  Certain drugs — Marijuana in particular — have such a distinctive odor that the odor in and of itself can provide an officer probable cause to search a motor vehicle in Texas.

Burnt marijuana has such a distinctive odor which is replicated through training at the police academy.  In class they are able to smell either a small amount of burned marijuana or a tablet designed to replicate the smell (if they didn’t already learn the smell in high school or college).

Some patrol officers will tell you they can smell burned marijuana in a car with rolled up windows, in a park a mile away, or in an airtight cabin on a distant hill with steel walls.  Who am I to say this isn’t true?

It seems like more and more frequently, though, police are claiming the ability now to be able to smell the odor of “unburnt marijuana” as well as “burnt marijuana.”

This claim is disturbing because there is little, if any, scientific proof unburnt marijuana is so distinctive a smell it can be accurately diagnosed with any regularity when not in a mass quantity or by a person in close proximity.  Translation — it’s a green-light for police to profile teenagers, minorities, or people who simply seem to be nonconformists.

Why This is Such a Frustrating Problem

It’s incredibly difficult to cast doubt on an officers claim to be able to smell fresh or unburnt marijuana.  This would most likely be addressed in a motion to suppress to eliminate the evidence arguing the search lacked probable cause.  In that event a police officer will almost certainly tell the judge based on his (years and years and years) of street-smart experience, he’s developed a magic nose for this stuff and he confidently asserts he smelled it your car.  Whether the officer ultimately found a baggie with stems and seeds in the console, or a garbage bag full of fresh marijuana in the trunk, chances are a judge is going to believe them.

In cross examining a self-assured officer who claims this ability, scientific studies showing he only thinks he smells it are probably only admissible where (1) we have an expert of our own on the topic; or (2) the officer recognizes the article as an authority (good luck with that!)

Other options include tough cross examination on the existence of wind, gas fumes, or other odors on the roadway… but again, in the face of a confident officer (who actually found some marijuana in the car in question), showing his testimony is not credible is tough even for the best of cross-examiners.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation, you should contact an attorney directly.  Communications through this forum are not privileged.


Why Police Do Illegal Searches

January 16, 2013

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Police do illegal searches for one simple reason.  They think they’re dealing with a criminal in a classic struggle of good versus evil.

It is literally life imitating art.  We all grew up watching shows about good versus evil like the “Superfriends” huddling together to defeat “The Legion of Doom,”

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or the Lone Ranger fighting injustice, or even shows like Perry Mason where even a wrongful accusation is so blatant as to be obvious injustice.

An illegal search is simply no different.  The police officer has convinced themselves based  on a mix of objective evidence and highly subjective criteria they have uncovered a criminal in the midst of committing a crime.  Sometimes they’re right and sometimes they’re not.

Terry vs. Ohio is the classic Supreme Court case which discusses the differences between officers using “hunches” or supposition instead of using concrete evidence.  It has long been recognized hunches, guesses or other manufactured probable cause go hand in hand with police profiling.

Psychological Studies Recognize People’s Views of Themselves Affects Their Behavior.

People tend to view themselves differently than they view others.  They tend to view themselves as objective, unbiased, and generally more positively.  Additionally, people tend to over-estimate how much we can learn about another during a brief encounter.  Practically, then, it is easy to see where a self-assured officer convinced he or she has uncovered a crime which only they alone can sense pushes, and pushes, and pushes a situation to the point where a search becomes illegal.

How It Works In Reality

A police officer who has pulled over a group of highly anxious teenagers in a beat-up car at 1 a.m. on a Saturday morning is simply more likely to suspect drug or alcohol involvement than if he were to pull over a mom in a minivan at 3:00 p.m. on a Wednesday.

In the former situation, experienced defense lawyers are naturally skeptical of a police report which tends to craftily bend, twist, or slant the officer’s observations which try to convert subjective beliefs into concrete facts justifying a search.

For example, it’s not uncommon to read police reports which claim a suspect “was anxious.”  Anxiety may be present for countless reasons in a suspect yet a police report will often continue, “in my training and experience it is common for drug dealers to be nervous when confronted by police.”  While this is probably true to some extent — its simply pure guesswork.

Other extreme examples I’ve come across include where an officer claimed to have observed the suspect’s heart beating through a t-shirt (which in the officers experience indicated guilt) and when Defendant stepped out of the vehicle — he did so to distance himself from drugs in his car which is a common tactic for drug users (based on the officer’s training and experience).

One last claim I am seeing more and more often is an officer claiming the ability to smell unburnt marijuana — often outside the vehicle or even in containers or baggies.  While police are specifically trained to detect the distinct odor of burnt marijuana — there is virtually no proof the ability to detect unburnt marijuana is anything better than a guess.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation you should consult an attorney directly


Getting a Marijuana Arrest off Your Record

October 26, 2012

By Collin County Criminal Defense Lawyer

(972) 369-0577

www.rosenthalwadas.com

A marijuana arrest doesn’t look good on a resume.  There are obviously much worse charges someone may face — but this doesn’t mean a drug arrest like this should be taken lightly.  It can result in the loss of a driver’s license or even in the loss of financial aid.

What we do in these cases — as with almost all criminal charges — is we plan backwards.  We know our goal is almost always going to be a non-disclosure or expunction, so we do our best to position the final result to have our clients be eligible for non-disclosure or expunction.

Fortunately there are many different ways to be eligible for non-disclosure or expunction.  We thoroughly review the evidence in the case to make sure the state has a ‘leg to stand on’ in bringing the charges.

Merely because someone is found in the same car doesn’t mean they’re guilty of possession of marijuana.  The law requires the state to prove the defendant had “actual care custody control or management” of the contraband in question.  Also, there are frequently questions about how the drugs were attained by the police.  Remember, police often target younger people or people who may dress or act differently.  Sometimes they can be far too aggressive or manipulative in the police encounter and a judge may declare the arrest improper.

Another way we can attempt to clear a record is to have the charges either reduced or to seek invitation into the district attorney’s office pre-trial diversion program.  This requires us to be able to let the prosecutors know our client otherwise has a clean history and can enter a program which helps them if they have drug issues.

The key in making sure we can help someone clear their record is double and triple checking our facts, having a command of the law, and having the know-how to make your case to a judge, jury or prosecutor!

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.  Contacting the attorney through this forum does not create an attorney-client relationship and communications sent through this forum are not confidential nor privileged.

 


What is a Motion to Suppress?

December 28, 2011

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

A motion to suppress is a challenge to the legality of how evidence was attained.

In Texas and the United States we have what is known as the “exclusionary rule.”  This rule means where a court finds evidence was attained illegally – it cannot be used for any reason against the accused.  The exclusion (or suppression) of evidence often makes it impossible for the prosecution to prove one or more elements of the crime — which means they often lose the entire case based on a successful motion to suppress because they will fail to meet their burden of proof at trial.  Other times, a successful motion to suppress will exclude a damaging admission, confession or other piece of evidence which does not win a case for the defendant but makes the case much more difficult on the prosecution.

What Makes an Arrest or Search Illegal?

It depends on the situation.  In an automobile stop, the stop is normally bad where the driver didn’t commit any offense which allowed the officer to pull them over in the first place.  Searches in automobiles can also be bad where the officer searches a car or individual without consent or probable cause that some crime has been committed within his presence.

Home searches have extremely great protection.  Remember the constitutional basis for the 4th amendment in the first place was to prevent American soldiers from rummaging through people’s houses the same way the British had done prior to the revolution.

Search warrants can be held to be illegal if the application for the warrant was not done properly and fails to establish probable cause.

Also, if the State broke some other law in attaining evidence then the evidence can be suppressed as well.  A common example is where the State doesn’t follow protocol on a breath test or blood draw and can’t use the result at trial.

The situations where searches, arrests, or other types of evidence can be thrown out are countless.  Each is truly it’s own unique snowflake and this discussion barely scratches the surface of suppression.

Does This Mean the Police have Committed a Crime Against Me?

Not really.  It’s more like an ‘illegal procedure’ penalty in football.  It sounds worse than it actually is for the cop.  Most suppression cases arise because the officer was being (1) overly-aggressive; or (2) was just not thinking.

You have to remember a handful of things about police.  First is they profile and target certain people.  The good news is that it is rarely based on race — but it doesn’t make it a whole lot better.  Police tend to target, for example, teenagers/ younger adults, people driving beat-up cars, and frankly — people who look like thugs.

Second, society has glorified police acting on ‘hunches’ even though the law requires the opposite — that if the police are going to act they have to have specific articulable facts which justify their actions.  Not only does the law require there to be ‘articulable fact,’ but study after study shows that an officer’s ‘hunch’ is generally no more reliable than flipping a coin.

When you combine profiling of someone in a high-target group with an officer acting on ‘hunches’ instead of fact — you tend to get a situation ripe for a motion to suppress.

Examples of How a Motion to Suppress Works

The best way to demonstrate how a motion to suppress works is through practical examples.

Bad Stop Eliminates Entire Case:  

DWI arrest where blood draw ultimately shows defendant had o.15 blood alcohol concentration.  Officer stopped defendant for driving slowly, weaving within lane, and crossing solid white line.  Court held defendant committed no traffic violations because (1) weaving within one’s own lane is not a crime where no lane was crossed; (2) driving slowly does not constitute a crime in and of itself; and (3) Defendant’s car crossed solid white line exiting freeway in response to being pulled over.  The officer’s decision to stop had already been improperly made.

Result:  All facts attained from stop were suppressed.  Therefore State could not prove identity of driver or that driver was intoxicated.  Case dismissed by prosecution.

Bad Search Eliminates a Key Element

Marijuana case where police get a report of a ‘disturbance’ in the middle of the day at an intersection in a high crime neighborhood.  Nature of the ‘disturbance’ unknown but description of participants were given – and description was somewhat common.  Officer stops defendant several blocks away walking on a street (towards the area of the disturbance).  After a brief conversation, the officer begins a pat-down search of the defendant who admits he’s got marijuana in his pocket which is ultimately found.

Court held: (1) the report of a ‘disturbance’ too broad to allow a general search of all people matching the description in the vicinity for all purposes; (2) the encounter between the officer and the accused was originally voluntary but turned into a detention when the officer began to frisk Defendant without permission; (3) by the time Defendant admitted to the drugs, the illegal detention without probable cause had already commenced — therefore the admission and the marijuana themselves were not admissible.

Result:  Not Guilty verdict because no evidence defendant was in possession of marijuana (the corpus dilecti of the crime).

Bad Search Warrant Eliminates Blood Result

Defendant arrested for DWI after car accident.  Officer’s conduct field sobriety tests and determine defendant was intoxicated.  Officers apply for search warrant from a judge on call.  Judge grants the search warrant and the defendant is shown to have a blood alcohol concentration of 0.17 at the time of testing.  Court held that search warrant failed to contain the time of driving and as such, the warrant was insufficient to demonstrate that evidence of a crime would be present in defendant’s blood specimen.

Result:  Defendant stood trial, however, state barred from showing or referring to blood draw or blood result.

In Summary

Motions to suppress are hard to understand.  They can be an over-looked and efficient way to defend cases of all types.  Hopefully after this discussion today you have a bit more understanding.

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  Legal advice about any topic should be discussed directly with an attorney.  Contacting the attorney through this forum does not create an attorney-client relationship.  Communications sent through this forum are not confidential.


Texas Possession of Marijuana Common Legal Issues

June 22, 2010

Texas Penal Code Section 481.121 makes the possession of marijuana a criminal offense.  Sounds simple, right… if there were drugs where you were and the police found them then you’re guilty, right?  Not exactly.  Remember, not only does the state have to prove beyond all reasonable doubt every element of this charge, but they may also have to prove whatever mechanism the used to attain the marijuana (the search) was lawful.

What is the Legal Definition of Possession?

Texas Penal Code Section 1.07(39) defines “possession” as “actual care custody, control or management.”  Proving this for the prosecution is harder than it may seem.  In other words, it’s not enough to prove that someone was merely in close proximity to the drugs.  The state must prove that the accused somehow ACTUALLY took some action to control the paraphernalia in question.  Take for example where a car with 4 passengers is pulled over.  A passenger in the back seat has marijuana in his pocket — gets nervous — and tosses the marijuana underneath the driver’s seat.  After an eventual search of the car – let’s assume the driver gets charged with marijuana possession.  The prosecution must still prove at trial that the driver exercised actual care, custody, control, or management of the marijuana in question.  If the only evidence is that the drugs were found near the driver, the driver in this scenario may be acquitted of possession of marijuana.

Were the Police Allowed to Search?

That is always a question which must be reviewed in great detail.  Everyone within our country’s borders are free from unreasonable searches and seizures based on the 4th Amendment to the U.S. Constitution.  Your remedy from an illegal search or seizure is through what is known as the exclusionary rule.  That rule blocks anything and everything attained illegally by police or the government from coming into evidence at trial.  With no evidence at trial, the prosecution loses because they have the burden of proof.

Though I could write about this all day, there are two main kinds of searches.  With or without a search warrant.  A search can be as simple as a pat-down by and officer or a full scale digging of a car or house.  Most searches are without a warrant and the law actually presumes those searches to be unreasonable.  The state must prove their reason to search fits within an exception by clear and convincing evidence if the defendant challenges the search.  A search warrant is presumed reasonable, but is more difficult and time consuming for the police to attain.  You can still challenge a search warrant if it was done improperly.

The word “illegal” with searches tend to throw people too.  Think of it more like an “illegal procedure” penalty in a football game and not some action that will get the police officer thrown in jail himself for doing it wrong.

Judges can and do frequently throw out illegal searches for drugs, marijuana, and other paraphernalia whether they are from cars, houses, and even illegal searches in schools.

Punishment Ranges — What Level Offense is it in Texas?

The punishment for possession of marijuana depends on the amount alleged to have been possessed though other surrounding circumstances can kick up the punishment range such as possession a school zone or possession with intent to distribute.  Otherwise the punishment ranges are as follows:

A usable quantity but less than 2 ounces is a class b misdemeanor;

More than two ounces but less than four is a class a misdemeanor;

More than four but less than five is a state jail felony;

More than five pound but less than 50 pounds is a third degree felony;

More than 50 pounds but less than 2,000 pounds is a second degree felony;

Over 2,000 pounds is a first degree felony.

Jeremy F. Rosenthal, Esq.

(972) 562-7549

*Jeremy Rosenthal is Board Certified in Criminal Law by the Texas Board of Legal Specialization and licensed by the Supreme Court of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any specific situation you should contact an attorney directly.