The Odor of “Unburnt Marijuana”

January 29, 2013

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(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.

Getting a Marijuana Arrest off Your Record

October 26, 2012

By Collin County Criminal Defense Lawyer

(972) 369-0577

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 Mistrial?

April 20, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

A mistrial is a declaration the judge makes to immediately halt and end a trial in progress.  Normally a mistrial is declared when a circumstance arises that taints the process beyond repair.  In certain situations, a mistrial can also result in an acquittal of a criminal defendant due to the concept of double jeopardy, but most merely result in the case being reset to a new trial status as if the mistrial had never taken place.

The circumstances which could cause a mistrial are seemingly endless.  More common reasons for mistrials are hung juries (meaning the jury couldn’t decide a case unanimously after a lengthy deliberation), or what is known as a “busted panel” which means after jury selection there were not enough qualified jurors to form a complete jury.  Other common reasons are improper arguments by a party, unexpected or improper comments from a witness, and on some occasions juror misconduct.

A judge has wide discretion to declare a mistrial if there is a “manifest necessity” to declare a mistrial.  Mistrials can be granted sua sponte (the judge declaring the mistrial without either party asking for it), or by either of the parties.

It is legally complex in situations where the Defendant requests a mistrial based on a prosecutor’s conduct during the trial as to whether double-jeopardy will bar retrial.  This is because, as a general rule, courts consider requesting a mistrial as a waiver of double-jeopardy.

The standard today for whether a mistrial requested by the defense should also cause a double-jeopardy bar is from the U.S. Supreme Court case of Oregon v. Kennedy, 456 U.S. 667 (1982) which holds that where the prosecutor baits or goads the defense into requesting a mistrial — then the defendant doesn’t waive double jeopardy by requesting a mistrial.

The easiest way to think about a mistrial triggering a double jeopardy dismissal is like an intentional foul in a basketball game.  One team has the ball and has a clear path to the basket.  In order to prevent an easy basket or layup, the other team fouls.  A prosecutor, thinking they have lost the case, makes a flagrant comment, asks an inappropriate question, or takes some other action to force defendant to request a mistrial so they can have another shot at prosecuting the defendant.  Courts in this situation can end the trial right there and bar the state from re-prosecution (essentially acquitting the accused).

*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.  Posts made to this blog and/or communications sent through this forum are not confidential nor subject to the attorney client privilege.  Contacting the author through this forum does not create an attorney-client relationship.

Video of a Textbook Illegal Search

April 6, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

Today I’m posting a video created by a guy driving home from a Star Trek convention with a buddy who was stopped by a police officer for an alleged minor traffic offense.  He and his friend spend the better part of an hour being harassed, manipulated and badgered by the officer.  It’s a textbook example of when an unsuspecting fly gets tangled in the web of a nasty spider and can’t get away.

You can watch the video here.

As a Criminal Defense Lawyer having dealt with many bad searches, here are a few things I think are important to point out about this stop/ video.

Situations Like This Rarely Come to Light in the First Place

The reason this type of harassment of citizens never really comes to light is because these guys are completely innocent.  They’ve got no reason to ever acquire, watch, or publish this video.  In fact, most people who go through something like this either just want to forget that it ever happened or were so intimidated by the experience that they simply walk away.

Another reason why this situation is seldom exposed is because when an officer does profile correctly and find marijuana, cocaine or methamphetamine — the citizens regard all the singing, dancing, and acting he did to get into the car as “great police work.”  Obviously what is ultimately found, if anything, doesn’t suddenly validate the illegality of the search.

This is an Extreme (but not unheard of) Scenario

This situation is extreme.  It’s very common to see stops for very thin reasons, and very common to see cops play delay games like “the computer is slow today”.  Getting a k-9 to give a false hit (if that’s really what happened) would be highly uncommon, and simply making up a reason altogether for the stop (if that is what really happened) would also be well out-of-bounds.  Police often reach or stretch for reasons to detain someone, but normally it’s based on at least a smidgen of good faith.

Why this Search Was Illegal

Courts have long struggled with these types of police games.  In United States v. Shabazz, 993 F.2d 431 (5th Cir. 1993) citing United States v. Guzman, 864 F.2d 1512, (10th Cir. 1988) the Fifth Circuit stated:

“An officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. In order to justify a temporary detention for questioning, the officer must also have reasonable suspicion of illegal transactions in drugs or of any other serious crime.”

Also, it’s a well known game to wait for the arrival of a K-9 unit in the event the detaining officer suspects drugs.

*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 sent through this blog are not confidential, privileged, nor do they create an attorney-client relationship.

5 Reasons Not to Testify in Your Own Defense

October 1, 2011

By Collin County Criminal Lawyer Jeremy Rosenthal

(972) 369-0577

The U.S. Constitution and Texas Code of Criminal Procedure 38.08 guarantee a person on trial the right to testify in their own defense.  38.08 reads, “Any defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause.”

The vast majority of experienced criminal defense lawyers will advise their clients against testifying in the vast majority of cases.  There are many reasons why defense lawyers think this way and here are just some:

1.  It is virtually impossible to convince someone you are innocent of a crime.

We assume that people listening to us are open minded and can be persuaded with our honest nature and straight-forward approach — but like most assumptions, it’s wrong much of the time.  Our founding father’s knew a lot about human nature and our natural rush to judge people.  They knew that people rarely believe someone that claims they are innocent, so why even bother with the charade?  It only endangers the citizens more to have a star chamber system of government.  Putting the burden of proof on the government and forcing them to prove their case is simply the fairest way to have a trial.

2.  There is no “right way” to behave when you’re testifying.

Obviously you should be yourself when if you are testifying, but you have to consider the audience.  In act 3, scene 2 of Hamlet, Queen Gertrude says about someone professing their innocence, “…The lady doth protest too much, methinks.”  This just means that if you assert your innocence very aggressively — people think you’re lying.  And here’s more bad news… if your voice shakes when you testify — people also could think you’re lying.  People an also think you’re lying if you make too much eye contact, make too little eye contact, look at the floor, look at the judge, look at someone in the audience, look at your lawyer, look at the alleged victim (if any) and on and on and on.  The bottom line is that professing your innocence can work — but it’s usually a lose-lose situation.  Psychologists teach us that not even the best law enforcement personnel around can detect lies by looking at someone’s facial expressions.  Jurors are even worse!  What one person was raised to believe is a truthful expression is a lie to someone else — and vice versa.

3.  Prosecutors have a built-in cross examination advantage.

They can accuse you of lying on the witness stand to beat the rap!  Not only that, but prosecutors know what they’re doing and can ask “do you still beat your wife” questions to which there is no right answer.  You shift the burden from the prosecutor to yourself and the jury is no longer weighing the merit’s of the state’s case — they’re evaluating you.  Testifying in your own defense can be an all or nothing gamble.

4.  Juries Really Don’t Hold it Against You.

Juries are actually very good at not holding it against you if you don’t testify.  Most courthouses have videos they show the juries which discuss someone’s right to remain silent before they get into the courtroom.  Then the trial judge normally goes over the right not to testify.  Then most prosecutors go over the right not to testify for no other reason than they want to seem fair.  Then your lawyer gets to go over your right not to testify during jury selection and disqualify anyone that demands to hear your side of the story.  Jurors have this singular point drilled into their skulls all day and all week long.  My experience after trials when visiting with jurors is that they’re actually quite good at compartmentalizing and ignoring the Defendant if they didn’t testify.

5.  To limit damaging testimony.

You always have to testify honestly and no lawyer should ever tell you otherwise nor would any good lawyer imply that it’s OK for you to bend the truth.  If the truth is that you’re guilty then you obviously shouldn’t testify and it’s a wiser strategy to force the prosecution to prove your guilt beyond all reasonable doubt.  Also, if you have difficult facts to explain or some things in your history would look bad to a jury — then staying off the witness stand may be a good idea as well depending on your case.

When You Should Testify

When your lawyer tells you!  If I advise a client to testify, it is normally because there is some piece of evidence which is important to our theory which I cannot get before the jury any other way than through my client.  Also, many affirmative defenses are very difficult to legally raise with out testifying on your own behalf.

Listen to your lawyer’s advice with regards to testifying in your own defense.  They will clearly have a good understanding of the facts in your case and the experience to know whether it’s the right choice.

*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 post does not constitute a privileged communication and an attorney-client relationship is not established by any such communication.