Articles Posted in Drug Offenses

burglaryThe Fourth Amendment prohibits police from searching a person or their premises, or from seizing their property, without a warrant issued by a court upon a showing of probable cause. The War on Drugs, which began in the 1970s, considerably expanded law enforcement’s powers, and laws passed in the last 15 years as part of the “War on Terror” expanded them even further. Now, tactics that were originally authorized for counter-terrorist activities are primarily used in drug enforcement operations. A bill passed by Congress in 2001 authorized Delayed Notification Search Warrants (DNSWs), also known as “sneak and peek” warrants. Civil rights advocates charge that DNSWs allow law enforcement to engage in what are essentially legalized burglaries of private residences, raising serious Fourth Amendment concerns.

When executing a search warrant, officers must normally follow the “knock-and-announce” rule, meaning they must identify themselves as police and state their purpose before forcibly entering a residence. After executing a warrant, officers must provide the owner of any seized property with a copy of the warrant and a receipt for the property. Fed. R. Crim. P. 41(f)(1)(C). A court may issue a “no-knock” warrant when officers allege exigent circumstances that risk the destruction of evidence. This type of warrant sometimes results in a show of overwhelming force by police, but some courts have begun to restrict this practice on constitutional grounds.

In October 2001, Congress passed the USA PATRIOT Act. The law’s stated purpose was to “provid[e] appropriate tools required to intercept and obstruct terrorism”—giving it the title “PATRIOT” as an acronym. It established procedures for the issuance of DNSWs, which allow the delay of any required notice to the owner of the premises to be searched for “a reasonable period” after the execution of the warrant. Pub. L. 107-56 § 213 (Oct. 26, 2001), 115 Stat. 286; 18 U.S.C. § 3103a(b). A DSNW should “prohibit[] the seizure of any tangible property…except where the court finds reasonable necessity for the seizure.” Id.

Continue reading

houston-texas-usa-building-1620695Legal restrictions on marijuana seem to be loosening all over the country, at least at the state level. Under both Texas and federal law, though, marijuana remains a highly restricted controlled substance. While public support for lessening restrictions is reportedly growing in Texas, the Texas Legislature does not seem likely to change the law any time soon. The state’s most populous county, however, has initiated a program that changes how that county’s prosecutors will handle minor marijuana possession cases. According to the Harris County District Attorney, the purpose of the Misdemeanor Marijuana Diversion Program (MMDP) is to reduce the burden on both the criminal justice system and the public of prosecuting thousands of people for nonviolent, minor marijuana offenses. The DA can assert prosecutorial discretion in deciding how to allocate resources, but this has not stopped critics from claiming that she is ignoring the law.

More than half of the states, as well as the District of Columbia and other territories, allow medical marijuana use to some extent. Texas is on this list, although it permits only very limited use. A handful of states have legalized the possession of marijuana in small amounts for recreational purposes. Texas is not on this list. Possession of two ounces or less of marijuana is a Class B misdemeanor, punishable by a fine of up to $2,000, a maximum jail sentence of 180 days, or some combination thereof. Tex. Health & Safety Code § 481.121(b)(1), Tex. Pen. Code § 12.22. Possession of more than two ounces, but not more than four ounces, is a Class A misdemeanor, which carries maximum penalties of a $4,000 fine and one year in jail. Tex. Health & Safety Code § 481.121(b)(2), Tex. Pen. Code § 12.21.

According to the MMDP policy statement issued by the Harris County DA, the county prosecuted over 100,000 people for misdemeanor marijuana offenses over the past ten years. This reportedly cost more than $100 million, but “produced no tangible public safety benefit for the people of Harris County.” Instead, the DA states that the investigation and prosecution of misdemeanor marijuana cases took up police and county resources, including officers’ time, crime lab resources, space in county jails, and court dockets, “that should be spent bringing serious criminals to justice.”
Continue reading

tea leavesPolice are generally not permitted to search a person or their premises, or to seize their property, unless they obtain a warrant from a judge after demonstrating probable cause to believe a search will yield evidence related to a criminal investigation. The “War on Drugs” has led to some highly creative methods of alleging probable cause, as demonstrated by a civil lawsuit filed against a county sheriff’s department for civil rights violations under 42 U.S.C. § 1983. A judge ruled in late 2015 that the defendants had demonstrated probable cause to justify the 2012 raid on the plaintiffs’ home, which turned up no evidence of drugs whatsoever. Harte, et al. v. Bd. of Comms. Of Johnson County, Kan., No. 2:13-cv-02586, mem. Order (D. Kan., Dec. 18, 2015). This is not a final order regarding probable cause but instead a summary judgment order holding that probable cause was enough for the defendants to avoid civil liability.

The Fourth Amendment to the U.S. Constitution states that a search warrant requires probable cause, “supported by Oath or affirmation,” along with a description of “the place to be searched, and the persons or things to be seized.” Police are generally limited to searching the areas identified in a warrant for specific contraband or other items. An officer cannot expand the scope of a search without obtaining an amended warrant, unless an exception to the warrant requirement applies. Anything seized by police that is outside the scope of the warrant and that does not fall under an exception may not be used against the defendant.

Sheriff’s deputies in Johnson County, Kansas, reportedly dressed in SWAT gear, executed a search warrant on the Harte plaintiffs’ home in late April 2012. The warrant allowed them to search for marijuana and drug paraphernalia. Two hours of searching the residence failed to yield any illegal drugs or drug paraphernalia, and no charges were filed. The plaintiffs were reportedly both former employees of the CIA, and they undertook to find out why their home had been raided by heavily armed officers.

Continue reading

syringeAccidental drug overdoses are a major cause of death in the U.S. The class of drugs known as opioids, which includes many prescription painkillers, is reportedly responsible for most of the increase in overdose deaths in many parts of the country. Since these drugs are legally categorized as controlled substances, people may hesitate to seek medical attention for themselves or others, for fear of arrest and criminal charges. More than half of the states in the U.S. have enacted “9-1-1 Good Samaritan” laws, which shield people from criminal liability for minor drug possession if they go, or take someone, to a hospital or another medical facility because of an overdose. Texas is not among the states that have enacted this type of law, but even in some states that have, some police departments are reportedly simply finding different ways to charge people with criminal offenses.

Texas law establishes penalties of varying levels of severity for the possession of a controlled substance (POCS), depending on the type and amount of controlled substance involved. See Tex. Health & Safety Code § 481.115 et seq. A person is not subject to criminal liability if they have a valid prescription for the controlled substance in their possession, unless they have far more in their possession than is authorized by their doctor. Texas does not have many other exceptions from liability for POCS, and it does not have a 9-1-1 Good Samaritan law.

At least 37 states and the District of Columbia have enacted 9-1-1 Good Samaritan laws. Ohio’s POCS statute, for example, does not apply to a person who, “in good faith…seeks or obtains medical assistance for another person who is experiencing a drug overdose,” or “who experiences a drug overdose and…seeks medical assistance for that overdose.” Ohio Rev. Code §§ 2925.11(B)(2)(a)(viii), (B)(2)(b). The purpose of this exception is to encourage people to call for help or go to the hospital in the event of an overdose.

Continue reading

AyahuascaThe federal system of drug laws in the U.S. is very simple and straightforward with regard to some substances and extremely ambiguous for others. Drugs categorized in Schedule I of the Controlled Substances Act (CSA) are effectively banned for any and all purposes. Organizations may apply to the Drug Enforcement Administration (DEA) for a religious exception, which would allow the use of certain scheduled substances for specific religious purposes. Ayahuasca, also known as yagé, is a tea made using plants from South America that contain a psychedelic compound. It is gaining popularity in the U.S. In late 2015, an organization claimed to have obtained the legal right to use ayahuasca in religious ceremonies, but the DEA appears to have had other ideas. The organization halted its activities, and the legal status of ayahuasca remains unclear.

The CSA categorizes controlled substances in five schedules, with Schedule I being the most restricted. This includes a psychedelic compound called N,N-dimethyltryptamine, or “DMT.” 21 U.S.C. § 812(c)(I)(c)(6), 21 C.F.R. § 1308.11(d)(19). Ayahuasca is a tea made using leaves from two plants:  a vine commonly known as ayahuasca and a shrub known as chacruna. Ayahuasca leaves contain compounds that interact with naturally occurring DMT in chacruna, resulting in a tea that people can drink in order to feel the effects of the DMT. The ayahuasca plant itself is therefore not illegal under the CSA, but the chacruna plant, and any product that includes chacruna leaves, would be considered a Schedule I controlled substance.

The DEA can grant exceptions to its regulations after receipt of a written petition. 21 C.F.R. § 1307.3. The agency’s director has broad discretion to grant or deny such a request. The Religious Freedom Restoration Act (RFRA) prohibits the government from “substantially burden[ing] a person’s exercise of religion” without demonstrating the measure is the “least restrictive means” of pursuing a “compelling governmental interest.” 42 U.S.C. § 2000bb-1. The U.S. Supreme Court ruled in favor of a church in a RFRA case involving ayahuasca, holding that the federal government’s seizure of the tea did not serve a compelling government interest. Gonzales v. O Centro Espirita Beneficente União do Vegetal, 546 U.S. 418 (2006).

Continue reading

Rates of opioid addiction and of deaths resulting from accidental overdoses have increased substantially in many parts of the country. The statistics suggest that it has not reached “epidemic” levels in Texas, but it is still a vitally important issue. The government, at the state, local, and federal levels, must balance the enforcement of drug laws and the promotion of addiction treatment. The impact of this balancing act varies significantly from one location to another and over time in any single location. Texas continues to pursue enforcement quite aggressively but is also committing resources toward treatment. At the federal level, a recent executive order from the White House establishes a commission to study federal drug enforcement efforts, but it indicates no drastic change in policy. Meanwhile, the government’s rules regarding opioids, in a purported effort to combat the rising addiction and overdose rate, may be harming patients dealing with chronic pain.

Hydrocodone-paracetamol-5-500The term “opioid” can refer broadly to drugs derived from the opium plant, such as morphine, and synthetic drugs that produce similar effects, such as oxycodone and hydrocodone. Opioids are commonly prescribed for pain relief after injuries and surgeries, as well as in longer-term pain-management regimens. Most opioids are classified as Schedule II controlled substances. Like Schedule I substances, they have “a high potential for abuse,” but Congress and the Drug Enforcement Administration (DEA) have determined that Schedule II substances have some “currently accepted medical use.” 21 U.S.C. § 812(b). The opioids mentioned above, such as morphine and oxycodone, are classified in Schedule II, along with codeine and others. 21 C.F.R. § 1308.12(b)(1).

According to the Centers for Disease Control and Prevention (CDC), over 33,000 people died in 2015 due, in some part, to opioids. The number of annual overdoses has reportedly quadrupled since 1999. The state with the highest death rate from overdoses in 2015 was West Virginia, with 41.5 per 100,000 people. The rate in Texas was much lower and actually decreased by over three percent from the previous year. New CDC guidelines issued in 2016, in cooperation with the DEA, prioritize non-opioid therapies. These guidelines are not mandatory for physicians, but they have reportedly led to a significant decrease in prescriptions for pain patients, perhaps by creating apparent incentives for doctors to avoid prescribing opioids whenever they can.

Continue reading

LingonberriesLaws addressing the possession and sale of marijuana may vary significantly among states, thanks to numerous changes in recent years. Courts may continue to apply harsh penalties in some states but not others. In a recent decision, the Louisiana Supreme Court affirmed a particularly harsh sentence for marijuana possession. State v. Howard, No. 2015-KO-1404, slip op. (La., May 3, 2017). The chief justice criticized the court’s decision in a dissent, noting both the “rapidly relaxing social attitudes” and “changing laws (even in Louisiana) providing more lenient penalties relative to marijuana possession.” Id. at 1 (Johnson, C.J., dissenting).

Texas laws dealing with marijuana possession can be difficult to untangle. The severity of a possession charge mainly varies based on the amount in question. Possession of two ounces or less is punishable as a Class B misdemeanor, while possession of more than 2,000 pounds is punishable by life imprisonment. Tex. Health & Safety Code § 481.121. The statute requires proof that a defendant possessed the marijuana either knowingly or intentionally.

The sections that define the offense of “manufacture or delivery” of a controlled substance, meaning one other than marijuana, include “possess[ion] with intent to distribute.” See, e.g. Tex. Health & Safety Code § 481.112(a). Intent to distribute is not expressly included as part of either possession or delivery of marijuana in Texas. Id. at §§ 481.120, 481.121. That said, evidence of intent to distribute may be used as an aggravating factor to impose a harsher sentence.

Continue reading

Gastineau ChannelThe current legal status of marijuana, from a nationwide perspective, is at best highly uncertain. Several states have legalized the drug for recreational use. One of these states, Alaska, has controversially brought criminal charges against an outspoken advocate for marijuana legalization. According to prosecutors, the individual engaged in conduct that was prohibited by state law at the time, even though a ballot measure legalizing most or all of those activities was already scheduled to take effect. This raises questions about whether prosecutors should continue zealous enforcement of laws that a state’s voters have rejected but that momentarily remain in force.

The federal government still imposes the highest level of restrictions on the drug. 21 U.S.C. § 812(c)(I)(c)(10). Most U.S. states have allowed its use for, at minimum, medical purposes under a doctor’s care. The federal government’s policy for the past several years has been not to interfere in states with legal medical or recreational use, provided that those states’ law enforcement activities fit with federal priorities. As of late 2016, eight states have legalized cannabis:  Alaska, California, Colorado, Maine, Massachusetts, Nevada, Oregon, and Washington. Several more have “decriminalized” it, meaning that offenses are considered civil infractions, rather than criminal offenses.

In November 2014, voters in Alaska approved a ballot measure legalizing the possession of up to one ounce of marijuana. The state has had a less restrictive view of marijuana for some time. More than 40 years ago, the Alaska Supreme Court ruled that the state constitution’s guarantee of the right to privacy included a right to “possession of marijuana by adults at home for personal use.” Ravin v. State, 537 P. 2d 494, 511 (Alaska 1975). Unlike other states that had authorized marijuana use for medical and other purposes, however, Alaska never established a system for the authorized distribution of medical marijuana. People in the state could possess the drug, but it was not clear how they could legally obtain it.

Continue reading

Baton Rouge BridgeThe “War on Drugs” has resulted in the criminalization of a vast array of acts, as well as the extension of serious criminal charges to situations that might not seem to fit the legal definition of those crimes. In Louisiana, prosecutors recently applied a rarely used state law that allows homicide prosecutions in cases of fatal drug overdoses. This is how a man found himself sentenced to life imprisonment for, essentially, providing drugs to his girlfriend. Texas does not have a comparable statute directly linking drug prohibition and homicide, but the Louisiana case shows how far a state might be willing to go in drug cases.

Louisiana’s criminal statutes identify multiple levels of criminal culpability for homicide, from first-degree murder to negligent homicide. The offense of first-degree murder generally requires a “specific intent to kill or to inflict great bodily harm,” along with other factors, such as the commission of a felony like kidnapping, burglary, or arson. La. Rev. Stat. § 14:30. Second-degree murder generally only requires the “specific intent” element. La. Rev. Stat. § 14:30.1. The second-degree murder statute also includes a provision, however, that makes it an offense when someone “unlawfully distributes or dispenses a controlled dangerous substance” to someone who dies a a result of “ingest[ing] or consum[ing]” that substance. Id. at § 14:30.1(A)(3).

Texas law places a wide gulf between laws dealing with illegal drugs and other criminal laws. The Texas Controlled Substances Act (TCSA) is found in Chapter 481 of the Texas Health & Safety Code, and it primarily deals with the manufacture, delivery, and possession of controlled substances. Chapter 19 of the Texas Penal Code deals with homicide, identifying four distinct offenses:  murder, capital murder, manslaughter, and criminally negligent homicide. The definitions of these offenses make no specific mention of illegal drug delivery or use.

Continue reading

Krispy Kreme donutsPolice have devised a vast array of tools and techniques for drug-related investigations. In any prosecution that involves drug possession, the state must be able to prove that a defendant actually possessed illegal drugs. Laboratory tests are available but take time and are often subject to a backlog. Many police departments have turned in recent years to field-testing kits. Unfortunately, these kits are highly prone to errors, including false positive results. In addition to numerous appeals and other post-conviction claims, several lawsuits around the country are challenging the use of these tests on various constitutional grounds.

During a traffic stop, a person’s vehicle may be subject to search without a warrant under several recognized Fourth Amendment exceptions. The automobile exception allows police to search a vehicle if they have probable cause to believe that part of the vehicle contains contraband. This exception derives from the plain-view doctrine, which states that police may search or seize property that is within their line of sight, such as something visible to the officer while standing outside a vehicle during a traffic stop. The exigent circumstances exception also applies, since the vehicle’s mobility creates the risk of losing evidence.

If an officer finds something they suspect might be an illegal drug, the field-testing kit allows them to test it on the spot. A typical kit contains several vials of chemicals that change color if they come into contact with specific drugs. One problem is that some of these chemicals also change when they come into contact with various common and entirely legal substances. Officer errors can also result in false positive results, such as if an officer mishandles one or more vials, if rain or other elements interfere with a test, or if poor lighting conditions result in an incorrect evaluation of a test result. Regardless, a positive test result almost invariably leads to an arrest, and defendants are often pressured to enter a quick guilty plea, even if they maintain their innocence.

Continue reading