Articles Posted in Drug Offenses

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.

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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.

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Spider monkeyThe legal status of marijuana has become increasingly uncertain, ever since California became the first state to allow marijuana for medical purposes in the 1990s. More than half of all U.S. states have reduced criminal prohibitions on marijuana or decriminalized it altogether. It remains completely illegal under federal law, which creates an obvious and ongoing conflict between state and federal law enforcement. The Drug Enforcement Administration (DEA) recently affirmed marijuana’s status as a Schedule I controlled substance, and the Food and Drug Administration has declined to recognize any medical value. At the same time, Congress has effectively prohibited the Department of Justice (DOJ), which includes the DEA, from interfering with the implementation of state medical marijuana laws. A federal appellate court decision has held that federal prosecutors may not pursue drug charges for conduct permitted by state law.

Federal law describes Schedule I controlled substances as those with a “high potential for abuse,” “no currently accepted medical use,” and a “lack of accepted safety” for medical use. 21 U.S.C. § 812(b)(1). “Marihuana” is currently included under Schedule I in both the U.S. Code and DEA regulations. Id. at § 812(c)(I)(c)(10), 21 C.F.R. § 1308.11(d)(23). A new rule issued by the DEA affirms marijuana’s Schedule I designation, rejecting calls to have the drug rescheduled. 81 Fed. Reg. 53846 (Aug. 12, 2016). The agency did, however, slightly loosen the restrictions on the cultivation of marijuana for medical research. Any slight progress in the DEA’s position on marijuana seems to be increasingly at odds with the 28 U.S. states, along with the District of Columbia, Guam, and Puerto Rico, that now allow marijuana use for medical purposes.

About a year before the DEA issued its latest rule, the FDA reportedly advised the DEA to maintain marijuana’s Schedule I status. Many of the documents related to the FDA’s position on this issue were not publicly available until VICE News published over 100 pages it obtained from the agency. While the FDA has called for the rescheduling of certain “constituents” of marijuana used to treat conditions like epilepsy, it has opposed rescheduling marijuana itself. Its report to the DEA includes findings that marijuana can be addictive for monkeys, which apparently contributed to the recommendation that marijuana remain subject to stricter controls than cocaine and heroin.

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marijuanaMore than half of the states in the U.S. have enacted laws allowing marijuana use for medicinal purposes with a doctor’s prescription. A few states have gone even further by decriminalizing the recreational use of the drug. Under federal law, however, marijuana is still a Schedule I controlled substance, and the federal government shows no signs of relaxing its stance. Even in states that have, to varying degrees, decriminalized the cultivation, distribution, purchase, and possession of marijuana, federal authorities may still pursue charges. A ruling issued by a federal appellate court in August 2016 could significantly alter the power dynamic between the federal and state governments on this issue. The court ruled that a clause in an appropriations bill passed by Congress in 2015 effectively prohibits federal prosecutors from pursuing marijuana-related charges against people whose alleged conduct was permissible under applicable state laws.

Currently, 28 U.S. states, along with the District of Columbia, Guam, and Puerto Rico, have passed laws decriminalizing marijuana for at least some uses. Seventeen states, including Texas, now allow the use of certain low-THC cannabis products for specified medical purposes. Texas, for example, allows the use of low-THC cannabis with a doctor’s prescription for the treatment of intractable epilepsy. See Tex. Health & Safety Code § 487.001 et seq., Tex. Occ. Code § 169.001(3).

Despite this multitude of state laws, the federal government often continues to enforce federal marijuana laws in those states. Enforcement against individual users by federal law enforcement is relatively rare, but businesses engaged in cultivating and dispensing medical marijuana have found themselves the targets of federal investigations and prosecutions.

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AspirinIn the four decades of the United States’ “War on Drugs,” law enforcement officials have adopted a vast array of technologies that detect the presence of controlled substances. This includes prepackaged drug-testing kits that allow officers to test substances in the field but that have also reportedly led to a significant number of “false positive” results. Because of criminal court procedures that encourage plea bargaining, many people have pleaded guilty to drug crimes they did not commit because of false positive field test results. A report by the New York Times and ProPublica highlights a case in Houston, Texas, in which a woman pleaded guilty to possession of crack cocaine, only to be exonerated years later by more thorough testing of the material seized from her car.

The Fourth Amendment requires police to obtain a warrant before conducting a search or seizing property. Exceptions to this requirement include the “plain view rule,” which allows police to seize property that is within their line of sight, and the vehicular exception, which allows them to conduct a reasonably limited search of a vehicle during a traffic stop. If an officer sees something in a vehicle that they believe is a controlled substance or drug paraphernalia, they can legally seize that material. Field testing kits allow them to make a quick assessment of the seized material, except the kits themselves are not always reliable, and individual officers may not use the kits correctly.

The New York Times report describes the field test kits as containing vials of chemicals that turn a certain color when exposed to certain chemicals found in illegal drugs. For example, one vial contains a cobalt thiocyanate, which turns blue when it comes into contact with cocaine. Over 80 other compounds can also cause it to turn blue, however, “including methadone, certain acne medications and several common household cleaners.” The tests may also be affected by environmental conditions like hot or cold weather, and lighting conditions can affect officers’ ability to correctly assess test results. Despite these problems, many police departments use these kits extensively.

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Green Kratom LeafThe federal Controlled Substances Act (CSA), 18 U.S.C. § 801 et seq., establishes five schedules of chemicals and materials, setting restrictions on their manufacturing, distribution, sale, and possession. Schedule I contains the most highly restricted drugs. The Drug Enforcement Administration (DEA), part of the U.S. Department of Justice (DOJ), has the authority to add drugs to the schedules, remove them, or reschedule them. In August 2016, the DEA published a notice of intent to add two chemicals, the active components of a plant known as kratom, to Schedule I. 81 Fed. Reg. 59929 (Aug. 31, 2016). The DEA claimed that banning kratom “is necessary to avoid an imminent hazard to the public safety.” Id. The notice prompted a massive public response about the purported benefits of kratom. The DEA withdrew its notice of intent about six weeks later and requested additional feedback. 81 Fed. Reg. 70652 (Oct. 13, 2016).

Schedule I controlled substances, according to the CSA, have a “high potential for abuse,” lack a “currently accepted medical use,” and have no “accepted safety” standards for use “under medical supervision.” 21 U.S.C. § 812(b)(1). The CSA includes various opioids and opiate derivatives, including heroin, under Schedule I, as well as MDMA, marijuana, LSD, peyote, and psilocybin. Id. at § 812(c)(I). The DOJ, through the Attorney General, has the authority to add drugs to any of the schedules upon a finding that they have “a potential for abuse” and fit the CSA’s scheduling criteria. Id. at § 811(a). The DOJ has delegated this procedure to the DEA. 21 C.F.R. § 1308.01 et seq.

Kratom is native to Southeast Asia. It is reportedly used in pain management and to treat opiate withdrawal, although the Food and Drug Administration (FDA) has not approved it for any medical use. Since it has similar effects to opioids, it is also used recreationally. According to the Centers for Disease Control and Prevention (CDC), kratom use has been associated with various negative effects. Kratom proponents claim that it is a beneficial alternative to opioid drugs. Six states—Alabama, Arkansas, Indiana, Tennessee, Vermont, and Wisconsin—have banned kratom, along with one county in Florida. The FDA has issued an import alert regarding the plant, and the federal government has seized multiple shipments of dietary supplements containing kratom at U.S. ports.

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map with flagsNumerous states have modified their drug laws in recent years, easing many of the excesses of the “War on Drugs” and relaxing certain restrictions. More than half of the states in the U.S. now allow medical marijuana use to some extent, and a handful of states have decriminalized recreational use. At the federal level, however, drug laws have not changed. Federal law enforcement, at least hypothetically, has the authority to enforce federal drug laws in states that have partially or wholly decriminalized marijuana. It has not done so because of decisions by the Department of Justice (DOJ) and other executive agencies. With a new administration now in office and new nominees for Cabinet positions awaiting confirmation by the Senate, these policies could change. This uncertainty is not likely to have much impact in Texas, where the medical use of a marijuana-based product is allowed only in extremely limited circumstances. In certain other states, the impact could be significant.

The federal Controlled Substances Act (CSA), 21 U.S.C. § 801 et seq., prohibits marijuana under nearly all circumstances. Each state has its own drug laws. See, e.g. Tex. Health & Safety Code § 481.001 et seq. Many states allow medical marijuana use, and several states, such as Colorado and Washington, now allow its recreational use. In Texas, the Compassionate Use Act allows the use of low-THC cannabis, under medical supervision, solely for the treatment of intractable epilepsy. Tex. Health & Safety Code § 487.001 et seq., Tex. Occ. Code § 169.001 et seq. A bill introduced in the Texas Senate in December 2016, S.B. 269, would authorize medical marijuana, but its prospects for passage seem low.

As a general rule, the federal government may not direct state and local law enforcement agencies or officials to enforce federal laws. See Printz v. United States, 521 U.S. 898, 935 (1997) (“Congress cannot compel the States to enact or enforce a federal regulatory program.”) Unless state or local law enforcement agencies voluntarily offer their cooperation, federal enforcement is the responsibility of executive agencies like the DOJ.

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customs tapeThe U.S. Border Patrol checkpoint at Sierra Blanca in Hudspeth County, Texas has operated in one form or another for over a century. Located on Interstate Highway 10, the checkpoint has gained a certain notoriety as the site of numerous celebrity “drug busts,” particularly musicians’ tour buses traveling east from Los Angeles. Celebrities arrested at Sierra Blanca in recent years include Willie Nelson, Snoop Dogg, and Fiona Apple. The checkpoint’s primary purpose is immigration enforcement, while drug interdiction depends largely on the cooperation of local law enforcement. In 2015, the Hudspeth County Sheriff announced that he would no longer take marijuana cases from Border Patrol.

The Supreme Court has held that permanent roadside checkpoints near the U.S.-Mexico border, for the specific purpose of immigration enforcement, do not violate the Fourth Amendment’s prohibition on warrantless searches and seizures. United States v. Martinez-Fuerte, 428 U.S. 543 (1976). The Fourth Amendment does not, however, allow the use of roadblocks and drug-sniffing dogs to conduct warrantless searches for illegal narcotics, according to the Supreme Court in City of Indianapolis v. Edmond, 531 U.S. 32 (2000).

According the U.S. Customs and Border Protection (CBP), Sierra Blanca played a role in immigration enforcement long before the Border Patrol even existed. A single “mounted guard” was stationed at Sierra Blanca and “charged with the enforcement of immigration laws in the area.” The Border Patrol established a station at that location soon after Congress created the agency in 1924. The Supreme Court ruled it constitutional 52 years later.

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paper bagIn order to obtain a search warrant, a police officer must have probable cause to suspect that a search will turn up contraband, such as illegal drugs, or other evidence of criminal activity. The odor of marijuana is a very commonly claimed basis for probable cause. As more and more states adopt laws permitting marijuana use for medical or recreational purposes, courts must review whether the “odor of marijuana” is still so definitive for this purpose. Texas’ medical marijuana law is extremely limited, but many states now allow medical patients with a valid prescription to smoke marijuana. The Arizona Supreme Court recently ruled on a defendant’s challenge to a search warrant based on marijuana odor. The state appellate court reversed his conviction in 2015, citing the medical marijuana law. The state supreme court vacated most of that ruling, with some important caveats for the police. State v. Sisco, No. CR-15-02656-PR, slip op. (Ariz., Jul. 11, 2016).

No distinct definition exists for “probable cause,” and U.S. courts have adopted a variety of interpretations over the years. The U.S. Supreme Court expressly adopted a “totality of the circumstances” approach in Illinois v. Gates, 462 U.S. 213 (1983). It held that a magistrate must consider the circumstances presented in the search warrant affidavit, along with the “veracity” and knowledgeability of the person presenting the affidavit, to determine whether “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. at 238.

Marijuana is a Schedule I controlled substance under federal law, and, until recently, it has been heavily restricted under state laws as well. Courts have generally held that the odor of marijuana weighs strongly in favor of probable cause for a search warrant, provided that the officer making the claim about the odor has sufficient knowledge and training in the matter. State laws allowing medical and even recreational use of the drug complicate this analysis, since the mere odor of marijuana does not imply criminal activity in jurisdictions where the use of the drug is permitted. This was the finding of the Arizona Court of Appeals in the Sisco case, which vacated the defendant’s sentence. 359 P.3d 1 (2015).

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Calcium sulfateA report released in early 2016 by the National Registry of Exonerations (NRE), a joint project by the University of Michigan Law School and the Northwestern University School of Law, states that courts around the country exonerated 149 people in 2015. This is believed to be the highest number for any year in U.S. history. Texas accounted for more than one-third of the total, with 54 exonerations. The exonerees were serving an average prison sentence of 14 years. “Exoneration” is not a formal legal term, but instead it refers to multiple possible processes by which a person who has been convicted of a criminal offense is essentially cleared of all criminal liability for that offense and, in many cases, any lesser included offense, based on evidence showing that the person is innocent.

Exoneration may occur through a process initiated by an inmate or by the state. An increasing number of jurisdictions maintain conviction integrity units (CIUs) to review cases and identify errors. The NRE report notes that the CIU for Harris County, Texas was responsible for most of the exonerations in Texas in 2014 and 2015. It has been particularly active in reviewing drug possession cases, many of which involve a person charged for possession of something initially believed to be an illegal drug, who pleaded guilty to avoid the risk of a longer sentence. Subsequent testing revealed that the substances were entirely legal.

Since exoneration generally requires new evidence, a petition for habeas corpus is a common method used by defendants. Once a court vacates a sentence, the exoneration process is complete when the prosecutor drops the charges. Without new evidence, however, courts may be unwilling to enter a formal finding of “actual innocence.” This was the case with the former day care owners in Austin convicted of sexual abuse in the early 1990s. The Texas Court of Criminal Appeals vacated their convictions in 2013, but it declined to rule on the question of innocence.

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