Articles Posted in Drug Offenses

CrumbsLaw enforcement officials in Texas have used a variety of tools to help them investigate suspected drug-related offenses. Some of these tools have resulted in profound injustice in the form of wrongful convictions. A kit used by many officers around the state to test substances they believe are an illegal drug has returned “positive” results for substances later revealed to be innocuous. By the time more accurate test results were available in many of these cases, defendants had already pleaded guilty rather than risk going to trial against what police had represented as incontrovertible evidence of guilt. Now, the Houston Police Department has announced that it will no longer use these field kits, but not because of concerns about justice. Instead, the department cited risks posed to officers from opiate exposure during testing. Still, this is welcome news for Texas criminal defense advocates.

In any criminal prosecution, the state has the burden of proving every element of the charged offense, as it is defined by statute, beyond a reasonable doubt. Field-testing kits are often used by police to test substances believed to be cocaine. The relevant criminal charge would likely be possession of a controlled substance in Penalty Group 1. This would require proof beyond a reasonable doubt of four elements:  that a defendant (1) possessed a controlled substance (2) that is included in Penalty Group 1, (3) that the defendant did so “knowingly or intentionally,” and (4) that the defendant did not have a valid prescription for the substance from a medical doctor. Tex. Health & Safety Code §§ 481.102(3)(D), 481.115(a).

In a cocaine possession case, the prosecution must prove beyond a reasonable doubt that the substance is, in fact, cocaine. The requirement of proof beyond a reasonable doubt means that the “finder of fact” concludes that no reasonable doubt exists as to whether the substance is cocaine. The “finder of fact” is either the judge presiding over the case or a jury of the defendant’s peers. Results from a drug-testing kit routinely used by police can appear very convincing, unless the defendant is able to challenge the accuracy or validity of those test results. An innocent defendant without the resources to challenge the test results might choose to plead guilty rather than risk turning the decision over to a jury.

cannabis oilMost states in the U.S. now allow, to some extent, the sale, possession, and use of marijuana for various purposes. Several states, beginning with Colorado, have effectively legalized recreational use of marijuana in small amounts. Many of these states, however, only allow the use of specific marijuana-derived products for specific medical uses, under a doctor’s supervision. Texas is among the states that have only slightly eased restrictions on marijuana. Even the minor recent changes to state law, however, have resulted in significantly different priorities between the federal and Texas criminal justice systems. Marijuana remains a highly controlled substance under federal law, but since 2014, Congress has barred federal law enforcement from interfering with state medical marijuana programs. The U.S. Department of Justice (DOJ) has recently lobbied Congress to repeal this provision, but a Senate committee approved renewing it this summer. Shortly afterwards, Texas issued the first license under this state’s medical marijuana law.

Marijuana is a Schedule I controlled substance under federal law, meaning that Congress has deemed it to have “no currently accepted medical use.” 21 U.S.C. §§ 812(b)(1)(B), (c)(I)(c)(10). Texas also continues to treat marijuana as a strictly controlled substance in most circumstances, but in 2015, the Texas Legislature enacted the Texas Compassionate-Use Act (TCUA). This law allows the use of “low-THC cannabis” for the treatment of intractable epilepsy, defined as a “seizure disorder” that has persisted after the patient has tried “two or more appropriately chosen and maximally titrated antiepileptic drugs.” Tex. Occ. Code §§ 169.001(2), (3). The TCUA establishes standards for the licensing of “dispensing organizations” and registration of individuals involved in producing, distributing, prescribing, and using low-THC cannabis. See Tex. Health & Safety Code § 487.001 et seq.

Despite the many layers of administrative procedures put in place by the TCUA, it still violates federal law, at least in a technical sense. Federal law enforcement officials, from the President and the Attorney General (AG) down to individual DEA agents, have taken a wide range of views on whether federal law should supersede state medical marijuana programs. The view of the current AG appears to be that federal drug enforcement efforts take precedence, but Congress has generally disagreed.

MDMA capsulesThe federal Controlled Substances Act (CSA) defines five schedules of controlled substances and prescribes penalties for their production, distribution, and possession. Texas drug crime laws contain similar schedules. The CSA includes a list of substances in each schedule, but it also gives some authority to the Department of Justice (DOJ) to modify or adjust the schedules. The DOJ has delegated this authority to the Drug Enforcement Administration (DEA). One factor considered in the scheduling of controlled substances involves the potential for medical use. A different federal agency, the U.S. Food and Drug Administration (FDA), deals with drugs used for medical purposes. Recently, the FDA announced that it will allow further research into the medical potential of a Schedule I controlled substance known as MDMA. While this research could lead to FDA approval of MDMA for medical purposes, the DEA or Congress would still have to remove it from Schedule I.

The CSA places the most highly restricted controlled substances in Schedule I. MDMA, scientifically known as 3,4-methylenedioxymethamphetamine and colloquially known as ecstasy, among other names, was not among the drugs originally added to Schedule I by Congress. The DEA designated MDMA as a Schedule I “hallucinogenic substance” in the 1980s. 21 C.F.R. § 1308.11(d)(11). Texas places MDMA in Penalty Group 2. Tex. Health & Safety Code § 481.103(a)(1).

The CSA’s criteria for inclusion in Schedule I are “high potential for abuse,” a lack of “currently accepted medical use,” and “a lack of accepted safety for use…under medical supervision.” 8 U.S.C. § 812(b)(1). Other well-known Schedule I controlled substances include heroin, lysergic acid diethylamide (LSD), and marijuana. Id. at §§ 812(c)(I)(b)(10), (c)(9), (c)(10). Many controlled substances commonly associated with the illegal drug trade are actually listed in Schedule II, including cocaine and methamphetamine. Id. at § 812(c)(II)(a)(4), 21 C.F.R. § 1308.12(d)(2).

FirearmThe legal status of marijuana at the state level is changing across the country, with more than half of all U.S. states now allowing the possession and use of marijuana to some extent. Federal law, however, still considers marijuana to have no medical use and therefore no acceptable reason for possession, cultivation, or sale. The disparity between federal law and many state laws has produced numerous unusual and unfortunate results. A ruling by the Ninth Circuit Court of Appeals from last year, while not binding on Texas, ought to be concerning to many Texas drug crime defendants, since the court held that federal law may bar lawful medical marijuana users from purchasing firearms. Wilson v. Lynch, 835 F. 3d 1083 (9th Cir. 2016).

Marijuana is a Schedule I controlled substance under federal law. 21 U.S.C. § 812(c)(I)(c)(10). Texas enacted a medical marijuana law in 2015 that allows the use of “low-THC cannabis,” with a prescription, to treat “intractable epilepsy.” See Tex. Occ. Code § 169.001 et seq., Tex. Health & Safety Code § 487.001 et seq. This is one of the most restrictive medical marijuana laws in the country, but it is still far less restrictive than federal law. The Wilson case involves Nevada law, which exempts individuals from prosecution for marijuana possession if they have a valid state registration card. See Nev. Rev. Stat. § 453A.010 et seq.

Federal law makes it a crime for certain individuals to possess firearms in a manner that affects interstate commerce, which has often been interpreted as prohibiting the sale of a firearm to someone covered by the statute. This includes “unlawful user[s] of…any controlled substance.” 18 U.S.C. § 922(g)(3), 21 U.S.C. § 802(6). The law further states that it is a crime for someone to sell a firearm to someone they know or have “reasonable cause to believe” meets this criterion. 18 U.S.C. § 922(d)(3).

1942 Nash Ambassador X-rayCourts have identified numerous exceptions to the Fourth Amendment’s search warrant requirement, meaning that law enforcement may conduct a search without first obtaining a warrant if they can demonstrate that the situation falls under a recognized exception. They must still demonstrate probable cause to believe that the search would yield contraband or evidence of criminal activity. The “border search exception,” however, goes further than most exceptions. It states that law enforcement, specifically the U.S. Border Patrol and U.S. Customs and Border Protection (CBP), can conduct searches of people and property entering the U.S. without a warrant, and without probable cause under some circumstances. Two Texas drug crime-related searches and seizures at a border crossing in early 2017, using high-tech imaging equipment, demonstrate how searches at or near the border can be different from searches elsewhere.

The border search exception is based in part on the sovereign right to control entry to the country. The U.S. Supreme Court has held that customs officials may search mail and other items arriving at the border without a warrant. United States v. Ramsey, 431 U.S. 606 (1977). With regard to searches of people and their property, the court has held that people have a lessened expectation of privacy at border crossings. Florida v. Royer, 460 U.S. 491, 515 (1983). Law enforcement can stop vehicles at fixed checkpoints for the purpose of immigration enforcement, even without any specific suspicion about individual vehicles, and they can refer some vehicles to a “secondary inspection area.” United States v. Martinez-Fuerte, 428 U.S. 543, 563 (1976).

Congress has given immigration officials the authority to perform these types of immigration enforcement functions up to 100 miles from international borders within the U.S. 8 U.S.C. § 1357(a)(3). When law enforcement officials are not operating out of a fixed checkpoint, such as by pulling over individual vehicles on public roads, the Supreme Court has held that they must be able to demonstrate probable cause. Almeida-Sanchez v. United States, 413 U.S. 266 (1973). Fixed checkpoints therefore provide law enforcement with their greatest amount of power to conduct warrantless searches.

federal buildingThe policies of the U.S. Department of Justice (DOJ) regarding federal drug sentencing have gone through several major changes recently. Former Attorney General (AG) Eric Holder undertook a major overhaul several years ago, seeking to focus attention away from low-level drug offenses and onto major ones. In May 2017, however, AG Jeff Sessions rescinded Holder’s policy and issued a new memorandum directing federal prosecutors to “charge and pursue the most serious, readily provable offense.” The memorandum does not specifically mention drugs and drug-related offenses, but that is where it is likely to have the most far-reaching effects.

Federal sentencing guidelines derive, in part, from a list of factors established by Congress in 1984 that courts must consider when imposing a sentence. These include “the nature…of the offense and the…characteristics of the defendant,” the effect of the sentence on society at large, the need to maintain consistent sentencing practices for similar offenses, and “the need to provide restitution to any victims of the offense.” 18 U.S.C. § 3553(a).

A “mandatory minimum” sentence gives courts no discretion to adjust the sentence downward. Such sentences became particularly widespread with the Anti-Drug Abuse Act of 1986, Pub. L. 99-570 (Oct. 27, 1986). That law established lengthy minimum sentences for various drug offenses, such as 10 years for manufacturing, distributing, or possessing with intent to manufacture or distribute one kilogram of heroin or five kilograms of cocaine. 21 U.S.C. §§ 841(b)(1)(A)(i), (ii). According to the United States Sentencing Commission (USSC), 47.9 percent of all federal drug convictions in fiscal year 2015 involved an offense with a mandatory minimum penalty.

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marijuana dispensaryMore than half of the states in the U.S. now allow the use of medical marijuana to some extent. At the same time, federal law still treats marijuana as having “no currently accepted medical use in treatment in the United States.” 21 U.S.C. §§ 812(b)(1)(B), (c)(I)(c)(10). This has, obviously, created conflicts between federal and state law enforcement. Congress relieved this tension somewhat in 2014, when it passed legislation known as the Rohrbacher-Farr amendment as part of a spending bill. This amendment prohibits the U.S. Department of Justice (DOJ) from spending funds on law enforcement activities that interfere with lawful state medical marijuana systems, which range from the extensive in California to the restrictive in Texas. Texas marijuana lawyers are aware, however, that officials in the new White House administration have sought to use federal resources against state medical marijuana. So far, the Rohrbacher-Farr amendment remains in force.

California was the first state to allow the use of medical marijuana with a doctor’s prescription. Voters approved Proposition 215 in November 1996, also known as the “Compassionate Use Act.” Cal. Health and Safety Code § 11362.5. Twenty years later, in November 2016, voters in that state approved Proposition 64, which authorized the sale, purchase, and possession of limited amounts of marijuana for recreational use. Id. at § 11362.1. Most states have not gone this far, but states that allow medical marijuana in some form outnumber those that do not. Texas is among the states that allow medical marijuana use, although it is strictly limited to “low-THC cannabis” to treat “intractable epilepsy.” Tex. Health & Safety Code Ch. 487, Tex. Occ. Code Ch. 169.

The U.S. Supreme Court has rejected at least two challenges to the applicability of federal marijuana laws over state medical marijuana laws. The court rejected a common-law medical necessity defense in U.S. v. Oakland Cannabis Buyers’ Cooperative, 532 U.S. 483 (2001). Justice Thomas, writing for the court, noted that federal criminal law generally does not recognize common-law defenses unless Congress specifically includes them in a statute. He concluded that “a medical necessity exception for marijuana is at odds with the terms of the Controlled Substances Act.” Id. at 491. The court held that the Commerce Clause of the U.S. Constitution allows a federal prohibition of marijuana production, distribution, and possession, regardless of state medical marijuana laws, in Gonzales v. Raich, 545 U.S. 1 (2005).

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.

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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.”
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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.

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