Articles Posted in Drug Offenses

Courts 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.

The 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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More 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).

The 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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Legal 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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Police 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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Accidental 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.

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The 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).

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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.The 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.

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Laws 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.

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