Nashville Criminal Law Report : Nashville DUI Lawyer & Attorney : Rob McKinney Law Firm : TN Criminal Defense, Domestic Violence : Cheatham, Davidson, Montgomery Counties

A Nashville , Tn. couple was arrested this week on charges of manufacturing marijuana and possession of marijuana within a 1000 feet of a school zone. Metro Nashville Police discovered a large marijuana growing operation this week. A police officer noticed the smell during a DUI traffic stop. The smell was traced to a house in East Nashville. Police knocked on the door. No answer. Then , the police got a search warrant.  Bingo. Marijuana , grow  lights and all sorts of growing tools were discovered.There are two points that make this case worthy of comment.

First , the issue is whether the smell of marijuana alone justifies the issuance of a search warrant.  The California Court of appeals addressed this very issue this week. The court held ;

"Was the warrantless search justified based on smell alone?" wrote Presiding Justice Arthur Gilbert of the Second District Court of Appeal in Ventura. "Not according to the California Supreme Court. To smell it is not the same as to see it."

It will be interesting to see how this case plays out . From , my reading of The Tennessean article by Andy Humbles and Nicole Young , it appears there was no other evidence to issue the search warrant other than the smell. If there is nothing else , I predict the search warrant may be invalid.

Secondly , does a citizen have to answer the door if police knock ? No. A citizen has no duty to open the door for the police absent a search warrant or arrest warrant. One of the most popular police tactics is the " Knock and Talk ". Police knock on the door. Ask to come in and then they look around or ask for consent to search. Just like a door to door salesman , you do not legally  have to answer or let them in.

One question I have is how far was the house from the DUI stop.

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The Buffalo River runs though Wayne County . It makes a great rip to float down the river on a hot sunny day . However , big brother might be watching your fun.

I just got back from the Wayne County General sessions court in Waynesboro , Tn.  A new police technique was discovered . It appears that members of the local drug task force set up observation posts during the summer . They look like duck blinds . As folks float down the river , they are on the look out for drunk boaters and for people that may be smoking a little weed. Once they see them , the investigation starts.  It seems that all the canoe outfitters like my personal favorite Crazy Horse knows of the police tactics and tell the folks the drug task force is on the river. The lesson is don't have the 4290 on the river. Remember simple possession of marijuana in Tennessee is a Class A misdemeanor that carries jail time , probation , and a mandatory minimum fine of $250.00

Imagine what those police officers would do if they set up shop at Bonnaroo.

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Richard A. Oppel Jr. of the New York Times  just published a article  entitled " Sentencing Shift Gives New Leverage to Prosecutors". From my perspective handling criminal cases in Tennessee , Mr Oppel is right on target. Under Tennessee criminal sentencing laws , there are mandatory minimum sentences in certain criminal offenses.Some prosecutors use those mandatory sentences to drive a plea bargain that sometimes a citizen accused has to accept or risk going to prison for years.

Prosecutors have lobbied the State Legislators for tough mandatory sentences on some criminal offenses. Child rape , aggravated sexual battery , aggravated robbery and first and second degree murder cases have mandatory minimum punishment. Those are violent crimes and should have severe punishment if convicted. However , the hammer has been given to the prosecutors in drug cases to force onerous plea bargain agreements. The prosecutors want to take the discretion away from judges in sentencing. Once someone is convicted of a crime , the trial court holds a sentencing hearing to determine the length and manner of the service of the sentence. Mandatory sentences takes that out of the judge's hands.

“We now have an incredible concentration of power in the hands of prosecutors,” said Richard E. Myers II, a former assistant United States attorney who is now an associate professor of law at the University of North Carolina. He said that so much influence now resides with prosecutors that “in the wrong hands, the criminal justice system can be held hostage.”

The prosecutors and the police now have that power. The drug free school zone act gives the prosecutors that unfair advantage. For example, a person that is arrested for possession to sell cocaine of over .5 grams in a school zone is facing 15-25 years at 100% in prison with no chance of probation. My problem with the drug free school zone act is that it is arbitrary. The drug activity must occur within 1000 feet of a school zone , but there is no nexus requirement that school must be in session. The worst example is driving down I-65 South and one passes several schools. A person has no intent to sell or possess drugs in a school zone but they can be charged for it.

The  plea  bargain is your client is facing 15-25 on a drug free school zone case so the assistant district attorney offers 15 years at 30% to serve. You go to trial you risk spending years in jail. What is worse is the police can wait to make an arrest. Why arrest someone now ? When they can wait until they drive down Charlotte Avenue past a public school. So the police can dictate the charge and the punishment.

Legal scholars like Paul Cassell, a conservative former federal judge and prosecutor who is now a law professor at the University of Utah, describe the power shift as a zero-sum game.

“Judges have lost discretion, and that discretion has accumulated in the hands of prosecutors, who now have the ultimate ability to shape the outcome,” Mr. Cassell said. “With mandatory minimums and other sentencing enhancements out there, prosecutors can often dictate the sentence that will be imposed.”

With that said , our founding fathers created a separation of powers to balance the power between the executive branch and the judiciary. Now , it appears there is no one to keep big brother in check. Let's keep an eye out in a few years on what it is costing Tennesseans to keep a drug offender in jail.

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After court today  in Hickman County Tennessee , I stopped for lunch at Breece's Cafe  in Centerville , Tn, and picked up a copy of the Hickman County Times . By the way , Breece's is a must and try the blackberry pie . The article that grabbed my attention was a cocaine case .

A California man was sentenced to 15 years in jail last week. According to affidavits filed by the 21st Judicial Task Force , Mr.Jeff Bryant was stopped because he was following a tractor-trailer less than two vehicle lengths. Following too closely is a traffic offense under Tennessee law . After  Mr. Bryant was stopped , He consented to a search of his car .Over 27 ounces of cocaine , some marijuana , and a firearm were found in the car . It appears the main defense to the charge was that the traffic stop was illegal. The court denied the defendant's motion to suppress the evidence due to a bad traffic stop.

Mr. Bryant was sentenced to serve 15 years in prison. Possession , sell , delivery or manufacture of more than 300 grams of cocaine carries a 15 to 25 years in prison as a Range I offender .

It appears that Mr. Bryant was stopped by a drug interdiction unit that operates on Interstate 40.

The important lesson is that Mr. Bryant failed to exercise one of his basic constitutional rights . He could have refused the search. However , he consented to the search of his vehicle . Failing to exercise his constitutional rights cost him 15 years to be served at the Tennessee Department of Corrections .

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The Cheatham County Commission recently approved Sheriff Holder's request to hire a new police officer to patrol Interstate 40 in search for drug traffickers. The officer will work in conjunction with the Drug Interdiction Crime Enforcement (DICE) unit . The drug interdiction unit is made up of officers from the Dickson County Sheriff''s Office and  Humphrey's County Sheriff's Office. As part of the deal , all the agencies will share in the amount of confiscated funds or property.

My concern about drug interdiction units is it's all about the money.It is like the phrase from the movie ' Jerry Maguire ' " Show me the money ".

Drug Interdiction units are about seizing money . Who suffers ? Drug dealers suffer if their caught. However , traffic stops are focused on cars from Texas or suspicious looking people by that  I mean blacks and Hispanics . The war on drugs has been a dismal failure since being declared by President Nixon. Now , average citizens pay the price by bending our constitutional protection against unreasonable search and seizures.

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As the week winds down  , I think back to a case from this week. My thought is the total abuse of the drug free school zone law here in Nashville ,Tennessee. Nashville's a great place to live with schools and parks in most places in the county . Only problem is just driving by a school zone with drugs puts you up for an enhanced drug charge . Everybody can agree that drugs are part of society's problematic areas for long while . The problems with drug use both illegal and the increasing abuse of prescription drugs needs to be addressed. However , the Metro Nashville Police in my opinion are looking at any way to charge a drug free school zone case .

The use of the school zone enhancement has a chilling effect on fighting your case . For example , a criminal case I handled this week should have been fought but the penalties are so severe that no one can face their accusers . Possession of more than .5 grams of cocaine in a school zone gets you 15 to 25 years in prison at 100%. Facts were no observations of sale by police only some audio with no concrete evidence of a drug sale.Client stopped later with no drugs and $50.00 of the photocopied buy money. He is facing 15-25 on weak evidence . A plea bargain was offered at 1 year on probation. No choice but to take the plea bargain.

No connection to the school other than 1000 feet . However , the hammer of the drug free school zone law in Tennessee is used to prevent a person seeking justice. Now some people might read this and think if I was innocent no way I take a plea deal. Would you gamble 15-25 years on 12 people ? The hammer will be used next week as well to force someone to take a deal.

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Snitches or confidential informants are one of the standard tools that police and District Attorneys use in trying to obtain a conviction in a criminal case.. In two high profile cases here in Nashville , Tennessee the jail house snitch was used effectively. First , Perry March was tried of trying to arrange a murder of his former In-Laws from his jail cell. The state tried that case first and put Mr.March in jail based in large part of the snitch testimony.Secondly , Bruce Mendenhall was convicted in a murder for hire using a snitch as well.

Who makes the decision to develop jailhouse snitch testimony ?  I often read the Snitching Blog. Today , Alexandra Natapoff wrote about an interesting efforts to preclude jailhouse snitching. Here's a copy of a motion designed to curtail jailhouse snitching. Take a look a homicide detectives that regularly use jail house snitches.

Thanks again to the Snitching Blog for their insights on this topic.

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Several years ago the Tennessee State Legislature enacted the Drug Free School Zone Act.  The purpose was to prevent drug trafficking at or near our schools.  I agree wholeheartedly that schools should be a place of learning and not a breeding ground for drug sales to children.  However, the police and the District Attorneys Office uses the school zone act as a hammer in the war on drugs.  Now, driving though a school zone triggers the enhanced punishment portion of the drug free school zone act.  A school zone drug charge increases the punishment and makes the service of the sentence at 100 % to serve. Watch the video to see how just driving down Charlotte Avenue in Nashville, Tennessee can impact a case.

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Here's an update on drug interdiction tactics.  Simple Justice reported on a new book written by Andrew Hawkes on how a police officer can be a successful drug interdiction officer.  Mr. Hawkes has available for sale a book titled  " Secrets of Successful Highway Interdiction".  Here is a list of the chapters from his book :

"Secrets of Successful Highway Interdiction"

TABLE OF CONTENTS

Chapter 1   - Instinct and Indicators
Chapter 2   - Playing the Percentages in Your Favor
Chapter 3   - Probable Cause vs. Reasonable Suspicion
Chapter 4   - The Contact and Interview 
Chapter 5   - The Investigation
Chapter 6   - Vehicle Search Techniques & Hidden Compartments

Chapter 7 -   Use of K-9

Chapter 8   - Arrest & Post Investigation

Chapter 9   - Report Articulation
Chapter 10  - Fourth Amendment & Racial Profiling
Bonus Chapter - Courtroom Demeanor

A few of his tips are:  putting the dope on the trunk of the car to let the video capture the image of the drugs, turning off the radar equipment, and questioning the passengers to see if everybody knows everyone's names.

If you want more information on drug interdiction cases in Tennessee, I created a short video on the issue.

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Music lovers from across the nation will be coming to Manchester , Tennessee for the Bonnaroo Music Festival which kicks off this Thursday.Lynn Edwards of Nashville's Metro Mix wrote an excellent  Bonnaroo Survival Guide which includes tips on Bonnaroo. However , Bonnaroo also brings out law enforcement from the Tennessee Highway Patrol to local police.Here's my Bonnaroo criminal survival guide:

• Obey all speed limits and traffic laws;
• Keep handy all driver's license information as well as insurance and registration papers;
• Take off any suspect bumper stickers and decals :
• Don't drink and drive;
• Don't consent to any searches of your person or your vehicle;
• Don't make any statements to law enforcement officers;
• If stopped by the  police be nice , respectful , and courteous , you can't win by arguing with the police on the street;

Be safe and have a safe trip to Tennessee.

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Here is a video of an execution of a search warrant.  Most search warrants do not go like this, but I thought it is a great example of a search warrant gone wrong.  Thanks to Simple Justice and Radley Balko for this educational video.

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On March 19^th 2010 , the Tennessee Supreme Court decided State v. Talley. The issue was whether an owner of a condominium has a reasonable expectation of privacy in the commonly owned hallway of the complex. The Fourth Amendment of the U.S. Constitution and Article I, section 7 of the Tennessee Constitution protect against warrantless search and seizures, including the curtilage of the home, which is defined as any area adjacent to a residence in which an individual can reasonably expect privacy. For example ,s storage shed or detached garage would be a curtilage of a house.

The Sixth Circuit Court of Appeals enunciated a bright-line rule in United States v. Carriger that officers may not enter the common areas of a locked building without a warrant due to the expectation of privacy that only the resident and other residents and their invited guests would have access to the common areas. It appears that the Sixth Circuit, along with several State Supreme Courts, follows this bright-line rule. 

In contrast, the Tennessee Supreme Court held in Talley that the totality of the circumstances should control. The deciding factors are whether the defendant owns the property or has a possessory interest in it, is legitimately on the premises, has the right to exclude others from that place, has shown a subjective expectation that the place would be free from governmental invasion, and took normal precautions to maintain his privacy. These factors were first used by courts in Tennessee in 1982. The Second, Fifth, Eighth, Ninth, and Eleventh Circuits all appear to use the same totality of the circumstances factors. 

Although state courts within a particular federal district may consider what the lower federal courts have decided, the state courts are not required to follow those decisions.   The result? Depending on what state you live in, and perhaps whether the charges are filed in state or federal court, you may or may not have a right to privacy in these secured common areas. This so called split of authority among the circuits will only be resolved when the United States Supreme Court takes a case and finally decides for all of us what the Constitutional right to privacy means in this context.  

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Purdue Pharma has taken action to prevent abuse of it's powerful painkiller OxyContin.Purdue has taken steps to reformulate OxyContin to prevent the pill from being cut,broken,chewed,crushed or dissolved to release more medication that increase the risk of drug abuse and overdoses.It is predicted the new format will result in less abuse by inhaling or injection.OxyContin and Loratab are the most drugs that are most abused from my experience.Prescription pill abuse has wide reaching effects from drugged driving that leads to DUI and vehicular assault ,drugged driving , and to the sale of a controlled substances for resale.

It appears one drug company is finally assuming responsibility to protect the public.

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Just got back from being out of town for awhile and catching up at the office on a rainy Sunday.The topic today is the use of snitches in drug cases in both Federal Court and State Court criminal cases. The U.S.Attorney General has published a guideline on how the FBI should use confidential informants. A copy of the report can be found here .Unfortunately, there is no guidelines for the use of informants on the state level.It begs the question of why there is no written policy on the use of snitches in Tennessee.

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Drug Interdiction cases are on the rise on Tennessee interstates A trip down I-40 or I-24 will reveal all types of police drug interdiction units.I prepared a short video of the ins and outs of defending a drug interdiction case.Here's some tips on how to beat a drug interdiction case.

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