Nashville Decriminalizes Marijuana What's Next

The Metro Nashville Davidson County City Council passed a law to decriminalize marijuana  on final reading. Now , several questions will have to be answered.

1. How will the Metro Nashville Police Department enforce the new law ?

I expect Chief Anderson to issue a new general order on how the Metro police should respond to the new law. A general order will provide a bright line rule on whether a to issue a municipal citation, a criminal citation, or an arrest warrant. Without a general order being put down, there is too much discretion in the hands of law enforcement.

2. Will the Tennessee Legislature step in to contest the new law on decriminalizing marijuana ?

There is no doubt that the Tennessee Legislature will intervene in this controversy. It will be on the front burner in the next legislative session. Representative William Lamberth was recently quoted on the subject in the Tennessean. He mentioned cutting off road funds to Davidson County.

3. Can a civil violation be expunged ?

Davidson County General Sessions Judge bill Higgins raised the issue on expunging a violation of the marijuana ordinance. A criminal marijuana charge can be expunged from your record if it is dismissed or you were granted judicial diversion. The new marijuana ordinance will always be on your record. but not your criminal record. Most major companies run criminal background checks. Normally, Tennessee criminal convictions are reported to the Tennessee Bureau of investigation. Since , the new law is a civil fine. I doubt it will be reported. No one ever checks the civil docket, but it will be there lurking in your past.

4. Can you be cited for the civil violation and also be arrested ?

The short answer is yes. The police could cite you for a violation of the ordinance and also arrest you. Double jeopardy does not prohibit both a criminal and civil charge. What goes hand in hand with marijuana ? Drug paraphernalia. You have a little weed and a bowl or a grinder. You get a double whammy. A civil penalty for the weed then a criminal charge for the paraphernalia.

 

5. How will the district attorney's office prosecute simple possession cases ?

No word or statement from the district attorney's office. My guess if the police charge the drug possession as a crime, they will prosecute.

There will be more questions on the new law in the upcoming weeks. Stay tuned.

Nashville Moves to Decriminalize Marijuana

The Nashville Metro Council has passed on second reading a proposal to decriminalize marijuana. Final reading is coming up soon. It has a ton of support locally and is expected to pass. The proposal is to make possession of marijuana less than one half ounce a civil matter much like a traffic ticket. It would carry a $50.00 fine. Nashville residents who enjoy a little 420 should not rejoice yet.

 

Is the local ordinance legally valid ? Probably not.

A local ordinance does not trump state law. The effort to decriminalize marijuana here in Nashville is just a waste of time. Nashville police can still enforce Tennessee state law governing the possession of marijuana.

Decriminalizing marijuana will only be effective if it done on a state level. It is a lot of talk with no real change in the law.

Nashville Moves to Decriminalize Marijuana

The Nashville Metro Council has passed on second reading a proposal to decriminalize marijuana. Final reading is coming up soon. It has a ton of support locally and is expected to pass. The proposal is to make possession of marijuana less than one half ounce a civil matter much like a traffic ticket. It would carry a $50.00 fine. Nashville residents who enjoy a little 420 should not rejoice yet.

 

Is the local ordinance legally valid ? Probably not.

A local ordinance does not trump state law. The effort to decriminalize marijuana here in Nashville is just a waste of time. Nashville police can still enforce Tennessee state law governing the possession of marijuana.

Decriminalizing marijuana will only be effective if it done on a state level. It is a lot of talk with no real change in the law.

An Effort to Decriminalize Some Marijuana Crimes

Tennessee State Legislator William Lamberth has proposed a bill in this year's legislative session to modify one aspect of Tennessee's marijuana laws.  Under current Tennessee law, a third conviction of simple possession of marijuana is a felony. Representative Lamberth's proposal would strike the increased punishment for possession of marijuana.

Sentencing reform needs to be addressed in Tennessee. You get two convictions for misdemeanor possession of marijuana. The next conviction is a felony. It is even more troublesome with the doctrine of constructive possession where one could be charged with possession of  marijuana simply by being around the drug. This change is long overdue and even comes with some cost savings.

The next step is to increase the amount of marijuana possessed to make it a felony. Possession of over one half ounce of marijuana is a felony. I would propose increasing that amount to at least one ounce. It is time for the legislature to examine the sentencing scheme in Tennessee. We simply cant afford to send everybody to jail for minor offenses. Fix problems rather than lock people away.

My First Visit To The Van Buren , Tn Courthouse

I made a court appearance today in Van Buren County Tennessee today. I have appeared in all Middle Tennessee counties with the exception of Cannon County Tennessee . It was a beautiful drive especially between Sparta and Spencer. Here is a little information on the general sessions court procedure.

General Sessions Court in Van Buren County happens on Thursday. After you have been arrested , your first court appearance will be in a week or so from the date of arrest . The first court date is not that big of a deal. No police officer is present . If you need time to hire a lawyer , the court will grant you a continuance . At the first court date , you may be able to settle the case via a plea bargain . The second court will be critical. The officer is subpoenaed and you must be ready to deal with your case.

One side note , Highway 111 is often a shortcut for folks traveling to and from Bonnaroo . So ,obey the speed limit and travel safely.

How Does The Tennessee Bureau of Investigation Test Marijuana ?

Most folks have a different idea of what forensic labs do in the testing of evidence. We think of lab coats and complex scientific tests like we see on CSI. It is not always true. if your arrested for possession for marijuana in Tennessee ,  the evidence seized may  eventually be tested by one of the Tennessee Bureau of Investigation (TBI)  crime labs. How do they test marijuana for use in the court room ?

First , marijuana is examined under a microscope to determine botanical identifications  The lab person is looking for trichomes . Some organizations suggest there must be training in botanical identifications in order to make these findings. The data should also be reviewable in evaluating test reports. For example , a picture taken of the examination. Easily done with a digital microscope , but not done by the TBI .

The next test is the use of the Duquenois/Levine test. It is simply a reagent that is put on the marijuana and then chloroform is added. It is then supposed to turn purple. Again ., no photo is taken. That is the end of the testing that the TBI does. Is there more to the story ?

The National Academy of Science in their book  "Strengthening Forensic Science in the United States"  recommends those two tests in addition to a thin layer chromatography test. Guess what ? The TBI does not use that test to my knowledge . The Scientific Working Group for the Analysis of Seized Drugs recommends another layer of tests to confirm if a substance is marijuana. The chair of the core committee happens to work for the Drug Enforcement Administration .

The question is why does the testing for marijuana in Tennessee does not comply with the minimum standards set by two scientific groups ? Indifference. No concern of scientific accuracy. You fill in the correct answer.

 

In Alabama , A Officer's Word is Good Enough

One of my interests in the many components of the criminal justice is the area of forensic science . There has been a common occurrence of problems in  forensic crime labs across the country . One of the biggest cases was of Annie Dookhan who falsified thousands of drug reports . Ms. Dookhan was later indicted and plead guilty to her  crimes.

Alabama has found a way to avoid any problems in the forensic laboratory . They don't need no stinking test. Robert Siercks was convicted of possession of cocaine. The evidence at trial was that the rock type substance recovered by the police was cocaine . How did they prove it was cocaine ?  The officer testified based on his experience and the field test that the substance was cocaine. The officer preserved a piece of the substance but no forensic testing was performed . A jury convicted Mr. Siercks and his appeal to the Alabama Court of appeals was denied. Mr. Siercks  was sentenced to 15 years .

The prosecutor had this to say ;

"There is no constitutional requirement that the prosecuting authority provide any particular 'type' of evidence in any case," Barnett said. "The only constitutional requirement is that the jury be convinced beyond a reasonable doubt as to the elements in a case."

Granted , there is no constitutional requirement of  forensic testing in drug cases , but do we want to guess it is drugs before we send Mr.Siercks off to prison for 15 years. Based on Alabama's reasoning, a police officer could look or sniff someone and testify someones blood alcohol level is over .08 % alcohol. If you have a crime lab use it. The sad thing is that Tennessee has upheld a conviction based on a field test. I am glad to report that is a rarity and most drugs are eventually tested by a forensic crime lab.

I agree that there is no requirement to scientifically prove something is an illegal drug . Maybe it is about time.

Should Inmates Seek Clemency On Low Level Drug Crimes

The U.S. Justice Department is taking a new approach on drug crimes. The department is encouraging low level convicted drug dealers to request clemency . Clemency would allow up to 12,000 inmates to be released early . The federal system is making the move to save money on the costs it takes to house a prisoner. They also realize of the inequities of the harsh drug sentences based upon mandatory minimum sentences.

Contrast the Federal approach verses the approach in Tennessee . Tennessee is going in the opposite direction. Several years ago the Tennessee Legislature passed the Drug Free School Zone Act which increased the punishment of drug offenses within 1000 feet of a schools zone as well as other types of locations like daycare centers. So if ones possess .5 gram of cocaine with the intent to sell or deliver within a 1000 feet of a school zone a defendant is looking at 15-25 years in prison at 100 %. . You drive by a school on the interstate with some drugs and you are in the cross hairs. The practical effect is the drug free school zone is used as a hammer to force plea bargain agreements where a prison cell is the next stop.

Now don't get me wrong. Drugs in schools are a bad thing and should not be tolerated. However , the law does not require a nexus between the school or any activity and the criminal conduct . You just drive by the school and your guilty of a drug free school zone charge. Every bill in Tennessee must have a fiscal note attached as to let everyone know how much this is going to cost.

The question is whether we should put low level drug dealers in prison or try some measure to rehabilitate them. Common sense tells me that the drug free school zone laws are not being used for what they were designed . The decision to prosecute these cases have given too much power to the District  Attorneys . Fill up the prisons or solve the problem. The federal system seems to be moving towards fixing the problem . Which way will Tennessee move ?

 

Closing note. I put today's blog post up for a vote on Twitter. Please comment on the blog or follow me on Twitter here https://twitter.com/robmckinney . Let me know what interests you.

Congressman Pleads Guilty in Cocaine Case

A Republican Congressman from Florida pleaded guilty in Federal Court in Washington D.C. to a misdemeanor charge of possession of cocaine. He was sentenced to one year of probation. He bought 3.5 grams of cocaine. How would that play out in Nashville,Tn. ?

First , possession of more than .5 grams of cocaine with the intent to manufacture , deliver ,or sell a controlled substance  carries 8 to12 years in jail plus a big fine. It is a felony . It carries 15 to 25 if you are within a 1000 feet of a school zone. The defense for the Congressman was it was for personal use and not for resale. According to news reports, the cocaine was bought for his own use and had sometimes shared it with others.

The reason he got a break was there was no evidence he intended to sell or deliver cocaine . Now the police might have made a case that he delivered the cocaine. Under Tennessee law , an accused can assert that he just possessed or causally exchange the cocaine to avoid felony charges. The law treats users differently from sellers. Causal exchange contemplates a spontaneous passing of a small amount of drugs where money may or may not be involved. The amount of the cocaine could be a problem for a reduction to a misdemeanor under Tennessee law.

Warning. I am the Police. Now Admit Your Guilty.

A question that pops up over and over again is " Does a confidential informant have do tell me they are the police ? "  One can count on the police recording activity of illegal drug sales or interviewing suspects under criminal investigation . Secret recordings are one of the standard tools that police use every day.

 

Police have no legal duty to advise a suspect that they are recording their conversations.Both federal law and Tennessee state law does not prohibit a party to a conversation from taping the conversation. The legal theory is there is no expectation of privacy. It is different if the party being taped had an expectation of privacy. In one Tennessee case , the Tennessee Supreme Court threw out a taped statement made between a defendant and their family members that was secretly recorded.

If you are questioned by the police , you must assume you are being recorded . an investigation does not trigger  your rights under Miranda. Likewise, a police undercover officer or a confidential informant does not have to warn you before you sell or buy drugs from them. With today's technology everybody has access to recording your phone calls.

I remember my father's words when I got my first job working at Nashville's courthouse."Son don't say anything at that courthouse that you don't want to read on the front page of the newspaper".

Who is to Blame for Tennessee's Prescription Pill Abuse Problem ?

                                  

Prescription pill abuse is out of control in Tennessee. Early in my career as a attorney, the drugs of choice were cocaine and marijuana. In the last few years, there has been an explosion in the abuse of prescription pills. The question is why and what can we do about the problem. Most folks think that because it is regulated by several groups that it should not be a problem. Boy are they wrong. Tennessee's criminal courtrooms are filled with folks that got addicted to these pills.

Here are some hard facts;

  • Tennessee is in the top 1% of states that sell pain pills.
  • Tennessee is in the top ten states for drug overdose deaths.

Here are three of the problems as reported in a recent article:

  1. Lax reporting standards that would prevent doctor shopping.
  2. The increase in pain clinics and pill mills.
  3. Tennesseans have poor health which triggers an increased demand for pain medication.

Prescription drug abuse means that you are taking a drug not prescribed for you or you are taking it for other reasons or in dosages not prescribed.

What should we do ? Crack down on the source. Better reporting and increased punishment for the pill mill doctors. What should we not do ?  We need to avoid criminalizing drug addiction. Good hard working folks get addicted to these pills. Their only solution is to increase the dosages. Then , a doctor finally discovers the problem and cuts the patient off from the pills. Forgery of prescriptions or buying pills off the streets is what happens. Our state's reaction is always to throw somebody in jail. The problem needs to be addressed with treatment of this problem not jail cells.

Funny , I have not seen one proposal for treatment or help in any proposal to the Tennessee legislature. Just crime and punishment.

 

 

 

Do You Have to Let the Police Search Your Car ?

My last post illustrated your constitutional right to remain silent when confronted by police. Following up on that theme is a report from the morning news. Eric Bugg was stopped for following a tractor trailer truck too closely. Once he was stopped, a Nashville police drug interdiction officer  saw two duffel bags in the back seat. The officer asked to search his car. Surprise. The officer found 29 pounds of marijuana in the car. Bugg goes off to jail charged with a drug crime and  his bond set at $150,000.00. Bugg is facing at least 2-4 years in jail plus a fine. What could he have done different ?

A citizen has a right to refuse a request to search your car or truck. There is this constitutional protection called the Fourth Amendment. It prohibits an illegal search and seizure. Sure , there are exceptions like the officer smelled the weed. The teaching point is you do not have to consent to an police officer's request to search your car.

Prescription Drug Abuse #1 Problem in Williamson County

                        

Ken Whitehouse of the Nashville City Paper recently interviewed Williamson County Sheriff Jeff Long . The interview focused on the challenges faced by law enforcement In Williamson County , Tennessee. Surprisingly , Sheriff Long stated prescription drug abuse is the number 1 problem facing the Williamson County Sheriff's office. Here is some of his comments;

 Our number one issue is prescription drug abuse. We have people that go “doctor shopping” looking for prescriptions and kids that raid medicine cabinets and bring it into the schools. We are combating that problem with enforcement and prevention

Sheriff Long blames doctor shopping. I agree with him to some degree , but what about all the pain clinics that dole out these paper prescriptions like candy. Who has a duty to prescribe these powerful medications responsibility ? Prescription drug abuse is a huge problem across our country not just Williamson County.

The key question should prescription drug abuse be treated primarily as a medical problem or a criminal justice matter.  The blog Grits for Breakfast posted about the criminalization of prescription drug abuse in Texas. There were some interesting facts that were discussed. Dr.Emilie Beck testified that one in five Texas teens have experimented with prescription drugs.

What is the answer ?  I agree with one proposal in Texas. All first offenders would be presumed to get treatment rather than jail or probation. The presumption would not apply to drug trafficking crimes. Where someone gets addicted to pain pills , society must fix the problem of addiction rather than just send people off to jail.

 

Drug Sniffing Dogs At The Supreme Court

Two drug dog cases were heard were on the docket this week at the United States Supreme Court. The use of dogs to detect illegal drugs is on the rise. Criminal defense lawyers and the court's  struggle on when the use of the drug dogs may trigger a Fourth Amendment violation.

     

The first case involves Franky seen above. Franky was walked around the outside of a house in Florida. Franky signaled to his handler that there were drugs inside. A search warrant was obtained based on Franky's signal. Surprise. The police found a marijuana growing operation inside. The Supreme Court has always held that the privacy of the home is at the core of what the Fourth Amendment protects . Here is some of the comments from two of the justices;

There was a dispute about how long Franky had spent sniffing around, and Justice Stephen G. Breyer suggested that the answer might affect his analysis.

“Would a homeowner resent someone coming with a large animal sitting in front of his front step on his property and sitting there sniffing for five to 15 minutes?” he asked, indicating that it would not be plausible to assume consent in that situation.

Justice Elena Kagan seemed to agree. “This dog is there for some extended period of time, going back and forth and back and forth, trying to figure out where the greatest concentration of the smell is,” she said, adding that it seemed to be “a lengthy and obtrusive process.”

My prediction is the court will not allow this sort of intrusion on a person's home.

The second case Florida v. Harris is about Aldo. Aldo helped his trainer find some methamphetamines. The issue in this case was  the reliability of the drug dog had not been adequately established.  One judge opined that this issue should be left to the trial judges. I agree. It is hard to establish a black line test on what should be  qualifications of a drug dog . Prediction. Harris loses.

 

Two drug dog cases at the court in the same day. Probably two different results will occur.

Federal Judge Calls For Legalizing Marijuana

Federal Judge Richard Posner has recently spoken in favor of legalizing marijuana and abolishing many of the country's drug laws. What gives more weight to his position is his status. Judge Posner is a widely respected federal judge and is considered a conservative .Here is some of his comments;

"Personally, I don't think we should have a fraction of the drug laws that we have. I think it's really absurd to be criminalizing possession or use or distribution of marijuana," Posner said, prompting applause from the audience at Elmhurst College in Illinois. "I can't see any difference between that and cigarettes."

I'm skeptical about the other drug laws. I don't know how much we know, for example, about whether cocaine is really a disabling drug or whether it's something people can take and lead more or less normal lives. Clearly there are, you know like LSD, obviously very dangerous drug, although I don't think we have a good idea how many people really jump out of windows because they're taking LSD. ... There are problems, but I think the notion of using the criminal law as the primary means of dealing with a problem of addiction, of misuse, of ingesting dangerous drugs, I don't think that's sensible at all. And that is responsible for a high percentage of our prisoners, and these punishments are often very, very severe.
 
 

 

Is it time America rethinks the legality of its marijuana laws ? What do you think ?

Does the Smell of Marijuana Justify a Search Warrant ?

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.

 

Police Tactics in Wayne County Tennessee

 

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.

Mandatory Sentences Give Prosecutors The Hammer

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.

 

Failure to Excerise Constitutional Rights Sends Man To Prison

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 .

Cheatham County Starts Drug Interdiction Patrol

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.

Drug Free School Zone Charges Are The Hammer

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.

Motion to Preclude Creation of Snitch Testimony

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.

Drug Free School Zones and The War on Drugs

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.

Police Drug Interdiction Tactics

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.

Bonnaroo Criminal Survival Guide

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.

 

Video of an Execution of a Seach Warrant

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.

Seach and Seizure Issue at the Tennessee Supreme Court

 

On March 19th 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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Drug Comapny Takes Steps to Prevent Drug Abuse

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.

The Use of Snitches or Confidential Informants in Drug Cases

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.

Tennessee Drug Interdiction cases

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.