Dallas Criminal Defense Lawyer Blog

Drug possession cases tend to be factually simple scenarios. The State must prove that you had care, custody and control of X, and that X is illegal. We'll save possession for another day. Today let talk about proving X is marijuana.

In most cases drug DPS labs provide analyze the putative contraband and attempt to positively identify whatever it is the police sent them (you'd be shocked how often drugs aren't actually drugs). Not so much with marijuana.

By far, the most untested alleged controlled substance in Texas is weed. In an effort to convict the maximum number of otherwise law abiding citizens for the least cost many marijuana cases are brought without the benefit of drug testing.

Why? First, lab testing takes time and money. We are trying to run this drug war on the cheap. Second, most judges and juries will believe a cop when he says that he can instantly diagnose a green leafy substance as marijuana. "I recognized the distinct odor of burnt marijuana" is a common arrest report proclamation.

Most Americans who have attended college or any outdoor music event (ACL, any 311/Black Crowes concert) remember that pungent odor. When LEO tells a judge/jury that he smelled weed, they believe him. A question I've always had is-Is weed the only thing that smells like weed? I can't find a good answer to that question.

What I've learned is that LEO doesn't know, doesn't want to know, and most judges/jurors don't care anyway.

Beyond odor officers will also testify they can recognize weed on sight. I've always been a little more skeptical that LEO can visually diagnose a plant material pot. Why? Because of the way Texas defines "marihuana". For that, let's go to the Health and Safety Code.

(26) "Marihuana" means the plant Cannabis sativa L., whether growing or not, the seeds of that plant, and every compound, manufacture, salt, derivative, mixture, or preparation of that plant or its seeds. The term does not include:

(A) the resin extracted from a part of the plant or a compound, manufacture, salt, derivative, mixture, or preparation of the resin;
(B) the mature stalks of the plant or fiber produced from the stalks;
(C) oil or cake made from the seeds of the plant;
(D) a compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks, fiber, oil, or cake; or
(E) the sterilized seeds of the plant that are incapable of beginning germination

Some states define marijuana as THC. Texas has gone the botanist route and made this one subspecies verboten. When LEO says he saw, smelled, or used the Force to identify a substance as marijuana what he is really saying is that he can instantly diagnose plant material as Cannabis Sativa L. That's an amazing claim considering there are 170 plants in the Cannabaceae family, not to mention thousands of other "green leafy substances" to exclude.

Sativa, Indica, Ruderalis
Cannabis itself has 3 subspecies- indica, sativa, and ruderalis. I know what you're thinking. "Wouldn't that make C. Indica and C. Ruderalis legal? After all, the plain language of the statute only outlaws one subspecies."

Not so fast Willie. This is Texas and our State has a fetish for malum prohibitum prosecution. We don't let something like the wording of a law get in the way of a drug war. To that end our Court of Criminal Appeals rewrote the statute to seemingly include all subspecies- Williams vs. State, 524 S.W.2d 705. Go Go Gadget Judicial Activism!

Williams is a particularly disturbing case where the court cites the Equal Protection clause to expand police power. That is, it woudn't be fair to sativa defendants if we didn't arrest, prosecute, and incarcerate indica defendants. That's not equal protection, that's equal oppression. Moving on.

Seeds and Stems
You'll notice that the definition of marihuana excludes numerous items including oil, cake, salts and fibers etc from stalks, sterilzed seeds inter alia. Those items should not be included when the State weighs your weed. Defense lawyers refer to this as "removing seeds and stems". I've never seen a case involving oil, cakes, or salts; it just hasn't come up.

You can't count on the police or DPS lab to remove these items before weighing. They have no incentive to check because our reefer mad appellate courts shifted the burden of proof to the defendant. Nice.

It is the defendant's burden to establish the seeds were sterilized. Doggett v. State,530 S.W.2d 552, 554-56 (Tex. Crim. App. 1976); Nowling v. State, 801 S.W.2d 182, 184 (Tex. App.--Houston [14th Dist.] 1990, pet. ref'd); JohnJock v. State, 763 S.W.2d 918, 919-20 (Tex. App.--Texarkana 1989, pet. ref'd).

Weight issues comes up most often in cases that are close to a statutory limit. For example, over 4 ounces is a felony, but less than 4 is a misdemeanor. However, any usable amount up to two ounces is a class B so most joints are never reweighed.

Wow. It only took nine months but Barack Obama actually moved to limit federal power and increase State's rights. When Texas finally passes our MM laws (I'm guessing around 2109 after the other 49 states legalize), then our fellow Texans MM patients will not have to live in fear of federal, or state prosecution.

The most bizarre response to this common sense move is from Bryan Fischer at GOP.com.. Mr. Fischer argues that it's unconstitutional for the President NOT to order prosecution MM patients who comply with State law?

Frankly, it is unacceptable for a president to pick and choose which laws he wants to enforce, and which ones he doesn't want to enforce. He has only a handful of Constitutional responsibilities, and among them is the responsibility to "take care that the Laws be faithfully executed." His piece is so spun that he cites the commerce clause as the legitimate basis for federal prohibition. When did the right embrace the commerce clause as legitimate source of endless federal power?

Unfortunately, he doesn't seem to care about his Constitutional responsibilities..

Really? This only makes sense if you know nothing about a) prosecutions (which are completely discretionary and b) the Constitution. Bryan, it's completely acceptable for a President, or DA to decide what laws to enforce. Part of executive authority is deciding how to use limited resources.

The Constituion doesn't require that all laws before enforced at all times. In fact, some scholars even think the Constitution actually limits the power of the federal government. It's been a while, but I remember reading something about that in the 9th or 10th amendments.

You know what America needs, more people in jail on federal drug charges. Why limit the tyranny of cannabis prohibition to Americans? Let's spread Nixon's WOD all over the continent and import Canadians for incarceration! Hope and Change!

Our latest political prisoner in the war on weed is Marc Emery. Marc is a marijuana activist/cannabis seed distributor in Canada. Marc sells marijuana seeds and the Canadian government happily taxes the profits. Marc is the founder of the British Columbia Marijuana Party and a leader in the movement towards cannabis sanity in the Great White North. Marc was recently arrested in Canada, and is awating deportation to America to face a 5 year sentence on federal drug charges.

Marc is being prosecuted for sending cannabis seeds through the US mail. A google search will show you that there are a few dozen operations offering a similar service. Consensual crime enforcement is nothing if not arbitrary and capricious. When millions are breaking the law the government can pick and choose whom to prosecute. While Marc was arrested for conspiracy to distribute his real crime was being an advocate for cannabis reform. Nothing pisses of the DEA mutawas like political dissent.

Think your federal government is above using the criminal justice system to destroy free speecht? This isn't the first time, nor will it be the last.

Just booked my trip to the NORML legal seminar in Key West. I've been on the NORML legal committee ever since I opened my private practice. I'd like to encourage any lawyer who is ashamed of cannabis prohibition to join the NLC.

Besides the justness of the cause being an NLC member usually pays for itself. Cannabis consumers/producers and medical marijuana patients appreciate an attorney who won't judge them, and recognizes that these defendants are America's political prisoners in the War on Drugs. For far less than you would pay an SEO scam company you can join the proud freedom fighters on the NLC.

This years conference is at the Pier House in Key West. I've never been to Key West and I look forward to exploring the island. Do you need some CLE hours and a vacation? Meet me in Key West. You do not have to be a NORML member to attend (though you do get a discount on registration).

Any Key West travel tips would also be appreciated.

Every cannabis defendant I meet gets a few self defense tips at our consultation. Until we legalize cannabis cops are going to arrest for it. Regardless of the life altering consequences, or if the defendant is a good person, or if you "help" the police by being honest the full weight of the criminal justice system will be brought to bear on otherwise law abiding Texans.

The punishment for simple possession in Texas is up to 180 days in jail and a $2,000 fine. While most are sentenced to probation that isn't good enough for me. No one should be arrested or put through the probation gulag for possessing a plant. Until things change, cannabis consumers owe it to themselves to exercise caution to avoid LEO's wrath.

Once you have a possession arrest on your record things only get worse. Now, every time LEO pulls you over and runs your license he will think you are riding dirty. Cannabis consumers of America, be ever vigilante. Don't count on your cop being "cool" and letting you go. Instead, be proactive and protect yourself from our state's stupid pot laws.

Here is what I tell my marijuana clients-
1. If possible move to California or any state that practices cannabis sanity. If you can't, then try to quit smoking weed until it is legalized. If those don't work then...

2. Don't let your car stink like weed. Our appellate courts have made "the odor of burnt marijuana" into probable cause to search a vehicle. Unless you want LEO digging through your console keep things smelling fresh.

2. Don't answer questions that will incriminate you. When you are pulled over in Texas you only have to ID yourself and provide insurance. If you don't have a good answer to "Are there any drugs in the car?", then don't give one. Asking for a lawyer is a good default answer to questions that could incriminate you. Trust me. It makes the cops crazy pissed, but they aren't going to help you anyway.

3. NEVER EVER EVER EVER CONSENT TO A SEARCH. I've covered this a few times already, but the police only ask to search because they have already profiled you as a criminal and they don't have probable cause. If the police ask to search say no, and then ask for an attorney.

"But the police said they would search anyway, or call out the drug dog!"- That's fine. If the police want to violate your constitutional rights then let them. That's where I come in. If a search is illegal, and the judge agrees, the evidence must be suppressed.

Most people consent believing they can avoid the short term problem of getting arrested if the cop doesn't find anything. If you are pulled over think long term, not short term.

The end result of an illegal search is that you get arrested. Getting arrested is not the worst thing that can happen to you. The probation/drug court/piss test/fine/court costs/NA nonsense is much worse. Put on your big boy pants and accept you are going to jail. You will be allright. It's much worse to get convicted, than get arrested.

I've discovered there is an inverse relationship between blogging and legal work. I'm grateful to be busy in this economy, but it's giving me blog fail. What I do have time for is another roundup!!

On Sotomayor-
First, I'll admit I have not done an exhaustive study of her opinions. I'm only familiar with the cases that have been highlighted by the media/blogosphere. My scant review of her track record indicates she is less of a liberal than a knee jerk statist. She seems to consistently side with the government over the individual. Whether it's cops (even really bad cops), eminent domain, affirmative actions programs, et al, the winner is the state.

The debate over strict constructionism vs. legislating from the bench is talk radio nonsense. Instead we should be concerned with a nominee's view on what protection, if any, the Constitution provides the individual. If Soto's case, it seems the individual is the means to the ends of the current political majority.

It's a strange day when ever the "liberal" SCOTUS nominee hates criminal defendants. Can we just give Ginsberg an extra vote?

Acetaminophen will kill you! FDA to the rescue!
We are all children of the wise omnipotent federal government. Lest we forget how important they are, a fresh crisis will be invited to remind us.Today, it's Tylenol. The media is falling over themselves to report on how dangerous acetaminophen is. I've taken a few hundred doses of aceta in my life, I'm still here, liver and all.

There are roughly 300,000,000 Americans. Last year, about 500 died from taking too much Tylenol. What does that tell you? That we need new laws and restrictions on Tylenol use? Or that 299,999,500 Americans understand how to use pain relievers safely and deserve the simple freedom of buying Tylenol without a prescription, and/or mixed with Nyquil?

Let's magnify the idiocy- last year acetaminophen killed 500, pot killed zero. Both provide pain relief. Moving on.

Payday loans and the Hot Check Hustle
I recently blogged about the unholy alliance between DA's and local business.

Today, I heard that the payday lenders have picked up on the fact they have an on call law enforcement debt collector. Allegedly payday loan companies are threatening to send bounced checks to local DA's offices unless you pay the check and some hefty "fees." That is, you get the loan, sign a post dated check, and if the check comes back your loan shark/pay day lender threatens to call the DA. This the kind of behavior we encourage when we make our prosecutors into human repo men and turn the county jail into debtor's prison.

Threatening jail time to collect a debt violates our fair debt collection act (ironically, actually using the DA to arrest the debtor doesn't).

I had another two court day; morning in Dallas, and afternoon in Kaufman. I had a few passes and an open plea in Dallas. I saw a few friends at the courthouse one of whom pointed out a MADD courthouse runner.

MADD sends spies to the courthouse to monitor the DWI cases. I've never actually seen one until today. He was an earnest looking young man armed with a notebook. I wonder who he reports to and what he is reporting? If I see him again I'll ask.

On my open plea- I had a DWI case (don't tell MADD), the state made a plea offer but we chose to plead open to the judge.

That is, my client pled guilty and asked the judge to set punishment. It worked out well and we received reasonable terms.

Judges are an important safety valve on the criminal justice system. If the DA is worried about offending MADD and won't make a reasonable plea offer, sometimes you need a judge to dispense justice.

How much is weed in Terrell, Texas?
I arrived in Kaufman just in time for a 1:30 setting on a felony case. There was a hearing underway in which the defendant had pled for 8 years TDC and was asking for shock probation. Shock probation is where you serve a little TDC jail time but get out on probation. The idea being that the "shock" of jail will scare you straight.

The State wanted the judge to deny the motion and called a narcotics officer to the stand. A typical strategy in a drug sentencing is for the State to highlight the monetary value of the transaction. As an objectivist this has never made sense to me. Voluntary transactions are inherently moral. This defendant was helping to meet the perpetual demand of our nation's millions of cannabis consumers. If he was selling cigarettes or Jegermeister there wouldn't be an issue. Such is prohibition.

The narcotics officer was asked how much weed costs. He responded that in Terrell, Texas his last buy was $250 for a quarter pound. He also said a full pound may not be $1000 (economies of scale happen).

Here is what is amazing about supply and demand. Terrell is a small town of 13,000. You can't buy sushi in Terrell, but every day of the year you can buy pot, crack, meth etc. Unlike the doltish marijuana laws of our state, the laws of supply and demand are always obeyed.

The officer went on to discuss the fundamentals of the marijuana market. Marijuana is bought in El Paso and shipped east (Dallas, Atlanta etc). The border price will rise or fall depending on border security and whether the buyer has a decent connect. The retail price depends on the risk involved, the number of mules required etc.

So what happened to this defendant? For the "crime" of possessing 80 pounds of a verboten plant he is serving 8 years in TDC at taxpayer expense.

What did this prosecution accomplish? We could ask the narcotics officer what happens when you reduce supply and demand stays the same. Somewhere 80 pounds of marijuana did not arrive, the local price will increase, and supply will follow.

Medical Marijuana Patient Protection Act
No issue better highlights the moral bankruptcy of law enforcement than the federal prosecution of state licensed and legal medical marijuana providers. Since SCOTUS long ago nuetered the 9th and 10th Amendment we now require a federal law that states the obvious; the feds should not prosecute conduct that is legal under state law.

To that end the Medical Marijuana Patient Protection Act, sponsored by Barney Frank and Ron Paul et al, would prevent the feds from prosecuting state licensed and legal medical marijuana providers. I've already contacted my reps. Click here to voice your support for this compassionate common sense measure.

For every action, there is an equal and opposite political reaction
Hot on the heels on the Medical Marijuana Patient Protection Act comes a proposal from village idiot/US Rep Mark Kirk of Illinois (R) as in R you surprised this is a republican idea?))

Mark believes the marijuana today is much stronger than the stuff his friends, George Bush, Barack Obama, Newt Gingrich and Al Gore smoked back in the day. Instead of say, legalizing marijuana and regulating THC content, or requiring labels with the THC "proof" just like we do for alcohol, Mark's proposes a 25 year minimum sentence for "drug dealers" with "kush" marijuana.

Great idea. Just what our country needs during this recession, more marijuana defendants in federal prison with mandatory 1/4 century sentences. Mark should get his Mensa application in before this sudden burst of genius dissappears.

Mark's website bills him as pro-personal responsibility. I've never understood how personal responsibility equates to throwing adults in jail for a quarter century for possessing a plant. What is responsible about blind obedience to tyranny? That's not responsibility, that obedience to your government masters.

Polka Fest 09-
This weekend is the annual Ennis Polka Festival. I'll be at the KJT (Katolická Jednota Texaská) Saturday night (around 8ish) to see the Czechaholics and Brave Combo.

Come to Ennis and experience this one of a kind polkapalooza. Most of the polka dances can be accomplished with a slight variation of the country two step (quick, quick, slow, or something like that). No problem for most people to pick up. However, I largely rely on my wife to count the steps out loud while we are dancing. If NHTSA ever adopts the two step as a field sobriety test I"ll quit driving because I would fail every time.

DMN on DWI-
I'm not surprised that the various DMN "blogs" take a less objective journalism tone and adopt the informal blogger style. However, this DWI blood draw post seems to have been written by MADD. I've never seen such enthusiasm for blood tyranny before outside of MADD.

If you get pulled over for drunken driving this Memorial Day weekend, don't bother refusing to blow. Dallas police are gonna get a warrant for bulletproof evidence - your alcohol-laced blood. And they'll take it whether you like it or not.

First, "don't bother refusing to blow" is some pretty blunt legal advise. The decision to blow or not is complicated with legal and factual considerations. The kind of decision we used to allow defendants to make with counsel.

For example, in deciding to blow or not you should be aware that we still don't know what kind of software the Texas breath machine uses. Should we believe that our breath machine software is any less flawed than the Alcotest? Certain medical conditions can affect a breath score, as well as breath temperature. Should you blow or not? Depends, ask a lawyer, not a journalist.

Second, blood is only "bulletproof evidence" if you don't know anything about blood testing, or evidence. Blood tests are complicated and require precision in every step or the results will be corrupted. Precise scientific evidence and law enforcement don't always mix.

Also, just because a blood result is over .08 does not mean that the driver was over .08 when driving. We allow the make believe science of retrograde extrapolation to make that leap, but it's far from "bulletproof."

Finally, "take your blood whether you like it or not"? That sentence says a lot about the current state of DWI hysteria. We've gone GITMO on DWI suspects. You have no rights, and DPD has their needles ready.

Pot leads to crack and death says FBI director
Forcing our bureaucrats to advocate such ridiculous positions in public makes us all look bad. I'm sure this Robert Mueller guy is embarrassed and having to promote this idiocy. We should legalize pot if for no other reason than to end the public humiliation of our bureaucrats.

This must be some kind of secret federal government hazing ritual. Mr. Mueller is the pledge and before he gets a cabinet level position he has to get "punk'd" in front of Congress to show his loyalty. That makes more sense than his idea that we should treat pot like crack.

Thank you sir, may I have another!

I have interacted with hundreds of cannabis consumers. First as a public defender, then a prosecutor, and finally as a private defense attorney. Much of the debate over cannabis prohibition is about the plant and the effects of smoking said plant. Let me share my experience with the more important aspect, the people we arrest and prosecute for marihuana possession.

Talking about such a large population of defendants without delving into broad stereotypes is impossible. There is probably a neo nazi terrorist serial killer somewhere who loved marijuana. I've never met such a person but probability guarantees at least a few such cases. Instead of individuals let us paint in broad strokes, starting with young adults.

I believe that children are the future, put them on probation and make them pee and pay
It never ceases to amaze me that the group most often arrested, prosecuted, probated, and incarcerated for marijuana possession is the same group that gets the most government anticannabis propaganda. I would guesstimate (and NORML confirms) that at least 1/2 of the possession cases involve defendants under 25.

It seems that the above the influence/pushing back/ondcp nonsense is being rejected by the target audience.

Why do we tolerate the arrest and prosecution of our young people for marijuana possession? Bill Clinton, Al Gore, George W, and President Obama all used marijuana in their younger days. They were lucky enough to avoid law enforcement and went on to reach our nation's highest political offices.

It is absurd that we rely on the failure of law enforcement to protect our future leaders from the wrath of the criminal justice system. Statistically this approach makes sense. I would guess that 99.9% of all marijuana usage events occur without police intervention.

However, those who do get caught are sacrificed to the idol of prohibition and shackled with a permanent criminal record. Our young adults deserve better than this cruel reverse lottery.

Side note on probation/criminal records- Texas does not allow for the expunction of probation cases. Even deferred adjudication probation will leave a permanent arrest record. We are sabotaging the future of our young adults and branding them criminals.

Young adults make awful criminal defendants. They routinely confess that there is a joint in the car, or allow the police to search, or otherwise assist law enforcement in their own persecution. Fish in a barrel.

I will say that the internet age and the wealth of advice on handling police encounters is starting to make a difference, but not enough. Schools should teach police encounter self defense right after the Just Say No DARE class.

This group can also struggle with the demands of probation. Reporting, fines, fees, community service, drug education classes, drug testing, no drinking, don't go to bars, keep a job, don't leave the state, inter alia. Can you think of a worse time to be constantly monitored by the government than your early 20s? I'm surprised anyone under 25 finishes probation.

Older Users
I've represented more than a few older cannabis consumers. A lot of adults smoke pot, and not just burned out hippie types. According to our government the hard working mortgage paying career climbing pot smoker doesn't exist. Just like John Walter's "there are not pot smokers in jail" unicorn, this creature is also real. Don't believe me? Here is a list from the Agitator of successful pot smokers.

Many adults believe that smoking pot can be healthier than drinking or smoking cigarettes. They have made an informed decision to pursue cannabis for recreation instead of the government approved alternatives. I've had defendants tell me they never drink alcohol because of the health effects. Marijuana is their recreational choice.

The government establishment rejects this heresy and continues to waste millions of your tax dollars defending their orthodoxy. History has shown that change is possible, if not certain.. It took a while but eventually heliocentrism caught on everywhere, even in Texas.

Medical Marijuana Patients
While not a substantial population of defendants (our lege has failed to lead on MM legislation) I have seen those seeking relief from chronic and/or terminal illness. Texas' first successful cannabis necessity defense was last year in Amarillo. There is no certainty that defense would work in all MM cases (it's largely up the judge to allow MM evidence) and many MM patients never go to trial.

The stress of coming to court/sitting through trial, the cost of trial, and the risk of jail are so great that many MM cases plea bargain.

Rather than just debate the merits of legalizing a plant, we should also ask why we continue to arrest our friends, neighbors, adult children, and the infirm among us for the "crime" of cannabis possession. If cruel and unusual has any meaning, the arbitrary life altering arrest of thousands of Texans each year should meet that definition.

Did you know the police are allowed to lie to you? It's true. The police can make up facts out of whole cloth and present them as fact.

What if the police wanted you to open the door to your house so they could peek inside? One would think that cops must obtain a warrant before entering a private residence. Instead, cops can lie about your car being robbed so you open the door for them.

This brings us to our case of the day. Stern vs. State No. 05-08-00553-CR

Facts-
Plano PD received an anonymous call about the odor of marijuana coming from an apartment. Having solved all real crime in the area, Plano PD sends over a few officers to investigate. The cops have no warrant, no probable cause or emergency required to gain entrance. Instead Plano PD is hoping those inside the apartment will open the door so they can see the drugs in "plain view." (If a cop sees drugs he can come in and arrest without a warrant.)

A Plano PD cop puts covers the peephole in the door with his finger and then bangs on the door yelling "Dude someone is breaking into your car?" Plano police invent a malum in se crime so they can arrest for a malum prohibitum offense. A monument to all that is wrong with cannabis prohibition.

What happens next? The defendant quickly opens the door to investigate the fake car break in.

From the opinion-
"The aggressive action startled both uniformed officers. Endsley stated he was not expecting somebody to come running up to him like he wanted to fight. When appellant saw the officers, he took a step back into the apartment while the door was still open. At this point the officers described the odor as “a stronger odor of marihuana” and as “freshly burning marihuana” coming from inside the apartment. While the door was open, Endsley saw another person, identified as Bach, sitting on the couch. When Bach saw the officers, “it looked like he was rummaging through something at the time by the-on the couch.” The officers could not see Bach's hands. Bodacki stepped onto the threshold of the door to prevent appellant from closing the door. Bodacki saw beer cans and a marihuana “bong” in plain sight inside the apartment. The officers asked the two persons not to move."

The "aggressive action" startled the police? These cops cover the peephole, bang on the door, and then tell Stern his car is being burglarized and the cops act surprised when the defendant comes running outside to investigate? Are these cops also startled when the sun comes up each morning?

Issue- Can the cops fake a car burglary, cover up your door peephole, prevent you from closing the door, then peak inside your house, all without a warrant?

Holding- Of course, this is a drug search. How do you think we bust pot smokers?

The record reflects and the trial court found the officers entered believing officer safety and prevention of the destruction of evidence were paramount. Under these circumstances, we hold the officers had sufficient probable cause to enter the apartment. We next examine the issue of whether exigent circumstances existed to support a warrantless search of the apartment. When the officers first arrived at the apartment complex, they had information that there was a marihuana problem at a specific apartment. They corroborated this information when they arrived at the apartment and smelled marihuana emanating from the apartment doorway and then detected a stronger smell after appellant opened the front door. The combination of the odor of freshly burning marihuana, the fact it became quiet a few moments after the officers knocked, the delay in responding to the knock on the front door, Bach's furtive movements on the couch with his hands out of the officers' sight, and the need to determine that appellant and any other occupant in the apartment did not have a weapon and were not destroying evidence provided exigent circumstances for the officers to enter the apartment to conduct a protective sweep to secure the scene for officer safety and to prevent the destruction of evidence.

"Officer safety" has become a catch all term for drug searches. Since anyone could potentially be armed the cops are allowed to violate your rights if they just state that they thought you could be armed. No one wants cops to get hurt so our appellate courts allow all sorts of nonsense in the name of officer safety. We allow law enforcement to create these frightening home invasion situations and then when the residents act scared, nervous, or move in any manner the cops have further justification to search.

You know what would really enhance "officer safety"? If we quit sending armed police squads into private residences to search for pot. There should be a "citizen's safety" law to exclude these searches. Oh wait, that was the 4th amendment. Never mind.

Finally, none of this would have been necessary if Stern and his buddy had followed the "smoke pot and not get caught" rules from NORML. Never let your apartment smell like burnt marijuana, it's a bad idea. Your neighbor might be a narc and the Plano PD might stage a car jacking to gain entrance.

Good people from all walks of life use marijuana. Good people from all walks of life also get arrested for possession of marijuana. Until we correct the tragic failure of cannabis prohibition pot smokers must exercise self defense and common sense to avoid the wrath of law enforcement.

To that end here is a cartoon from NORML. It's more common sense than legal advise. Let me add one thing to this cartoon; never tell the police there is pot in your car. If cops ask about drugs, ask for a lawyer. Pot smokers are way too honest and trusting (unlike those who arrest pot smokers).

For the first time in my legal career I completed a county courthouse trifecta. I made an appearance in 3 different county courthouses in one day. This made me wonder what the record is for most county courthouses visited in a day? It can't be more than 4. All this travel has sapped my blogging energy. Instead of talking about the crazed Dallas ER cop or Sharon Keller, I'll offer a travelogue.

Collin County
Friday morning, I had a plea in Collin County. I live in Ennis (home of Polka Fest) which is about 65 miles away. Fog and speed traps slowed traffic on I-45. Traffic actual improved once I hit 75. I lamented over the suburban sprawl big box strip mall sameness that is southern Collin County and arrived in McKinney at 9:15.

I entered the courtroom and approached the ADA to discuss the plea deal we had worked out and..... the file wasn't in the courtroom. The ADA quickly dispatched an assistant to recover said file so we could finalize justice in this case.

"Are you an attorney?"
While waiting patiently in the courtroom the young man next to me inquired into my vocation. "Are you an attorney?"

I know that some lawyers dread the AYAA line. Personally, I don't mind helping pro se defendants avoid making horrible life altering decisions. My usual advise is- go hire a defense attorney (or ask for court appointed counsel), don't tell the ADA anything about your case, and don't accept a plea bargain without counsel.

After affirming that I was indeed a defense lawyer this defendant asked "Do you handle marijuana cases?" This had some personal comedic value. I skipped the opportunity to explain my marijuana defense credentials or direct this defendant to my numerous blog posts on the subject. Instead, I answered succinctly in the affirmative.

This defendant had been denied court appointed counsel and wanted to present two defenses to the ADA, an equity/de minimus argument and actual innocence. I explained that the Collin County DA has a less than progressive view towards pot cases. By that time my file had been retrieved so I told this defendant to call Hunter Biederman.

My plea was quickly finalized and I was on my way to Dallas.

Dallas
I arrived in Dallas at 11:00. I needed to pass a case, visit with an ADA on another case, and fix an earlier judgment that contained an error. This was largely uneventful.

To maximize my efforts I used the escalators. I usually employ the stairs at the Crowley center in an attempt to work some semblance of exercise into my daily routine. If you ever see me ordering a DWI video or visiting the special crimes unit (both are on the 11th floor) and I appear near cardiac arrest, this is why.

Sushi Sapporro Closed?
Around noon I emerged victorious ready to eat lunch at my favorite sushi lunch buffet, Sushi Sapporro on Oak Lawn. To my great shock and disappointment there was a sign on the door that the restaurant had violated their lease terms and was closed. Lunch fail.

Kaufman
Finally, I had to go to Kaufman to visit the DA on an upcoming DWI suppression (this should be an obstruction) and pick up some documents from the district clerk. Finally, I returned to my office, answered a dozen or so emails, returned some phone calls, and met with a potential client, who became an actual client.

My day was finished and I actually left work early, around 4:30 pm.

St. Patrick's, Old 97's, and Greenville
I spent my first St. Patty's on Greenville. My wife and a few friends attended the Old 97's concert at Energy Square (a parking lot on Greenville and University.)

Our group missed the parade, arriving at 3pm. We did catch the last of the parade goers leaving for their cars. I only saw one person throw up, and one person arrested. For all the complaints about the Greenville parade it seemed the vast majority was well behaved. There was an overwhelming police presence without much criminal presence. The level of law enforcement boredom approached TSA levels.

As for the show, at first I positioned myself close to the stage to rock with the real fans. I quickly bailed on that idea. The speaker placement made that area a distorted mess acoustically, like standing behind a jet engine. The further back we stood, the better the music sounded. We finally found a sweet spot at a table in front of the portable Hooters. The set list was predictably great and the band was in top form. A little cold weather kept the large crowds away, which to me is a plus. Overall, a great St. Patty's.

My only question- why were so many people wearing kilts? I thought kilts were Scottish.

My "friend" is 20 and his girlfriend is 17, is it legal for them to ___?
My earlier post on the age of consent in Texas has generated more than a few emails/comments asking if you or your "friend" will be in trouble if you date or know your romantic partner biblically etc. Most want to know if the "Romeo and Juliet" defense will save them from the clink. The volume of inquires makes me wonder if our public school's "just say no" abstinence only education is reaching every student.

First, I can't answer your question. That's legal advise, not something I can shoot off in a quick email or post in the comments section.

Second, even if the act of coitus is not criminal there are other laws you could be violating. Most people have never heard of the crime of "Enticting a Child". EAC sounds like a child molester sneaking children into his van. It's not.

EAC applies in any situation that "interferes" with child custody. For example- Your romantic partner's parents can call the police if you take your boy/girlfriend anywhere without their permission. Condoms may prevent STDs, but they won't stop DPD from arresting you.

Ron Paul vs. Stephen Baldwin- On Marijuana
If only cannabis prohibition apologists realized they all sound as ridiculous as Stephen. Is there even a debate left to be had on legalization?

Recently, I was appointed to a misdemeanor pot case in Kaufman. Yet another reason you should support HB 902, so you can quit paying me to fight this nonsense. The appointment sheet listed the charge as possession of marijuana under 2 ounces; a class B misdemeanor and that bail was set at $100,000.

Convinced this was a typo, I called the jail to confirm. It's true. This defendant has no holds, no blue warrants, no probation revocation, no other charges and the magistrate set a $100,000 bail for a joint.

One of two things is at play here. Either the defendant royally pissed off the magistrate, or he has some prior criminal history. The former is a fairly rare circumstance. As to the latter. Does arrest for non violent meaningless victimless "crime" + criminal history= trapped in jail with a ridiculously high bond. Is that an equation for justice?

When bail is set there has no been no trial, no hearing, no day in court. Innocent people are arrested every day. Bail is supposed to insure that a defendant will return to court. More often, it's used to punish defendants before a case is filed. Another "beat the rap, not the ride" element of the criminal justice system.

So now I have to call the DA to work out an agreed bail reduction, or file a Writ and have a hearing to get bond lowered. Either way, it's your tax dollars wasted on another pot case.

Over 60,000 thousand Texans were arrested last year for marijuana possession. How should we punish our fellow Texans for the "crime" of pot possession?

Support House Bill 902-
Currently possession of any usable amount of marijuana is at least a class b misdemeanor (2 ounces or less), the same level of offense as DWI. 902 would make possession of less than one ounce of pot a class c misdemeanor, basically a traffic ticket. Even if you disagree with the legalization of marijuana, you should support 902.

Every prosecution is a choice (opportunity costs are real) of how to spend your tax dollars. 902 forces prosecutor and police to quit wasting time on college kids with weed and move on to more important cases.

The vast majority (I would estimate at least 90%) of all marijuana arrests and prosecutions are for simple class B possession. It's not hard to catch marijuana consumers. They can be overly honest about having a joint in their console. Many also fall victim to police consent searches.

Misdemeanor dockets are clogged with these cases. Police officers waste hours investigating, arresting, and booking pot defendants. DPS drug labs are flooded with half burnt roaches that require expensive time consuming testing.

Busting pot users isn't cheap, and provides no public safety benefit. The less time officers, ADAs, and DPS lab techs spend on marijuana enforcement, the more time they can spend on real crime.

It's time to end the inanity. Call, write, fax, or email your rep today and ask them to support 902. Don't know who your state rep is? Too lazy to write an original letter? NORML has done all the work for you, just click here.

The medical marijuana bill is making it's way through the Texas house. HB 164 needs your help to survive.

Medical marijuana is inevitable. The only question remaining is when a MM bill will pass? You may think it is too soon, and that this isn't the right group of politicians.

I disagree, above all, politicians want to be reelected. Make it your duty to let them know where you stand. Call, email, fax, or write your rep and tell them to support HB 164. Even if Rick Perry vetoes this bill the further HR 164 gets, the easier it will be to pass in the future.

I've seen the prosecution of MM patients firsthand. It is an abhorrent practice that degrades our justice system. We can work to change the system, or punt our obligation to future generations.

Finally, if you are a Texas MM patient who wants to be heard call 512-585-3846 to speak with Texas NORML.

Here is an email I received today from Texas NORML director Josh Schimberg.

Hey all you Texas NORML supporters!

We have an exciting update on HB 164, the medical marijuana bill currently working its way through the Texas Legislature! And, we have special requests for taking action on this issue.

On February 12, 2009, HB 164 was officially assigned to the Public Health Committee in the Texas House of Representatives. The most exciting part of this committee assignment is that the bill's author, Rep. Elliott Naishtat (Austin), has been assigned to be Vice Chair of the committee! Also, HB 164 has picked up a co-author, Rep. Lon Burnam (Ft. Worth).

Below is a list of the members of the Public Health Committee, with areas they represent and links to contact them. If you need any help composing a letter of correspondence to your representative, please do not hesitate to contact us...

Committee Members:

*IF YOU, OR SOMEONE YOU KNOW, LIVE IN ANY OF THESE REPRESENTATIVES' DISTRICTS, PLEASE CONTACT THEM AND RESPECTFULLY REQUEST THAT THEY SUPPORT, AND VOTE FOR, HB 164.*

* Rep. Garnet Coleman, Dist. 147 (SW Houston/Harris County)
* Rep. John E. Davis, Dist. 129 (S/SE Harris County/Pasadena)
* Rep. Veronica Gonzales, Dist. 41 (McAllen/Palmhurst)
* Rep. Chuck Hopson, Dist. 11 (Jacksonville/Crockett/Henderson/Carthage)
* Rep. Susan King, Dist. 71 (Abilene/Sweetwater)
* Rep. Jodie Laubenberg, Dist. 89 (Rockwall/Farmersville/Melissa)
* Rep. Jim McReynolds, Dist. 12 (Lufkin/Coldspring/Woodville)
* Rep. Vicki Truitt, Dist. 98 (Southlake/Ft. Worth/Grapevine)
* Rep. John Zerwas, Dist. 28 (Simonton/Hempstead/El Campo/Wharton)

Even if you do not live in one of these districts, you can still contact members of the Public Health Committee to ask for their support on this issue.

You can also contact your own representative to request a co-sponsor of the bill.

Also, it would be very helpful for everyone to contact their State Senator and request that a similar bill be introduced in the Senate...

Thank you for taking action on this bill!

Cannabem Liberemus!
Josh Schimberg
Director
Texas NORML
http://www.texasnorml.org
http://www.myspace.com/texasnorml

The greatest Olympian of this decade is losing endorsement deals over cannabis use. I have a paltry ad budget, but I am willing to dedicate 100% of those funds to hiring Michael Phelps. Perhaps I could hire Michael to swim the Trinity with a Robert Guest.com speedo.

Michael, you are still an American hero. You have nothing to apologize for. Millions of Americans, including the current and two former Presidents, have partaken in the recreational use of cannabis.

I'm proud to defend cannabis consumers, and I would be proud to extend an endorsement deal to someone with firsthand knowledge of the illogical persecution they face. Shame on the bureaucratic fools who would exploit this situation for political gain. Shame on companies like Kelloggs who would abandon you. And shame on the asshat who sold your photo to the tabloids.

The continuing tragedy of cannabis prohibition can benefit from comedic commentary. On that note, here is a "really?" bit by Seth Meyers.

The debate over morality and the law is one familiar to any law student. Every 1L is taught the difference between malum in se and malum prohibitum crimes. The former are crimes that are evil (murder), the latter are crimes that are wrong because the government says so (gambling, pot, expired registration etc).

A recent blawg debate asked "Is it immoral to break the law?" To any person who isn't paid to convict the answer is an obvious no. Laws are written by politicians, not exactly the moral arbiters of our time. Only the most tortured definition of morality would include "anything the majority passes a law against."

What is not often discussed is the morality of enforcing the law. When is it morally wrong to arrest and prosecute someone for illegal behavior? Prosecutorial apologists would argue that laws represent the morality of the majority and therefore the enforcement can't be immoral.

Let me beg to differ. There is a great chasm between the prosecution of consensual crimes and morality. The best (or worst) example is the arrest and prosecution of medical marijuana patients.

Each government actor is culpable, from the LEO who arrests the infirm, to the prosecutor who files charges. I've seen this cruelty first hand. This isn't a morally neutral situation, it's wrong.

Fortunately, Texans are challenging our government's ignorance and hubris. One such organization is the Texas Coalition for Compassionate Care.

Here is a Q and A withTCCC director Stephen Betzen.

1. Name/background/resume
Stephen Betzen Director.
My degree in in Marine science from Texas A&M University. After graduating I spent one year as an investigator of environmental crimes in Harris County. I went on to teach science for 4 years in HISD. In 2004 I moved to Dallas and started 2 businesses Faircoffee.com and Ecowindchimes.com which did great till last fall. Though still running these businesses I am looking for a job to supplement my income.

More important to me is how I got involved in the Medical Marijuana movement. Though I never opposed medical marijuana, because I have always believed that doctors should be able to treat their patients and not the government... I did not truly believe in it 5 years ago. In fact I said some things that I regret to this day. My change in prospective came as I watched my wife slowly suffer from an unknown illness. Chronic neuropathic pain and spasming in her muscles became a daily problem and were getting worse. We were going through test after test to find the problem with suspicions of MS, fibromyalgia and others... all eventually ruled out. Doctors had prescribed her opiate medications to address the pain, however she stopped using them because that caused so many problems. The strong opiates and muscle relaxers prescribed were addictive and impaired her cognitive functioning, essentially making her lose touch with reality. Since she was unable to work while on these drugs, she had to stop as she owned her own speech therapy practice and had to keep it running. At this point we were in a very dark place in our lives and had lost almost all of our hope when someone who saw her suffering, an angel, placed a package on our porch containing 2 sandwich bags of marijuana and a letter explaining that she should try it to relieve her suffering.

The results were not at all like I had suspected, rather than looking/acting drugged she didn't miss one day of work and she was still able to function cognitively in order to perform her duties as a speech therapist. I continued to research it and found that medical science is reporting the same results with few side-effects. It made me angry to discover how distorted my previous views were.

I can not explain to you in words the pain for hearing the one you love most, cry every morning. I can not explain the joy of finding the medicine that worked and improved her quality of life in measurable ways. I can not explain the frustration of knowing that to treat my wife and improve her quality of life, I must break the law.

The following year (2007) I joined Texans for Medical Marijuana in their efforts. Unfortunately they shut their doors that summer, and I felt that we needed to move forward. I contacted other patients, caretakers and advocates and found that they also felt the loss of this organization. So we started the Texas Coalition for Compassionate Care and started the search for a non-profit to handle our funds (I still don't know the technical term for this, I have heard so many)... not only did the Dallas Peace Center agree to handle our funds... but they took us and our mission in completely, so we are technically a committee (and this is better financially for us).

2. What are TCCC's goals for this legislative session? What bills are you promoting?
We are focusing our efforts on affirmative defense for patients and protecting doctors, which is exactly what HB164 does. We will work on having a senate companion bill filed. The goal this session is to have this bill pass and become law.

Continue reading "TexasCompassion.com" »

Blawgers are still sifting through the 4th amendment wreckage from the Herring disaster.

How would a similar situation play out under Texas law? Would our exclusionary rule (38.23) protect the public from illegal searches based on non existent warrants?

This brings us to White vs. State, a 1999 case from the San Antonio Court of Appeals. H/T to the TDCAA message board and David Newell for bringing forward this opinion.

White vs. State

Facts The Bexar County Sheriff informed a San Antonio police officer that there was an outstanding felony warrant for James White. SAPD officer goes to White's apartment, obtains a key from the landlord and lets himself in. White is found in the shower. During the arrest the officer finds a misdemeanor amount of marijuana.

Guess what? The warrant had been recalled. There was no warrant for the arrest of Mr. White. Defendant moved to suppress all evidence resulting from the illegal arrest. Motion denied by the trial court, defendant appeals.

Issue- Does 38.23 require the suppression of the marijuana?

Other issues- Shouldn't the government be responsible for maintaining an accurate warrant database? Or is this good enough for government work? Are we going to further erode our basic protections to save another useless pot conviction?

38.23
What is 38.23? It is the Texas version of the exclusionary rule. I'm glad Texas codified this common sense measure, since SCOTUS is hell bent on destroying the 4th Amendment.

Art. 38.23. EVIDENCE NOT TO BE USED. (a) No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.... (b) It is an exception to the provisions of Subsection (a) of this Article that the evidence was obtained by a law enforcement officer acting in objective good faith reliance upon a warrant issued by a neutral magistrate based on probable cause.

How will the San Antonio Court of Appeals save this pot conviction? Simple, just expand the definition of "warrant" to include recalled warrants. Remember, it's only legislating from the bench if you further a liberal cause, this is strict constructionism.

Holding- A recalled warrant is still a warrant under 38.23(b) so the good faith provisions apply. If Deputy Dingdong at the Sheriff's office doesn't update the warrant database, and the arresting officer doesn't know the warrant is recalled, then the defendant has no recourse for a wrongful arrest. No suppression despite the illegal arrest.

I propose altering 38.23 to better inform the public how limited their protection is against illegal arrest. There is an distinct danger that Texans could read 38.23 and believe the law provides some degree of protection from such malfeasance.

Therefore, I propose a new subsection (c) for 38.23 as follows-

(c) It is an exception to the provisions of subsection (a) if drugs are found. The court shall consider the thousands of government employees who rely on petty drug arrests for their livelihood and sanction any police conduct that results in another triumphant dope arrest!