Drug Trafficking Charges

March 7, 2013

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

If you are charged with drug possession with intent to distribute or drug trafficking — you are being called a drug dealer.

How People Get Charged with Selling Drugs

Most drug trafficking cases are far from what we see on TV.  In my unscientific view, the vast, vast majority of people accused of selling drugs live very humble lifestyles and aren’t like Tony Montana from scarface (though prosecutors don’t mind jurors thinking this).

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People are arrested often selling small amounts of drugs such as marijuana, cocaine, or prescription pills like xanax or hydrocodone.  Most people accused are normally users themselves.

Many arrests are through confidential police informants (generally someone facing drug charges themselves).  Other arrests occur in places like schools when one student is accused of bringing and sharing their parent’s prescription pills.

Federal or State Prosecution

Selling drugs can either be prosecuted by the Federal or State authorities.  The prosecutions differ greatly.  This blog mainly focuses on the State of Texas’ and it’s prosecution of drug trafficking cases.  Here and here are good resources on Federal drug conspiracy charges.

The Law on Possession with Intent to Distribute

When police charge someone with selling drugs instead of just possessing them, the charge acts to enhance the original charge normally by one degree.  For example,  someone charged with possession of less than 1 gram of cocaine with intent to distribute is facing 3rd degree felony charges.  Here’s the math:

Cocaine possession >1 gram = State Jail Felony + intent to distribute = 3rd Degree Felony

Here’s another example:

Possession of between 80 and 400 tablets of LSD = 2nd Degree Felony + intent to distribute = 1st Degree Felony.

Here is a quick link to a drug offense level chart and  basic Texas punishment levels.

What Constitutes Intent to Distribute?

Courts look to several factors when deciding what constitutes whether someone is selling drugs:

(1) where the defendant was arrested and the nature of the location;

(2) the quantity of controlled substance in defendant’s possession;

(3) the manner of packaging;

(4) the presence of drug paraphernalia associated with use or sale;

(5) the defendant’s possession of large amounts of cash; and

(6) the defendant’s status as a drug user.

None of these factors is conclusive, but all play a role in the analysis.  An effective and experienced advocate can help explain a situation that doesn’t look good to a jury.

What to Do if You’re Charged with Being a Drug Dealer?

These are serious charges.  The enhancements can and often do turn what might normally be an understandable drug charge into a felony where prison is possible.  The charge is also stigmatizing and can be a serious blow to future goals and plans.

If you are being charged with or investigated for selling drugs, you must have competent counsel.

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about this topic or any specific situation you should contact an attorney directly.


Video of a Textbook Illegal Search

April 6, 2012

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

www.rosenthalwadas.com

(972) 369-0577

Today I’m posting a video created by a guy driving home from a Star Trek convention with a buddy who was stopped by a police officer for an alleged minor traffic offense.  He and his friend spend the better part of an hour being harassed, manipulated and badgered by the officer.  It’s a textbook example of when an unsuspecting fly gets tangled in the web of a nasty spider and can’t get away.

You can watch the video here.  

As a Criminal Defense Lawyer having dealt with many bad searches, here are a few things I think are important to point out about this stop/ video.

Situations Like This Rarely Come to Light in the First Place

The reason this type of harassment of citizens never really comes to light is because these guys are completely innocent.  They’ve got no reason to ever acquire, watch, or publish this video.  In fact, most people who go through something like this either just want to forget that it ever happened or were so intimidated by the experience that they simply walk away.

Another reason why this situation is seldom exposed is because when an officer does profile correctly and find marijuana, cocaine or methamphetamine — the citizens regard all the singing, dancing, and acting he did to get into the car as “great police work.”  Obviously what is ultimately found, if anything, doesn’t suddenly validate the illegality of the search.

This is an Extreme (but not unheard of) Scenario

This situation is extreme.  It’s very common to see stops for very thin reasons, and very common to see cops play delay games like “the computer is slow today”.  Getting a k-9 to give a false hit (if that’s really what happened) would be highly uncommon, and simply making up a reason altogether for the stop (if that is what really happened) would also be well out-of-bounds.  Police often reach or stretch for reasons to detain someone, but normally it’s based on at least a smidgen of good faith.

Why this Search Was Illegal

Courts have long struggled with these types of police games.  In United States v. Shabazz, 993 F.2d 431 (5th Cir. 1993) citing United States v. Guzman, 864 F.2d 1512, (10th Cir. 1988) the Fifth Circuit stated:

“An officer conducting a routine traffic stop may request a driver’s license and vehicle registration, run a computer check, and issue a citation. When the driver has produced a valid license and proof that he is entitled to operate the car, he must be allowed to proceed on his way, without being subject to further delay by police for additional questioning. In order to justify a temporary detention for questioning, the officer must also have reasonable suspicion of illegal transactions in drugs or of any other serious crime.”

Also, it’s a well known game to wait for the arrival of a K-9 unit in the event the detaining officer suspects drugs.  

*Jeremy Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.  Communications sent through this blog are not confidential, privileged, nor do they create an attorney-client relationship.


What is a Motion to Suppress?

December 28, 2011

By Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

A motion to suppress is a challenge to the legality of how evidence was attained.

In Texas and the United States we have what is known as the “exclusionary rule.”  This rule means where a court finds evidence was attained illegally – it cannot be used for any reason against the accused.  The exclusion (or suppression) of evidence often makes it impossible for the prosecution to prove one or more elements of the crime — which means they often lose the entire case based on a successful motion to suppress because they will fail to meet their burden of proof at trial.  Other times, a successful motion to suppress will exclude a damaging admission, confession or other piece of evidence which does not win a case for the defendant but makes the case much more difficult on the prosecution.

What Makes an Arrest or Search Illegal?

It depends on the situation.  In an automobile stop, the stop is normally bad where the driver didn’t commit any offense which allowed the officer to pull them over in the first place.  Searches in automobiles can also be bad where the officer searches a car or individual without consent or probable cause that some crime has been committed within his presence.

Home searches have extremely great protection.  Remember the constitutional basis for the 4th amendment in the first place was to prevent American soldiers from rummaging through people’s houses the same way the British had done prior to the revolution.

Search warrants can be held to be illegal if the application for the warrant was not done properly and fails to establish probable cause.

Also, if the State broke some other law in attaining evidence then the evidence can be suppressed as well.  A common example is where the State doesn’t follow protocol on a breath test or blood draw and can’t use the result at trial.

The situations where searches, arrests, or other types of evidence can be thrown out are countless.  Each is truly it’s own unique snowflake and this discussion barely scratches the surface of suppression.

Does This Mean the Police have Committed a Crime Against Me?

Not really.  It’s more like an ‘illegal procedure’ penalty in football.  It sounds worse than it actually is for the cop.  Most suppression cases arise because the officer was being (1) overly-aggressive; or (2) was just not thinking.

You have to remember a handful of things about police.  First is they profile and target certain people.  The good news is that it is rarely based on race — but it doesn’t make it a whole lot better.  Police tend to target, for example, teenagers/ younger adults, people driving beat-up cars, and frankly — people who look like thugs.

Second, society has glorified police acting on ‘hunches’ even though the law requires the opposite — that if the police are going to act they have to have specific articulable facts which justify their actions.  Not only does the law require there to be ‘articulable fact,’ but study after study shows that an officer’s ‘hunch’ is generally no more reliable than flipping a coin.

When you combine profiling of someone in a high-target group with an officer acting on ‘hunches’ instead of fact — you tend to get a situation ripe for a motion to suppress.

Examples of How a Motion to Suppress Works

The best way to demonstrate how a motion to suppress works is through practical examples.

Bad Stop Eliminates Entire Case:  

DWI arrest where blood draw ultimately shows defendant had o.15 blood alcohol concentration.  Officer stopped defendant for driving slowly, weaving within lane, and crossing solid white line.  Court held defendant committed no traffic violations because (1) weaving within one’s own lane is not a crime where no lane was crossed; (2) driving slowly does not constitute a crime in and of itself; and (3) Defendant’s car crossed solid white line exiting freeway in response to being pulled over.  The officer’s decision to stop had already been improperly made.

Result:  All facts attained from stop were suppressed.  Therefore State could not prove identity of driver or that driver was intoxicated.  Case dismissed by prosecution.

Bad Search Eliminates a Key Element

Marijuana case where police get a report of a ‘disturbance’ in the middle of the day at an intersection in a high crime neighborhood.  Nature of the ‘disturbance’ unknown but description of participants were given – and description was somewhat common.  Officer stops defendant several blocks away walking on a street (towards the area of the disturbance).  After a brief conversation, the officer begins a pat-down search of the defendant who admits he’s got marijuana in his pocket which is ultimately found.

Court held: (1) the report of a ‘disturbance’ too broad to allow a general search of all people matching the description in the vicinity for all purposes; (2) the encounter between the officer and the accused was originally voluntary but turned into a detention when the officer began to frisk Defendant without permission; (3) by the time Defendant admitted to the drugs, the illegal detention without probable cause had already commenced — therefore the admission and the marijuana themselves were not admissible.

Result:  Not Guilty verdict because no evidence defendant was in possession of marijuana (the corpus dilecti of the crime).

Bad Search Warrant Eliminates Blood Result

Defendant arrested for DWI after car accident.  Officer’s conduct field sobriety tests and determine defendant was intoxicated.  Officers apply for search warrant from a judge on call.  Judge grants the search warrant and the defendant is shown to have a blood alcohol concentration of 0.17 at the time of testing.  Court held that search warrant failed to contain the time of driving and as such, the warrant was insufficient to demonstrate that evidence of a crime would be present in defendant’s blood specimen.

Result:  Defendant stood trial, however, state barred from showing or referring to blood draw or blood result.

In Summary

Motions to suppress are hard to understand.  They can be an over-looked and efficient way to defend cases of all types.  Hopefully after this discussion today you have a bit more understanding.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas and is Board Certified in Criminal Law.  Nothing in this article is intended to be legal advice.  Legal advice about any topic should be discussed directly with an attorney.  Contacting the attorney through this forum does not create an attorney-client relationship.  Communications sent through this forum are not confidential.


5 Reasons Not to Testify in Your Own Defense

October 1, 2011

By Collin County Criminal Lawyer Jeremy Rosenthal

(972) 369-0577

www.rosenthalwadas.com

The U.S. Constitution and Texas Code of Criminal Procedure 38.08 guarantee a person on trial the right to testify in their own defense.  38.08 reads, “Any defendant in a criminal action shall be permitted to testify in his own behalf therein, but the failure of any defendant to so testify shall not be taken as a circumstance against him, nor shall the same be alluded to or commented on by counsel in the cause.”

The vast majority of experienced criminal defense lawyers will advise their clients against testifying in the vast majority of cases.  There are many reasons why defense lawyers think this way and here are just some:

1.  It is virtually impossible to convince someone you are innocent of a crime.

We assume that people listening to us are open minded and can be persuaded with our honest nature and straight-forward approach — but like most assumptions, it’s wrong much of the time.  Our founding father’s knew a lot about human nature and our natural rush to judge people.  They knew that people rarely believe someone that claims they are innocent, so why even bother with the charade?  It only endangers the citizens more to have a star chamber system of government.  Putting the burden of proof on the government and forcing them to prove their case is simply the fairest way to have a trial.

2.  There is no “right way” to behave when you’re testifying.

Obviously you should be yourself when if you are testifying, but you have to consider the audience.  In act 3, scene 2 of Hamlet, Queen Gertrude says about someone professing their innocence, “…The lady doth protest too much, methinks.”  This just means that if you assert your innocence very aggressively — people think you’re lying.  And here’s more bad news… if your voice shakes when you testify — people also could think you’re lying.  People an also think you’re lying if you make too much eye contact, make too little eye contact, look at the floor, look at the judge, look at someone in the audience, look at your lawyer, look at the alleged victim (if any) and on and on and on.  The bottom line is that professing your innocence can work — but it’s usually a lose-lose situation.  Psychologists teach us that not even the best law enforcement personnel around can detect lies by looking at someone’s facial expressions.  Jurors are even worse!  What one person was raised to believe is a truthful expression is a lie to someone else — and vice versa.

3.  Prosecutors have a built-in cross examination advantage.

They can accuse you of lying on the witness stand to beat the rap!  Not only that, but prosecutors know what they’re doing and can ask “do you still beat your wife” questions to which there is no right answer.  You shift the burden from the prosecutor to yourself and the jury is no longer weighing the merit’s of the state’s case — they’re evaluating you.  Testifying in your own defense can be an all or nothing gamble.

4.  Juries Really Don’t Hold it Against You.

Juries are actually very good at not holding it against you if you don’t testify.  Most courthouses have videos they show the juries which discuss someone’s right to remain silent before they get into the courtroom.  Then the trial judge normally goes over the right not to testify.  Then most prosecutors go over the right not to testify for no other reason than they want to seem fair.  Then your lawyer gets to go over your right not to testify during jury selection and disqualify anyone that demands to hear your side of the story.  Jurors have this singular point drilled into their skulls all day and all week long.  My experience after trials when visiting with jurors is that they’re actually quite good at compartmentalizing and ignoring the Defendant if they didn’t testify.

5.  To limit damaging testimony.

You always have to testify honestly and no lawyer should ever tell you otherwise nor would any good lawyer imply that it’s OK for you to bend the truth.  If the truth is that you’re guilty then you obviously shouldn’t testify and it’s a wiser strategy to force the prosecution to prove your guilt beyond all reasonable doubt.  Also, if you have difficult facts to explain or some things in your history would look bad to a jury — then staying off the witness stand may be a good idea as well depending on your case.

When You Should Testify

When your lawyer tells you!  If I advise a client to testify, it is normally because there is some piece of evidence which is important to our theory which I cannot get before the jury any other way than through my client.  Also, many affirmative defenses are very difficult to legally raise with out testifying on your own behalf.

Listen to your lawyer’s advice with regards to testifying in your own defense.  They will clearly have a good understanding of the facts in your case and the experience to know whether it’s the right choice.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any situation you should contact an attorney directly.  Contacting the attorney through this post does not constitute a privileged communication and an attorney-client relationship is not established by any such communication.


Criminal Law and Psychology

September 4, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawer.com

One of the things I geek out on in my practice is how psychology intersects with criminal law.  It never ceases to amaze me how the applications of this field of science could affect virtually any type of case ranging from marijuana possession and driving under the influence, to robbery and murder.

I am obviously an amatuer psychologist at best, so I’ll apologize and defer to any real psychologists that read my blog and take issue with anything I say.  Also, I’m well aware my discussion today only scratches the surface.

Our brains are constantly processing, prioritizing and often distorting information.  It’s part of being human.  My belief as a criminal defense attorney is that I have understand this is the case for everyone — myself included.  Not only do I have to understand this is the case, but I have the challenge of demonstrating to a judge or a jury the explanation may not be a clear as it appears.

Police approaching a driver may be influenced by all sorts of things which affect their perception… not the least of which are past experiences, biases and prejudices.  For reasons I don’t understand, police may also feel the need to be controlling to the point where they feel justified in manipulating someone into allowing them to search a vehicle or take take field sobriety tests.

Then there is the person that is pulled over on the road-side.  The presence of an authority figure in uniform can be extremely powerful… to the point that someone would capitulate to an unreasonable officer request even though the person may know it their legal right to refuse — and in their legal best interest to refuse.  The interplay between an officer with the need to control and an every-day person who is socially programmed to respect authority figures fascinates me an it’ often critical to demonstrate to the jury exactly what is going on between the lines so the understand the police’s white-washed version might not necessarily be the entire story.

Again, I could go on all day, but a last example I’ll give is psychology of an everyday person sitting on a jury.  As much as we think a juror reasons the same way we do, a good criminal trial lawyer has to understand that the juror is in a completely different mindset.  Jurors are responsible citizens that merely showed up at the direction of the county, city, or federal government for jury duty.  They are shuffled from room to room and ultimately put into a room full of lawyers they don’t trust trying to tell competing stories.  Jurors aren’t going to naturally gravitate to your position just because you think you’re so clearly right and the other side is obviously wrong.  Studying juror psychology, though, helps a good criminal trial lawyer shape and sculpt his message so that it is consistent with the jurors’s pre-existng values, beliefs, and biases.

As an attorney that frequently tries cases ranging from DWI and drug possession to aggravated robbery and other serious felonies, I make it a priority to know and understand all the psychological interplay more than my opponent prosecuting the case.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any situation, you should contact an attorney directly.  Contacting the attorney through this blog does not create an attorney-client relationship and communications sent to the attorney are not considered privileged.


K2 is Now Illegal in Texas

September 2, 2011

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

The Texas Legislature in 2011 has made possession of the synthetic form of marijuana, popularly known as “K2” illegal. Synthetic cannabis blends have been around for the past decade or so.  Many think they achieved an effect through a mixture of legal herbs. In reality, it contains synthetic cannabinoids which act on the body in a similar way to cannabinoids naturally found in cannabis, such as THC.

The penalties for possession of K2 are no different than for possession of marijuana.  That is, it can be either a class a or class b misdemeanor depending on the amount possessed.

The same legal definition of possession applies as with any drug.  That is, possession is defined by Texas Penal Code 1.07(39) as actual care, custody, management or control.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice.  For legal advice about any situation you should consult an attorney directly.  Contacting the attorney through this forum does not constitute legal representation and contact information is not privileged.


Drug Free Zones

November 23, 2010

By Dallas and Collin County Criminal Defense Lawyer Jeremy Rosenthal

(972) 562-7549

www.thecollincountylawyer.com

Drug free zones are areas created by the legislature where, if drugs are illegally possessed, criminal penalties increase.

Texas Health and Safety Code Section 481.134 governs drug-free zones.  As a rule of thumb, illegal possession of drugs such as marijuana, methamphetamine, or prescription drugs will increase the normal punishment range one level.  As an example, possession of a usable quantity of marijuana under 2 ounces is a Class B misdemeanor in Texas, but if the possession is in a ‘drug free zone,’ the case can be filed as a Class A misdemeanor.

Drug free zones are created several different ways.  Schools, playgrounds and even video arcades can be considered as drug free zones.  Not only are these types of places drug free zones, but the area surrounding them can be drug free zones as well.  Section 181.134 holds that 1000 feet around schools are drug free, and 300 feet around public swimming pools or arcades are as well.

As you can see by reviewing 181.134, it can be highly technical in both how it defines drug free zones and with how it increases penalties.

If you or a loved one is charged with possession of drugs in a drug free zone, it is important that you have an attorney that understands the highly technical nature and the importance of the drug free zone allegations.

*Jeremy F. Rosenthal is an attorney licensed to practice in the State of Texas.  Nothing in this article is intended to be legal advice.  For legal advice about any situation, you should directly consult an attorney.