A circuit court judge in Palm Beach Florida, unlike Miami-Dade Judge Milton Hirsch, upheld the constitutionality of Florida’s drug statute. In a 16-page opinion, Judge Kastrenakes blasted U.S. District Judge Mary Scriven and Circuit Judge Hirsch arguing they disregarded a plethora of appeals court decisions to reach their erroneous conclusion that the law is unconstitutional because prosecutors don’t have to prove that a person knew he possessed illegal drugs to get a conviction. Mere possession is enough, the judge wrote. Their rulings, he claimed were “fatally-flawed” and “just plain inaccurate.”
Judges in Hillsborough and Pinellas Counties have thus far denied all motions to dismiss 893.13 charges. Appeals have been taken from Judge Scriven’s ruling as well as in South Florida. This issue will have to end up before the Supreme Court to decide.
Mary S. Scriven, United States District Judge for the Middle District of Florida, Orlando Division, held Florida Statute 893.13, Florida’s drug statute, unconstitutional in an order filed on July 27, 2011. In accord with Rule 57 of the Federal Rules of Civil Procedure, a Declaratory Judgment shall be entered separately, declaring Florida Statute, 893.13 unconstitutional. In her 43 page order, Judge Scriven granted Petitioner, Mackle Vincent Shelton’s Petition for Writ of Habeas Corpus under 28 U.S.C. Section 2255.
Click for the full text of the opinion.
We’ve all seen it in the movies; “cop” bangs on door, people inside scatter and hide weapons/drugs, someone answers the door and “cops” search the home. Pretty standard right? This is not what happened in a recent case in Kentucky…
According to an article from the Orlando Sentinel, Kentucky police were following a man who they believed to be a drug dealer. The man went into an apartment building but the law enforcement officials lost track of which unit he entered. The police smelled marijuana coming from one door and knocked on it. They heard rummaging and announced they were coming in. They did not find the drug dealer but instead found Hollis King with marijuana and cocaine. King convicted of drug trafficking but later his conviction was overturned by the Kentucky Supreme Court accusing the officers of violating his 4th Amendment (unreasonable search and seizure). The U.S Supreme Court then heard an appeal from prosecutors and reversed the ruling. Justice Samuel A. Alito Jr said
“…the police conduct in this case ‘was entirely lawful,’ and they were justified in breaking down the door to prevent the destruction of the evidence.”
The Supreme Court passed a ruling allowing law enforcement to enter homes without a search warrant. If law officers knock loudly on the door and hear suspicious noises coming from inside, they can enter the home without a warrant or consent. Before this ruling, the law stood that officials could only enter the home without a search warrant if they had consent from the owner or if there was an emergency situation.
In the article, Justice Ruth Bader Ginsburg argues
“the court’s approach arms the police with a way routinely to dishonor the 4th Amendment’s warrant requirement in drug cases. She said the police did not face a ‘genuine emergency’ and should not have been allowed to enter the apartment without a warrant.”
This new law could potentially complicate the job of criminal defense lawyers because in the past, there was a logical defense when police didn’t have the explicit right to enter the home of the suspect. Now, we may come across the gray area of what was thought to have been heard and what the accused says happened. The line of violating the 4th Amendment could become blurred.
The Supreme Court arrived at an 8-1 decision allowing law enforcement officials to enter without a warrant if they are in pursuit of someone with drugs, knock loudly and can hear the destruction of evidence.
Drug offenses are both Federal and State statutes. If you have left Florida or your state of residence and get charged with possession, you could be charged with a US Federal statute.
In the drug offense video below, Tampa Criminal Defense Lawyer Lori D. Palmieri states that the most recent, serious drug related crime is the possession of controlled substances.
“As we sit here in 2011, the primary focus of law enforcement is the distribution and possession of controlled substances that are prescription drugs.”
But that is obviously not the only type of drug that constitutes for a drug offense. Any type of drug from crack-cocaine to marijuana will land you a drug charge.
Penalties for drug offenses will be determined by any of the following factors:
- – Quantity of the drug?
- – Was it simple possession?
- – Was it possession with intent to sell, distribute, and/or deliver?
- – Were there weapons involved?
Drug cases are very fact specific. If evidence is wrongfully obtained or there were problems with the search and seizure, the possibility to move the court in motion of suppress is there. Generally, the case will go away.
A conviction of any drug offense can result in the loss of your Florida drivers license and the length of suspension depends on the specific factors of the crime. A qualified attorney will know what can be done to avoid or minimize the loss of a license.
As you may know, criminal defense lawyers are faced with the particularly difficult challenge of defending clients who are accused ofdrug charges because both State and Federal statutes call for minimum mandatory penalties, based on the circumstances of each particular case (for example, the quantity of drugs, the presence of weapons, etc.).
New proposed legislation, arguably being driven by the ailing economy and the rising cost of Florida’s criminal justice system, seeks to end minimum mandatory penalties, allowing judges more latitude to decide penalties based on the individual circumstances of each case. In a March 10, 2011 article by News Service Florida, Sen. Ellyn Bogdanoff draws the distinction between drug offenders who suffer from a “life of crime” versus those that are plagued by a “life of addiction”, arguing that those suffering from addiction can be helped so that they are transformed into law-abiding, taxpaying citizens.
If passed, the proposed legislation broadens the possible outcomes faced by those accused of drug charges and adds a new element to be considered by their criminal defense lawyers.