The truth behind the odor of marijuana
For years Texas courts, under the mistaken belief police officers possess superhuman–like senses of smell, have permitted invasive search and seizures based on the odor of marijuana alone. This low threshold has morphed into a catch-all phrase for vehicular searches and subsequent drug arrests. This is particularly troublesome when you read statements like the one given by
Peter Keane, a former San Francisco Police commissioner, in an article for the San Francisco Chronicle, titled “Why Cops Lie”:
Police officer perjury in court to justify illegal dope searches is commonplace. One of the dirty little not-so-secret secrets of the criminal justice system is undercover narcotics officers intentionally lying under oath. It is a perversion of the American justice system that strikes directly at the rule of law. Yet it is the routine way of doing business in courtrooms everywhere in America.
Find a marijuana case and you will find a police report citing the odor of marijuana as the basis for probable cause. Find a cocaine case and you will find a police report citing the odor of marijuana as the basis for probable cause. This is despite any cannabis being found. This catch-all phrase for probable cause is not only subjective, but unverifiable without any reliable standardized training.
Walk into a medicinal marijuana shop and you will find jars full of marijuana. There is the Tahoe-OG that provides a syrupy smell and taste. There is Bubblegum Kush, that tastes and smells as the name suggests. There is the Blueberry strain and the Vanilla strain. The point is the odor of marijuana can take on many different scents.
The make-up of marijuana consists of different cannabinoids, flavonoids, and terpenoids. How much of each varies. The nearly 200 different types of Terpenoids or Terpenes give marijuana its smell. These terpenoids can be found in our everyday fruits, vegetables, herbs, spices, and hops.
|Terpenes||Aroma||Also Found In|
|Alpha-Pinene||Pine||Pine Needles, Rosemary, Basil, Mosley, Dill|
|Myrcene||Earth, Herbal, Citrus||Mango, Lemongrass, Thyme, Hops|
|Limonene||Citrus||Fruit Rinds, Rosemary, Juniper|
The fact marijuana may smell similar to many of your kitchen spices, a pack of bubblegum, or a pine tree isn’t the only issue. The actual ability to smell marijuana from a vehicle was called into question by a peer-reviewed journal article, entitled “Marijuana Odor Perception: Studies Modeled From Probable Cause Cases”, published in the Law and Human Behavior (Vol. 28, No. 2, April 2004). Based on two different studies this article wrote, “… a blanket acceptance of testimony based upon reported detection of odors for probable cause is questionable…”. In the first of two studies, researchers recreated a situation where, during a normal traffic stop, an officer would say he detects the odor of packaged marijuana, located in the trunk of a car. The study discovered that individuals in this officer’s position were unable to accurately detect marijuana odor. In fact, the presence of marijuana was incorrectly identified 90% of the time.
Fortunately, there have been steps made in the right direction. Recent case law in Texas declared the odor of marijuana alone insufficient probable cause for searching a home. Other states have revisited the olfactory questions as it relates to marijuana in a vehicle. Massachusetts, for example, held due to the medicinal stature, the smell of marijuana is ‘no longer indicative of criminal activity’ and therefore no longer justifies probable cause. With the recent passage in Texas allowing the limited use of medicinal marijuana, searches and arrests based on the odor of marijuana are ripe for challenge.
As history continues to be made and states across the nation set out to enact some form of marijuana legislation, the requirement for probable cause needs to keep pace.
Next time you are in your kitchen, open up a bottle of oregano, give it a smell, and you will understand.
In the event you are arrested…
Probe into ‘Enjoy your ride’ sign on police van
Come back with a warrant doormat
Send a message right out of the gate.
This caption sums it up pretty well.
With the 2015 Hurricane season underway, and with tropical developments already effecting Houston, here is a “to do” list before, during, and after the storm, including what to do if you have a court date approaching.
Before the Storm, have:
- your car tank filled with gasoline;
- a fire extinguisher;
- first aid supplies and prescription medications;
- charcoal, lighter fluid, lighter or matches;
- flashlight, battery-operated radio (for news updates) and a two week supply of batteries;
- bottled water; cooler, ice/gel packs;
- hammer, nails, making tape, plywood and plastic for quick home repairs;
- clean up supplies (i.e. mops, brooms, rakes, pails;
- non-perishable food items, eating utensils, plates, cups, and a manual can opener;
- protective clothing and rain gear;
- removed anything in your lawn that could be blown away;
- inspected any hazards, such as old trees that could fall;
- take video/photos for a home inventory;
- check your insurance policies
- if you feel like being proactive get a gas-powered generator.
During the Storm:
- Stay inside, away from windows, skylights, and glass doors;
- If power is lost, turn off major appliances to reduce “power surge” when electricity is restored;
- Store valuables and personal papers in waterproof containers on the highest level of your home;
- Turn fridge to coldest setting.
After the Storm:
- Be aware of high water or fallen power lines when driving;
- if your home or building has structural damage, do not enter until it has been checked by officials;
- be aware of snakes;
- Do not drink or prepare food with tap water until certain it is not contaminated
- If damage occurred, notify your insurance company. Keep records of your clean up costs.
Court date approaching:
- Visit the District Clerk’s website (if accessible);
- Contact your bail company;
- Contact your attorney;
- Contact the court.
The counties tend to wait till the last minute to make decisions on court closings. Unless you hear otherwise, plan on being in court. Do not however, put yourself in danger to do so. If you have an issue, notify your attorney who will get in touch with the court staff for you.
84th Texas Legislative Session – Criminal Justice
The 84th Texas Legislative Session just ended. Below are both passed and denied bills related to criminal justice.
Belief will be passed:
- ending the “pick-a-pal” grand jury system;
- Why it matters: In light of fierce national debate over the diversity of jurors, this law allows for random selection of grand jurors as opposed to the judge asking an acquaintance to come up with a list of individuals. Texas is the last state to switch from the so-called “key-man” or “pick-a-pal” system.
- scaling back the use of state youth prisons;
- Why it matters: this law provides alternative family-centric provisions to incarcerated juveniles. The focus is on rehabilitation.
- adjusting property theft thresholds for inflation:
- Why it matters: Theft punishment ranges are determined by property value. The problem was the difference in being charged with a misdemeanor or a felony had not been adjusted since 1993. A $30 item in 1993 would have been a class C misdemeanor. That same item in 2015, would be $50, or a class B misdemeanor.
- expunctions for lesser offenses: Note: this bill was vetoed by the governor.
- Why it matters: If you were arrested for example, for DWI and plead guilty to obstruction of a highway, you can now have the DWI expunged or erased.
- reduction of state jail felony to class A misdemeanor: Note: this bill was vetoed by the governor.
- Why it matter: Under this law if you plead guilty to a state jail felony, receive community supervision and meet additional requirements you can motion the court to reduce the felony to a misdemeanor. If the judge grants the motion you will no longer have a felony conviction.
- decriminalizing truancy:
- Why it matters: Failure to Attend School (FTAS) or “truancy” was a class C misdemeanor. The focus will now shift toward truancy prevention as opposed to writing kids a bunch of tickets.
What could have been (denied or stalled):
- the good samaritan bill that would have protected people from prosecution if they call 911 to report a drug overdose;
- low risk prisoners given the alternative of home confinement as opposed to prison;
- Decriminalizing Marijuana;
- Treating 17 year olds as juveniles rather than adults;
- The “ban-the-box” bill that would have prohibited state agencies from asking about one’s criminal history on a job application;
- Asset Forfeiture upon certain arrests.
Deal or No Deal?
Recent headlines have been filled by criminal charges against NFL star running back Adrian Peterson. From the get go Peterson maintained his innocence. In a statement issued September 15 he said, “I never intended to harm my son. I will say the same thing once I have my day in court”. On November 3, 2014 his day in court came and when asked how do you plead to the charges, he responded, “no contest” Wasn’t he just insisting he was innocent? Maybe he was innocent; maybe he wasn’t. Regardless, the system doesn’t care.
The American Injustice System?
Mr. Peterson was formally indicted and charged for the offense of Injury to a Child under Tex. Pen. Code 22.04 (a)(3). This offense is a state jail felony, with a punishment range up to two years in prison and/or up to a $10,000 fine. State jail felony convictions are day for day (i.e. 365 days means 365 days). He plead “no contest” (i.e. guilty) to reckless assault, a Class A misdemeanor and received a two year deferred adjudication conditioned upon a $4000 fine, plus court costs, and eighty hours of community service. Upon successful completion of the deferred adjudication he will be eligible for a non-disclosure. Make no mistake about it this was a good deal. He avoids jail time; he avoids a felony; he avoids a final conviction; and he can have his record blocked in the future. In just a few months he went from “having his day in court” with the possibility of a felony conviction and up to two years in state jail, to a “no contest” misdemeanor conviction and zero days in an orange jumpsuit.
Welcome to the American Justice System. But he was guilty, you say. Maybe he was, but let’s assume he wasn’t. In fact, let’s assume it was you who was arrested for a crime you did not commit. Let’s assume you faced the very situation Mr. Peterson did, deal or no deal? What if you were wrongfully charged with murder with the possibility of life in prison, but were offered a lesser charge of ten years in prison? Would you take the ten or would you seek your day in court? William Kelly found himself in that very situation and took the ten. Two years later DNA revealed the State had the wrong guy and Mr. Kelly was exonerated. He isn’t alone.
A statistic released by the Innocence Project (an organization dedicated to exonerating those who have been wrongfully convicted) revealed of the three hundred people the project has proven were wrongfully convicted of rape and murder, at least 10%, plead guilty to those crimes. Think about that. Thirty people stood up in court, walked to the bench, looked the judge in the eye, and said they were guilty of a crime they DID NOT COMMIT. Criminologists recently estimated of the 2.2 million Americans in prison, over 2 million are there because of plea bargains. Of those 2 million, somewhere between 2 – 8 % plead guilty to crimes they DID NOT COMMIT. That means 40,000 – 160,000 people are sitting in jail for something they did not do.
But why would an innocent person plead guilty? United States District Court Judge Jed S. Rakoff, in his recent article for the New York Review of Books, “Why Innocent People Plead Guilty” reasoned innocent people often plead guilty to avoid the potential, lurking harsh sentence at trial. He notes the scenario can be seen played out at your local courthouse time and time again. The accused is charged with a crime. The prosecutor offers a lesser punishment or even a lesser charge in exchange for a guilty plea. To assist in making the accused’s decision, the prosecutor threatens with enhancements, additional charges, or “take it or leave it” offers. The court is anxious to move their docket. The prosecutor is anxious to get a conviction. The accused has been living the nightmare for over a year and is tired. The pressure has taken its toll. The deal is accepted. The accused pleads guilty. But, is he? Rakoff expresses his concern that prosecutors have too much power, acting with “virtual impunity”, in determining the fate of an accused.
How did the American Justice System get to this point? Judge Rakoff explains, as crime rates rose over the years, plea bargaining offered a way out. Cases could be resolved without burdening the system with additional trials. The accused could avoid jail or less jail time. The government could get a conviction without using further money, resources, and time. As crime rates continued to rise (especially drug and violent crimes) and with the passing of “tough on crime” legislation, plea bargains began occurring at extremely high rates. It is estimated approximately 95% of criminal cases, not dismissed, result in a deal. Judge Rakoff states, the flaw is in deals determined largely by the prosecutor and government policy, with little judicial input. Subtle, small things such as the mood of a government employee that day can have its effect. I would add defense attorneys unwilling to set cases for trial add to the high number of plea bargains. The judge expresses the system in the United States has evolved into a far cry from what Thomas Jefferson and co. contemplated, what the movies and television portray, or what the average American believes. Justice Rakoff isn’t alone in his opinion. The Human Rights Watch, published a 132-page report titled An Offer You Can’t Refuse, highlighting similar problems in today’s justice system.
Of course, the American Justice System is not entirely flawed. It is still the best justice system in the world. Watch any high-profile, foreign case for confirmation. Further, plea bargains are necessary to keep the system moving. When done properly, a plea bargain can result in a win for both the accused and the government. However, if innocent people are pleading guilty to crimes they did not commit; if innocent people are sitting in jail for crimes they did not commit, then our system needs help. There was a time in America where the jury-trial served not only as a truth-seeking mechanism but also as means of achieving fairness. Have we lost sight of that original goal?
So it begs the question, if you were falsely accused of a crime, what would you do? Deal or No Deal.
Collateral Consequences of Criminal Convictions
Posted By: ADAMO / ADAMO
A criminal conviction can follow you around like luggage.
So before you enter into a plea of guilty you need to understand the potential consequences of doing so. If you are charged with a drug, sex, or violent offense you need to be on high alert.
I. Possible Financial Consequences
1. Loss of Employment
FELONY CONVICTIONS and convictions for CRIMES OF MORAL TURPITUDE* can lead to the automatic revocation of and ineligibility for a wide variety of federal and state licenses. Once upon a time, one could enter a plea of deferred adjudication and be assured the offense would never be used against them. This has since changed, and deferreds are routinely used as disqualifications to employment.
To see a list of potential Texas licenses that may be impacted click here.
*A Crime of Moral Turpitude includes, but is not limited to: Issuance of a bad check with the intent to defraud; prostitution; theft; swindling; false report to police officer; assault by a man against a woman; indecent exposure; bigamy by a lawyer; failure to identify; delivery of a controlled substance; violation of a protective order involving family violence; failure to stop and render aid (sometimes).
2. Loss of Funding and Assistance
A. Education Funding
i. Federal Loans/Grants
- Federal education grants are unavailable to those incarcerated in federal or state penal institutions (self-explanatory). A conviction for possession or sale of a controlled substance can make a person temporarily or permanently ineligible for federal loans or grants under the Drug Free Student Loans Act of 1998.
ii. State Loans/Grants
- Similarly, Tex. Ed. Code §54.633 states one who commits a felony or class A misdemeanor, or an offense under the Texas Controlled Substances Act, forfeits a prepaid higher education scholarship. This includes offenses of possession of marijuana, possession or delivery of drug paraphernalia, and falsification of drug test results. Thus, even a minor Class C misdemeanor offense (i.e. drug paraphernalia) may result in the loss of education funding.
- Many schools have adopted “zero tolerance” policies covering potential consequences for any type of criminal offense occuring both on and off campus grounds. Check your schools disciplinary code for additional information.
B. Federally Funded Assistance Programs
- Lifetime ban on food stamps and federally funded public assistance for felony drug convictions. 21 USC 862a.
- Mandatory ineligibility for federal health care benefits for federal distribution convictions. 42 USC 1320a-7.
- Federal grant, license contracts, and other benefits are restricted for felony drug convictions. 21 USC 862.
- Exclusion of federal subsidized or funded housing for drug offenders. 42 USC 1437(1)(b).
C. Asset Forfeiture
- Asset forfeiture is a possibility in both state and federal courts. Your home, business, automobiles, and “cash stash” can all become property of the government. Asset forfeiture typically applies in narcotic cases, but if you are charged with a Felony DWI your vehicle may be forfeited. In order for the government to successfully become owners of your property they must prove, generally, that the asset is “connected to” the charged offense or criminal activity.
D. Surcharges (paid to keep your license)
- Certain convictions result in license suspensions and surcharges.
- DWI – 1st offense = $1,000 per year for 3 years;
- DWI – 2nd offense = $1500 per year for 3 years;
- DWI – BAC > 0.16 = $2000 per year for 3 years;
- Driving with Invalid License = $250 per year for 3 years.
II. Possible Rights and Privilege Consequences
A. Possession of Firearms
i. Texas Law
- A convicted felon is prohibited from possessing a firearm. Tex. Pen. Code §46.04. This includes an individual placed on probation, unless their “rights have been restored” under Tex. Code Crim. Proc. art. 42.12 §20 where the court sets aside the veridic or permits the defendant to withdraw the plea and dismisses the complaint.
- A conviction of misdemeanor family violence under Tex. Pen. Code §22.01, prohibits a person from possessing a firearm before the fifth anniversary of the later of: (1) the release from confinement or (2) the date of discharge from probation. Tex. Pen. Code 46.04(b).
- A conviction will affect a person’s ability to obtain a concealed handgun license (CHL). Tex. Gov. Code § 411.172.
- Texas law allows a convicted felon to possess a gun at his/her residence after five years has passed since the release from confinement or community supervision, parole or mandatory supervision, whichever date is later. Tex. Pen. Code §46.04.
In Texas you must pay attention to federal laws too. Courts have ruled, if a state law has any exception to the restoration of rights regarding firearms (and Texas does under Tex. Code Crim. Proc. art. 42.12 §20) then the felony conviction prohibits one from possessing, transporting, etc. firearms and ammunition. 524 U.S. 308. See also U.S. v. Daugherty, 264 F3d 513 (5th Cir. 2001) (where the court affirmed the conviction of felon in possession who had successfully completed probation).
ii. Federal Law
- A conviction for an offense carrying a maximum punishment of more than one year in prison prohibits the person from possessing, shipping, receiving, or transporting a firearm or ammunition. 18 USC 922(g).
- If a person is has been placed on deferred adjudication or is still under indictment they are prohibited from acquiring firearms or ammunition.
- A person convicted of misdemeanor domestic violence is prohibited from possessing, shipping, receiving, or transporting a firearm. 18 USC 922(g)(9).
B. Driver’s License Restrictions
||Discretionary one year suspension.|
||Mandatory one year suspension|
||180 days for 1st offense;1 year for 2nd offense|
||180 days for 1st offense;1 year for 2nd offense|
||90 days – 1 year|
||1 year suspension|
|Alcohol/Drugs and Minors:
||1 year suspension (with exceptions);30 days – 1st offense; 60 days – 2nd offense; 180 days – 3rd offense; 180 days – 1 year|
C. Loss of Passport Privileges
- An issued passport may be revoked, even for misdemeanor drug offense, if the government finds that the criminal offense should give rise to such disqualifications. 22 USC 2714(b)(2).
D. Civil Rights
1. Voting: a convicted felon may not vote in a public election. A conviction is considered final whether the sentence is imposed immediately or suspended (i.e. probation). A convictions is not final if it is on appeal. This ineligibility lasts until the offender has been “…fully discharged…or completed a period of probation ordered by the court.” Tex. Election Code §11.002(4).
2. Public Office: A convicted felon may not run for, or be appointed to, public elective office in Texas. Probation counts as a conviction. Except in limited circumstances (i.e. pardon), the offender is barred from life.
3. Jury Service: A person convicted of, or currently charged with a misdemeanor theft may not serve on a jury. This may apply to one serving a deferred adjudication.
E. Divorce/Child Custody
1. Evidence of abusive physical force against a spouse, child’s parent, or any person younger than 18 years of age and within two (2) years of a divorce being filed can be considered in regard to sole or joint conservatorship. Tex. Family Code §153.004.
2. Evidence of a history or pattern of physical or sexual abuse may be considered by the court in awarding joint managing conservatorship (JMC). A finding of such removes the presumption that the appointment of parents as JMC’s is in the best interest of the child.
3. The court may not allow access to a child if it is shown by a preponderance of evidence there is a history or pattern of family violence during the two (2) years preceding the date of filing the lawsuit.
4. A conservator convicted or placed on deferred adjudication for: indecency with a child; sexual assault, or aggravated sexual assault, is considered a material and substantial change of circumstances sufficient to justify a temporary order and modification of an existing order regarding conservatorship or possession and access to a child. Tex. Family Code §156.104(a).
5. A party may obtain a protective order if there are facts and circumstances of family violence.
F. Sex Offender Registration: results in the imposition of significant restrictions and requirements, including losing your right to privacy in electronic communication or data.
III. Immigration Consequences
if you are not a citizen of the United States you should consult an immigration attorney while your criminal case is pending. Your criminal defense attorney may be able to refer you to a qualified immigration attorney.
- You are not a U.S. citizen; AND
- you commit a crime of moral turpitude;
- with a punishment range of at least one year; AND
- the crime is committed within five (5) years after admission to the United States or you commit two or more crimes that did not arise out of a single scheme of criminal misconduct any time after admission to the United States.
- you commit a crime of moral turpitude;
- you commit an “aggravated felony”.
- For an extensive list of what constitutes an aggravated felony see §101(a)(43) of the Immigration and Nationality Act (INA).
- Examples include such crimes as murder; rape; drug or firearms trafficking; sexual abuse of a minor; child pornography; money laundering; fraud; tax evasion greater than $10,000; theft or violent crime with a sentence order of a least one year; treason; perjury with a sentence of at least one year; etc.
- See also §247 of the INA for additional deportable offenses.
- For an extensive list of what constitutes an aggravated felony see §101(a)(43) of the Immigration and Nationality Act (INA).
- Under 101(a)(48)(A) of the INA the definition of a conviction includes deferred adjudication.
The importance of knowing these issues can not be understated. Too often we receive phone calls from individuals unable to escape the cloud of previous mistakes. Make sure you are under the guidance of a qualified attorney. BE PREPARED.