Los Angeles Criminal Defense Attorney

Archive for the ‘Drug Laws’ Category

How Federal Marijuana Prosecutions Are Different Than California Cases

Monday, July 30th, 2012

A recent marijuana seizure off the coast of Southern California is a good example of how federal marijuana cases differ from marijuana prosecutions in California courts.  Most notably, the amount of marijuana seized by the Coast Guard was more than four tons.

Crew members on a U.S. Coast Guard cutter on Wednesday seized 8,500 pounds of marijuana worth an estimated $7.7 million.

The pot was confiscated from a Mexican “panga” boat about 160 miles west of Los Angeles by crew members of the San Francisco-based cutter Aspen, the Coast Guard said.  The drug was packaged in more than 340 bales.

You almost never see these kinds of quantities involved in state court marijuana cases in Los Angeles County Superior Court.  And this is no accident.  Federal prosecutors and federal criminal law generally focuses on big fish.  Rather than go after street-level distributors, the DEA, FBI, Coast Guard and other law enforcement agencies prefer to go after the leaders of large-scale drug conspiracies.

The Federal Sentencing Guidelines also provide extremely long sentences for a wide range of drug-related charges.  Moreover, additional penalties are imposed on people who are perceived to be leaders.  Here, for example, everyone arrested on the boast is facing a ten-year minimum sentence, plus huge enhancements for the quantity of marijuana seized on the boat.  For example, a first-time offender on the boat who was not the captain is facing up to an additional 151-188 months in prison.  The captain of the vessel as well as anyone who is charged with having greater involvement is facing even longer prison sentences.

And unlike sentences given out in some states, federal sentences cannot be reduced greatly for good behavior in prison. Generally, someone who is sentenced to 20 years in federal prison will serve at least 17 years of actual jail time.  Thus, in a case involving this much marijuana, everyone charged is facing decades in prison.

Even lawyers sometimes underestimate just how different federal court is when it comes to criminal law.  The law is different, as are prosecutors, judges, and juries.  Federal law operates by its own set of rules, which why it is critical to work with a criminal defense lawyer who is experienced in federal law and federal courts.

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Is Heroin More Dangerous Than Marijuana?

Saturday, June 23rd, 2012

This is one of the questions that Drug Enforcement Agency Administrator Michele Leonhart refused to answer directly when she testified before Congress this week

This is hardly a difficult question, especially for anyone who knows anything about how drugs are regulated in the United States.  Ms. Leonhart has received a tremendous amount of criticism for dancing around this question while under oath.  Thousands of people have commented online, pointing out what pretty much everyone already knows: In terms of its addictive properties, physiological effects, and overall impact on human health, heroin is much more dangerous than marijuana.

It is easy to ridicule Ms. Leonhart’s testimony as ignorant and misguided. Many people have done so.  This criticism, however, fails to recognize an important connection between her words and the DEA’s actions with respect to marijuana.

As a criminal defense lawyer in Los Angeles, I come across lots of otherwise well-informed people who don’t fully grasp that in many respects the DEA actually treats marijuana as if it was a much more dangerous drug.  Her testimony wasn’t just words.  We are all aware of situations where, for political reasons, elected and appointed public officials say things they know aren’t true.  You might be tempted to conclude that the head of the DEA had some political reason for not providing the right answer to an easy question.

Here, however, her testimony genuinely reflects DEA policy that marijuana is dangerous.  This attitude helps explain why DEA agents have raided many marijuana dispensary in Los Angeles. Ms. Leonhart’s position also squares with the stepped-up enforcement against marijuana dispensaries and landlords who lease commercial space to dispensaries.   Federal law enforcement agents are increasingly threatening everyone with seizure and forfeiture actions, money laundering charges, etc.

Factually and scientifically, equating the dangers of heroin and marijuana is absurd.  Unfortunately, it is also consistent with the DEA’s recent actions.

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Police Dogs Sniffing For Drugs Are Surprisingly Unreliable

Monday, April 2nd, 2012

As a criminal defense lawyer in Los Angeles, I see firsthand how dogs can be used to prevent a wide array of people from being treated justly.

Before going any further, let’s get something out of the way:  I love dogs.  But when it comes to how dogs are used to determine who gets arrested and what happens during and after the arrest, my complaint isn’t with the dogs; it’s how the police use dogs.

The constitutionality of using dogs when someone has been stopped is well established.  In 2005, the United States Supreme Court ruled that the Fourth Amendment’s prohibition on unreasonable searches and seizures is not violated when, as part of a traffic stop, a dog is brought in to sniff the exterior of the car.  This doctrine was decided in Illinois v. Caballes, in which the car was stopped by the police for about ten minutes.  There is no hard and fast rule how much time has to pass waiting for the dog before the search becomes unreasonable.  In making this decision, most of the Justices focused on the extent to which the dog sniffing dog was intrusive.

Justice Souter, however, disagreed with the decision, focusing on how academic research had questioned the reliability of dogs brought to potential crime scenes. His basic point was simple—dogs aren’t especially reliable at identifying drugs or contraband.

“The infallible dog, however, is a creature of legal fiction. Although the Supreme Court of Illinois did not get into the sniffing averages of drug dogs, their supposed infallibility is belied by judicial opinions describing well-trained animals sniffing and alerting with less than perfect accuracy, whether owing to errors by their handlers, the limitations of the dogs themselves, or even the pervasive contamination of currency by cocaine. . . . Indeed, a study cited by Illinois in this case for the proposition that dog sniffs are “generally reliable” shows that dogs in artificial testing situations return false positives anywhere from 12.5 to 60% of the time, depending on the length of the search”

It’s not that dogs don’t have a much better sense of smell than humans do—they clearly do.  They are unreliable, however, because dogs have a strong desire to please their handlers.  Thus, it can be difficult to tell whether the dog is reacting to the presence of drugs or is reacting to subtle clues sent by the police officer who is handling the dog.  An increasing array of research suggests that dogs can be easily misled into “finding” drugs when they don’t exist.  A more recent study published in the journal, Animal Cognition, showed error rates on up to 85%. Interestingly, the dogs were most likely to be wrong about finding drugs when their handler suspected that a given location had drugs.

The studies mentioned above assume that the police officer handling the dog is being fair.  But unfortunately that isn’t always the case.  Sometimes the police officer in question deliberately acts in a way that encourages the dog to act if drugs are present.  A recent stop that was videotaped is a good example of this.  As reported in The Huffington Post, filmmaker Terrance Huff and his friend were stopped in a small town in Illinois on their way back from St. Louis.  The stop lasted 17 minutes and was videotaped by a camera that was located on the dashboard of the police cruiser.  The stop didn’t result in an arrest, but it nonetheless shows some questionable police conduct.

When an expert who trains police officers in dog handling techniques was shown the video, he concluded that the police officer acted improperly by among other things changing how he used his voice to signal the dog to react as if drugs were present.

“Just before the dog alerts, you can hear a change in the tone of the handler’s voice. That’s troubling. I don’t know anything about this particular handler, but that’s often an indication of a handler that’s cuing a response.” In other words, it’s indicative of a handler instructing the dog to alert, not waiting to see whether the dog will alert.

“You also hear the handler say at one point that the dog alerted from the front of the car because the wind is blowing from the back of the car to the front, so the scent would have carried with the wind,” Papet says. “But the dog was brought around the car twice. If that’s the case, the dog should have alerted the first time he was brought to the front of the car. The dog only alerted the second time, which corresponded to what would be consistent with a vocal cue from the handler.”

It turns out the officer in involved in this incident, Michael Reichert, has had a checkered past.  And at least one judge has found his courtroom testimony not to be credible. He was let go by one police department but was later reinstated and then hired by others.

So what does mean for someone who is arrested in Los Angeles on suspicions of possessing drugs in their car?  Does it mean that the use of drug sniffing dogs will be found to be improper?  Probably not.  Dogs are likely to be a part of police work for the foreseeable future.  But what these cases do show that defending a case involves digging into details.  You can’t assume that the stop was proper, or that the officer was honest, or that the dog wasn’t tricked, or any number of other details that might show that the arrest wasn’t proper, or that there is more going on than the police officer initially realized. This is yet another example of why being a criminal defense lawyer requires attention to detail and persistence.  It’s also why people who have been arrested rarely can judge whether or not they have a solid defense. For that, you need to call an experienced criminal defense attorney.

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PCP Arrests In Los Angeles and Culver City

Saturday, February 18th, 2012

The Los Angeles Times is reporting that two individuals have been arrested in Los Angeles County in what law enforcement officials are describing as a huge PCP operation.

PCP is the acronym for the drug  1-(1-phencyclohexyl) piperdine.  It’s chemical name is more commonly known as phencyclidine, and outside of chemistry labs and courts of law is known as Angel Dust, Supergrass, Boat, Tic Tac, Zoom, or  Sherm.

This would be an usually large amount of PCP for a single arrest.  To put 130 gallons in context, California law provides various quantity-based sentencing enhancements for the possession and manufacture of PCP.  Thus, for example, under California Health  and Safety Code Section 11370.4(b), three years are added to a sentence if the amount of PCP exceeds 30 liters, or roughly 8 gallons.  Given the amounts of PCP that are alleged to be involved here, and given that California law prohibits the sale, possession, transportation and manufacture of PCP, as well as the manufacture of certain chemicals that are thought to be precursors of PCP, these are very serions charges.

The most unusual aspect of the arrests in Los Angeles and Culver City is the alleged amount of PCP involved.  The LA Times story, written by Sam Allen, indicates that 130 gallons were seized.  It is important to remember that this Los Angeles Times story was based entirely on information supplied by police or prosecutors, they have an interest in painting the most extreme and damaging picture of the defendants as possible.  In other words:   Don’t believe everything you read.

More facts in this case will come out and those arrested should be presumed innocent.

 

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Arrests in Mexico-Los Angeles-Denver Cocaine Ring

Monday, February 13th, 2012

It does make for a nice headline: “Feds Make Largest Mass Drug Arrest in Colo. History.”

On February 9, 2012 federal and state authorities announced that they had arrested more than 80 people in connection with a long investigation of a drug ring that connected Mexico, Los Angeles, and Denver.  Arrests were also made in Mexico and Los Angeles, although most of the action took place in Colorado.  Several dozen kilos of cocaine were seized along with a much smaller quantity of meth and a dozen firearms.

This was a large-scale investigation that appears to have started in 2010, and that involved numerous local law enforcement agencies as well as the U.S. Drug Enforcement Agency (DEA) and the Immigration and Customs Enforcement agency (ICE).

Not surprisingly, the people who ran this investigation and coordinated the arrests were proud of what they had done.  U.S Attorney John F. Walsh convened a press conference at which he tried to make the case that this was a  blow to drug dealers:

“This is a big deal for Colorado. It sends a clear message to people bringing drugs and selling, and that is, ‘Your day will come,’” Walsh said.

This is language that you often hear at press conferences. The headlines are impressive as are the images of police officers standing in front of seized firearms.  I can’t tell you how many of these “record-setting drug arrests” news conferences I have seen over the years.  The amount of drugs seized in Denver certainly wouldn’t be a record here in Los Angeles.

More importantly, too little attention is paid to the fact that these kinds of records are set fairly regularly, and that these press conferences are especially popular during election years.  To be sure, federal prosecutors like Mr. Walsh don’t have to worry about being elected; they are appointed by the President and confirmed by the United States Senate.  But the same cannot be said by local district attorneys; there is a tendency to hold these press conferences as part of an effort to show voters that something is being done about drugs.

But even some of the officials who were involved in this operation tacitly acknowledged that these arrests aren’t going to make a lasting impact on the availability of drugs.  One local prosecutor was unusually candid:

“Adams County District Attorney Don Quick said the bust means that the supply side of the drug chain has been hit but the problem will never truly be resolved until agencies focus on the demand side.”We need to get our kids early so this demand doesn’t exist. If there’s always going to be a demand, there’s always going to be a supply,” Quick said. He said 80 percent of people sitting in jail currently are connected to drug use in some way.”

There is also another interesting and often overlooked aspect of these “record-setting” drug busts.  During the course of the arrests a dozen children were taken out of their parents homes and most likely handed over  to the foster care system. These children are also harmed by how our society has decided to address the real problems caused by cocaine and other drugs.

It is only a matter of time before some other federal prosecutor convenes a press conference to showcase a record drug-related arrest.  For the foreseeable future, that means that I will be plenty busy trying to defend those who have been arrested and who face lengthy prison sentences in federal jails.

 

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Cocaine Related Arrests at LAX

Monday, February 13th, 2012

Los Angeles International Airport (LAX) was on February 2 the scene of  high-profile drug smuggling arrests. Two Spanish nationals, mother and daughter, were stopped allegedly carrying up to ten pounds of cocaine.  According to the local NBC affiliate, the pair were here just for a stop over, and were scheduled to fly to Australia.

One of the most troubling aspect of the press coverage of this story is that, following their arrests, the mother and daughter provided authorities with incriminating information, including that they had previously received money in exchange for transporting packages.

It is perhaps too much to ask two people who are unfamiliar with American law and culture, and who undoubtedly must have been feeling an enormous amount of fear and anxiety, to know that they shouldn’t speak to authorities without first speaking to a lawyer.  It appears that federal agents paid attention to the two because they had an unusual travel pattern, including short recent trips to Panama and Columbia.

Because of the quantity of cocaine that was seized, and because they were arrested at LAX by federal officials, they are facing federal charges. And that means they are facing much higher potential sentences than they would in the California state system.  Here, each may be facing up to a 40-year sentence. And in federal prison, a forty-year jail sentence means that you almost certainly going to be in prison for more than 30 years.

There is no other way to put it–the federal system is different. Most crimes are state crimes; as a result relatively few lawyers are experienced in defending cases in federal court, which has different prosecutors, judges, juries, and rules than California state courts.

It is impossible to tell from the press coverage just how damaging the statements made to the U.S. Immigration and Customs Enforcement agents will prove to be, but I am certain that people who are arrested for drug crimes, especially ones facing federal charges, are better off talking to a lawyer before they make any statements to the authorities. And that’s true whether you are arrested or just being asked to appear for an interview with the FBI, Alcohol Tobacco and Firearms (ATF), The Secret Service, IRS, or any other federal agency.

 

 

 

 

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Are Bath Salts Legal in California?

Wednesday, October 19th, 2011

MDPV, Mephedrone 4 (aka 4-MMC), and Methylone (M1), the key ingredients in “Bath Salts” are, as of this writing, are in legal limbo in California.  However, earlier this year, the Drug Enforcement Agency (DEA) has enacted their emergency authority to prohibit possession or sales of these compounds.  The DEA has a year from the date of this “emergency hold” to decide whether or not to add bath salts to the list of Schedule I drugs.  From the DEA press release on the subject:

A Notice of Intent to temporarily control was published in the Federal Register today to alert the public to this action. This alert is required by law as part of the Controlled Substances Act. In 30 days or more, DEA intends to publish in the Federal Register a Final Order to temporarily control these chemicals for at least 12 months, with the possibility of a six-month extension. The final order will be published in the Federal Register and will designate these chemicals as Schedule I substances, the most restrictive category, which is reserved for unsafe, highly abused substances with no currently accepted medical use in the United States.

However in California, a recent law, codified under Health and Safety Code 11375.5, was just enacted which makes it illegal to sell/distribute/give away any “any synthetic stimulant derivative”, a misdemeanor offense.  The target offense on this is going after stores who sell “bath salts.”  However, simple possession of these synthetic stimulants is not a crime (not to be confused with the criminal possession of numerous other stimulants under Health and Safety Code 11377).

What is curious is the broad language in the statute.  After all, California already has Health and Safety Code 11378 which makes it a straight felony to sell a wide variety of controlled substances, stimulants such as MDMA and Amphetamine are some examples of stimulants covered by this statute.

Additional weirdness in 11735.5 is the specific exclusion of MDPV, which has been banned in other states and is widely agreed to be the predominate and problematic compound in bath salts.  The likely reason for this is that the legislature hopes that the ban on “any synthetic stimulant derivative” is enough to cover their bases when chemists undoubtedly figure out how to alter MDPV so that it is no longer MDPV, but an analog substance.

The Law Offices of Jerod Gunsberg are criminal defense lawyers who represent people accused of drug crimes and all other felony and misdemeanor offenses.

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