Charge Everyone and Let the Jury Sort it Out.

On 8-12-13 at approximately 1125 hrs I Officer Jones noticed a vehicle traveling eastbound on Main Street.  The vehicle appeared to be traveling above the posted speed limit.  I activated my radar unit and locked the vehicle in at 30 mph in a 25 mph zone.  I activated my emergency lights and proceeded to make a traffic stop of the vehicle.

I made contact with the driver and requested his driver’s license, insurance and registration.  There were three passengers in the vehicle and I requested identification from each of those individuals.

I could smell a strong odor of marijuana emanating from the vehicle.  All occupants were removed from the vehicle and patted down for officer safety.  All occupants denied the presence of any contraband in the vehicle.  The occupants were asked to have a seat on the curb while I searched the vehicle.

During the search of the vehicle a plastic baggie containing approximately 1 gram of a green leafy substance was located in the center console.  Based upon my training and experience this substance appeared to be marijuana.

All occupants denied the marijuana was theirs.  All occupants were subsequently placed in handcuffs and charged with Possession of a Controlled Substance.

Sound familiar?  This is an all-to-common fact pattern that comes across our desks on a regular basis.  The same basic principles apply to other forms of contraband as well as to other locations, such as houses and apartments.  So, in these types of situations, where contraband is found near multiple individuals how do prosecutors, defense attorneys, the courts and juries sort out who is responsible?

The law delineates two types of possession: actual possession and constructive possession.  A person actually possesses contraband when it is found on his or her person; such as when a baggie of marijuana is found in someone’s front pant pocket.  When an individual has knowledge of an item’s presence and has the authority or right to maintain control of the item, that person constructively possesses the item.  The aforementioned fact pattern is an example of a constructive possession case.

Pursuant to Iowa law, to prove a constructive possession case the State is required to prove beyond a reasonable doubt the defendant:

(1)          exercised dominion and control over the contraband;

(2)          had knowledge of the presence of the contraband; and

(3)          had knowledge that the material was a controlled substance.

In the fact pattern presented, possession of the marijuana cannot be inferred due to multiple individuals occupying the same vehicle.  Under these circumstances there are a number of factors that are examined to determine whether each defendant had knowledge and was able to maintain dominion and control over the contraband.  These include (1) incriminating statements, (2) incriminating actions when contraband is discovered in or near the defendant’s belongings, (3) fingerprints, or (4) any other circumstances linking the defendant to the contraband. 

In motor vehicle cases additional factors that are considered are (1) was the contraband in plain view, (2) was it with the defendant’s personal effects, (3) was it found on the same side of the car seat or next to the defendant, (4) was the defendant the owner of the vehicle, and (5) was there suspicious activity by the defendant. 

If you ever find yourself in a similar position it is in your best interest to simply remain silent and know you will be better off in the long run if you simply don't say anything.  Shut up; Wise up; Lawyer up.  Just in case you need a friendly reminder in your time of need, don’t forget to download the Oh Crap App available at Android Market and iTunes.

So Pot is Legal in Your State

But officer, pot is legal in my State….

This election day, two states are reported to have legalized recreational use of marijuana – Colorado and Washington.  Oregon voters were also presented with the issue on their ballots but voted against recreational legalization.  In addition to the legalized recreational use, according to the National Organization for the Reform of Marijuana Laws or NORML, another 18 states have authorized marijuana use for medicinal purposes.  Iowa is not one of them.  Marijuana cultivation, possession, and distribution is still illegal under Federal law.

The question that has started to rise and will most likely arise with greater frequency is, what happens if an individual from a state where marijuana is legal for recreational or medicinal use is caught in possession of pot in a state where it is illegal.  The first answer to the question is relatively straight forward – that person will most certainly be arrested and prosecuted for the offense.  The State of Iowa still has some of the toughest marijuana laws in the nation.

After the individual is arrested and charged however, there are two likely defenses, in addition to the traditional defenses such as illegal search and seizure, which could be attempted.

First, one might be tempted to argue that one state must give another state’s laws full faith and credit under the Federal Constitution.  Unfortunately that argument does not ordinarily apply to criminal statutes.  For example, just because it is legal for a 21 year old to have sex with a 14 year old in one state, does not make it legal for that same activity to occur in a state where the age of consent is 16.  That might be an extreme example but think about it; just because you can drive 70 mph on Interstate 35 or Interstate 80 in your state does not mean that you can drive 70 in a state where the posted speed limit is 65 on the same interstate.  The same argument will be made regarding marijuana possession.  If it is illegal in the state you are in at the time you possess it, chances are you can still be found guilty.  Ones efforts are probably better focused on other more legitimate defenses.

The second and more promising potential argument, at least in the State of Iowa, relates to the possession of medicinal marijuana.  Iowa Code §124.401(5) prohibits the possession of controlled substances, including marijuana.  However, it specifically states: “It is unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner….  Consequently, an arguable defense to the charge is built right into the statute IF the person possessed the pot pursuant to a valid prescription or order of a practitioner.

This exception would NOT apply to felony possession offenses such as Possession with Intent to Deliver, or Manufacturing. NOTE: Sharing pot qualifies as “delivery” in the State of Iowa!  Furthermore, if the prescription has expired or the amount possessed exceeds the amount authorized under that prescription, this defense will not have a chance.

Obviously, it should go without saying that the best defense to any crime is not to place oneself in a position where they are at risk of getting arrested and charged in the first place.  That is never a pleasant experience.  That being said however, some of us are willing to take greater risks than others.  If you happen to be a risk-taker driving through the State of Iowa, understand that there is a good chance of having to endure the unpleasant experience of Iowa’s drug interdiction efforts which are certain to increase with other states legalizing recreational use of marijuana.  If you find yourself in such a position, you will wish that you had first educated yourself on your constitutional rights that apply to a traffic stop/interdiction situation.  Effectively exercising your rights can make all of the difference.  Remember GRL Law’s tag line: Shut up; Wise up; Lawyer up.

1.    Shut up – anything and everything you say can and will be used against you.  If you admit to the officer that you only intended on “sharing” your pot with your friends – you just admitted to a Felony in the State of Iowa.  Shut up!

2.    Wise up – You do not have to consent to a search of your person or vehicle.  If you or your friends may be in possession of something illegal, exercise that right.  The more obstacles a law enforcement officer must jump over, the greater chance there is of him making a mistake on your case.

3.    Lawyer up – Don’t go at it alone.  The consequences in the State of Iowa are still severe and a conviction remains on your record in this state for life.

Don’t let a fun recreational trip cross country turn into an eye-opening encounter with another state’s criminal justice system.  At the very least educate yourself before you leave home.

Know your rights; Exercise your rights; Preserve your freedom.

Smell of Marijuana and Probable Cause

It is not uncommon for police officers to claim that they "immediately detected a strong odor of marijuana" coming from the vehicle, apartment or house. They then use that in an attempt to justify a subsequent search of the car or residence. This begs the question: does the smell of marijuana, standing alone, create probable cause to search? The answer is "yes but ..."

According to the Iowa Supreme Court's recent decision in State v. Watts, the odor of marijuana, burnt or fresh, may create probable cause to search a particular location so long as a few requirements are met. First, the State is required to establish that the odor is sufficiently distinctive to identify a forbidden substance and second, the they must establish the training and qualifications supporting the officer's conclusion that the odor was indeed marijuana. In other words, they have to prove that the officer has sufficient training and knowledge to allow him to accurately and reliably detect and identify the odor as being from marijuana. Establishing prior experience in narcotics enforcement investigations is ordinarily sufficient.

These requirement are based upon the United States Supreme Court's decision from 1948 in Johnson v. United States where the Court stated: "If the presence of odors is testified to before a magistrate and he finds the affiant qualified to known the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant." Johnson v. United States, 333 U.S. 10, 13 (1948). The Iowa Supreme Court has followed that reasoning and in State v. Watts, reconfirmed those requirements.

If the State can establish the required foundation pertaining to the odor of marijuana, probable cause is shown to exist. The next question then becomes was a warrant obtained or was the search conducted without a warrant. If a search warrant was obtained, the application for the search warrant must contain sworn information regarding the officers qualification and experience in detecting the odor or the search warrant will not be valid. The prosecution is not allowed to add to the warrant application or present additional evidence that is not contained in the warrant application once the warrant is approved. What's written in the application at the time it is submitted to the judge or magistrate will determine whether or not probable cause has been established.

If the officers proceed to search without a warrant, they must be able to prove that an exception to the search warrant requirement existed. The most common exceptions are: 1) exigent (emergency) circumstances, such as the immediate threat of evidence destruction; 2) consent; 3) search incident to arrest; or 4) plain view. In most cases law enforcement will attempt to rely upon either emergency circumstances or consent. Remember, a person is NEVER required to consent to a search of their person or property. For more information on your rights pertaining to searches, click here.

Emergency circumstances automatically exist when the smell is coming from a vehicle. Right or wrong, the Supreme Court has held that the inherent mobility of a vehicle creates the danger that the evidence will be destroyed or otherwise dissapear if the vehicle is not searched. For apartments, houses or other residences, the State must establish particular facts that reasonably lead them to conclude evidence is in imminent danger of being destroyed before they may proceed to enter a house without a search warrant. In Watts, the prosecution attempted to argue that the officer was justified in entering the apartment without a warrant "because he didn't know if there were any other individuals inside the residence" that could attempt to destroy evidence. The Iowa Supreme Court said that it is not enough "not to know." Rather, there must be specific information that reasonably leads the officers to believe there are individuals inside the residence that pose an immediate threat of destroying the evidence. Hearing movement and scurrying around within the residence may be sufficient to meet that burden.

In conclusion, the smell of marijuana detected by a trained and qualified individual who is shown to be familiar with the odor, can create probable cause to search. However, it is important to ensure that the proper foundation for that evidence is established. It is equally important to ensure that those facts are sufficiently set forth in the search warrant application or if no search warrant was obtained, that the State can meet its burden of proving that an exception to the warrant requirement existed at the time of the search. It is the seemingly little details that can make a huge difference in search and seizure cases.

KNOW YOUR RIGHTS, EXERCISE YOUR RIGHTS, PRESERVE YOUR FREEDOM.

A Doggone Shame

Mans best friends have been used for decades in an effort to detect the odors of narcotics in drug interdiction operations. This time however, "mans best friend" played a different role, landing their owner in jail on a pot charge. In the case of State vs. Pals, a decision recently handed down by the Iowa Court of Appeals, a couple of mischievous canine’s landed their owner in jail for possession of marijuana.

Court of Appeals decision started with the quote: “This case began with the question, ‘Who let the dogs out?’” In a story that could only happen in a small Midwest town, the Worth County Sheriff’s office responded to a call that two dogs, a tan and brown Brittany Spaniel and a Chocolate Labrador, were running loose and “knocking stuff down” in the City of Joice. This was a violation of the city ordinance prohibiting dogs from “running at large.” Dutiful to his oath to “protect and serve,” Worth County Sheriff Deputy Mark Wubben (hereafter “The Dutiful Deputy”) responded to the call and saw the dogs running loose but noticed that they did not have tags or collars. Upon talking to the town people, The Dutiful Deputy still could not determine who the owned the rambunctious canines but he observed a white pickup truck with a red topper that appeared to be looking for the dogs as well. A short time later, The Dutiful Deputy’s sharp vision allowed him to see that the Brittany Spaniel was in the back of the truck but the Labrador was nowhere to be found. Unable to find the Labrador, The Dutiful Deputy continued with his investigation and learned that the dogs had escaped from a fenced-in area behind a bar where their owner, Mr. Pals was playing pool.

Finally, unable to locate the long lost Labrador, The Dutiful Deputy headed back out of town. However, on his way out of town he encountered Mr. Pal’s vehicle, the white pickup truck with a red topper, going the other way. According to The Dutiful Deputy, he pulled Mr. Pals over “because he wanted to talk to him about the dogs and advise him that the dogs needed tags and collars.” Being pulled over Mr. Pals was polite and cooperative and informed The Dutiful Deputy that both dogs had been recovered and that the Labrador was likely hiding in the kennel under the topper. Unfortunately for Mr. Pals, he was unable to produce his insurance card when requested and The Dutiful Deputy then asked that he accompany him to his car. After approximately 6 minutes of “friendly” conversation The Dutiful Deputy asked Mr. Pals whether he could search his vehicle. At the time he made this request, he had no basis to believe that Mr. Pals was in possession of anything illegal or was engaged in illegal activity. However, Mr. Pals consented and the Dutiful Deputy discovered the “green leafy substance” that ultimately landed Mr. Pals in jail.

While this case has some considerable legal issues that were discussed by the Court of Appeals, including a well-reasoned dissent written by Judge Doyle which would be a great subject of another blog topic at a later date, the story of the Dutiful Deputy and the “dogs at large” serves as a very good object lesson. Citizens in this State can never be required to consent to a search of their person, vehicle or home. Law enforcement will routinely ask for permission even if they do not suspect any criminal wrong doing for precisely the reason illustrated in this case. Sometimes they stumble across things. It never makes sense for a citizen to consent to a search of their person, vehicle or home, if they know they are in possession of contraband. Likewise, we never know what others have place or left in our vehicle but you can be certain if you consent to a search and contraband is found in or on your property, you will be the one charged. An important object lesson learned the hard way by Mr. Pals thanks to his rambunctious canine friends.

Know your rights; Exercise your rights; Preserve your freedom.