How Is the Weight Determined in Case of a Mixture in Drug Crimes?

How Is the Weight Determined in Case of a Mixture in Drug Crimes? 

Methamphetamine Mandatory Minimum Sentence 

How does the weight or Volume  of a controlled substance affect a drug sentence?

Wannabe Walter White Gets a Break

One court just changed the rules in how prosecutors can use the weight of drugs against defendants like the fictional Walter White. The Urban Dictionary tells us that a "wannabe' is a person "who copies or imitates all or most of the aspects dealing with their idol."

"The court found that since most of the substance was not usable by potential customers, there may have been an error in the weight calculation."

The weight of the controlled substance has a dramatic impact on the sentence imposed upon conviction or a negotiated plea agreement. Harsh minimum mandatory sentences are meted out by courts when the weight exceeds certain quantities.

Sometimes it might be a good idea to, "obtain an independent expert witness to analyze the liquids seized by police and to testify as to the amount of usable methamphetamine that could be produced from the liquids. . . " This is the takeaway from a recent federal drug criminal prosecution of a would-be / wannabe Walter White.

In an unusual fact pattern, the cops busted a guy who was in the process of making methamphetamine from pseudoephedrine. He used 2.4 grams of the precursor chemical, but was miraculously convicted of manufacturing over 50 grams of meth. The court found that since most of the substance was not usable by potential customers, there may have been an error in the weight calculation.

Usually Police Weigh Everything but the Packaging

In marijuana growhouse cases of manufacture of cannabis, police labs weigh the whole plant including the roots. In cocaine cases they weigh the powder including substances used to cut the drug. In Oxycodone cases they weigh the entire pill, even though it may include inert substances like acetaminophen. This decision may be limited to manufacture of controlled substances in a "laboratory" environment, since convictions for weed, coke, and oxy seem to still be intact.

Excerpts from the Court's Drug Quantity Decision

"The superseding indictment charged Griffith with manufacturing 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine, in violation of 21 U.S.C. § 841(a)(1)"

How Is the Weight Determined in Case of a Mixture in Drug Crimes?

"For a manufacturing methamphetamine offense, the total amount of the drug generally determines the penalty range, which is set by statutory minimum and maximum. See 21 U.S.C. § 841(b). If a defendant has a prior conviction for a felony drug offense and “50 grams or more of methamphetamine . . . or 500 grams or more of a mixture or substance containing a detectable amount of methamphetamine” were involved in the current offense, the range is 20 years to life." 

"the entire weight of the liquids attributed to him should not have been included in calculating the drug quantities"

What Happens When Illegal Drugs are Mixed with Other Unusable Substances?

"the liquids used to calculate his drug quantities were “unusable” toxic materials from the manufacturing process, and that he started with only 2.4 grams of pseudoephedrine and it “is impos[s]ible to turn 2.4 [g]rams of [p]seudoephedrine into more than 2.4 [g]rams of [m]ethamphetamine.”"

"we must accept that unusable liquids were counted in calculating the drug quantities that determined his mandatory minimum sentence and his advisory guidelines base offense level. We must also accept for present purposes that the liquids could not have produced any more than 2.4 grams of methamphetamine."

"The minimum amount of methamphetamine required for the jury to convict, as it did, under Count 1 is only a “detectable amount.” Griffith has always admitted that he had manufactured a detectable amount of it, and the evidence proved it. By contrast, the mandatory minimum sentence required a finding by the jury that Griffith had manufactured 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine, and Griffith has always disputed that he did manufacture or could have manufactured that amount."

Here is a report from our friends in the Federal Criminal Defense Bar:

James Harold Griffith was convicted by a jury of manufacturing 50 grams or more of a mixture or substance containing a detectable amount of methamphetamine. After losing his direct appeal, he filed a 28 U.S.C. § 2255 motion to vacate his sentence, arguing that his trial counsel was ineffective for failing to argue that some waste materials in the drug manufacturing process should not have been included as a “mixture or substance” in his drug quantity determination, a determination which triggered mandatory minimum sentences and also increased base offense levels under United States Sentencing Guidelines § 2D1.1.

After an in-depth review of the Supreme Court law, Eleventh Circuit law, and relevant guideline amendments dealing with the meaning of “mixture or substance”  as used in 21 U.S.C. § 841(b), which sets a defendant’s base offense level based on “the entire weight of any mixture or substance containing a detectable amount of the controlled substance,” the Eleventh Circuit reversed and remanded for an evidentiary hearing. 

The Court wrote that its precedent is clear and was clear at the time of Griffith’s sentencing that the entire weight of drug mixtures which are usable in the chain of distribution should be considered in determining a defendant’s sentence, but only when the mixture can be consumed along with the controlled substance by the end user. Otherwise, unusable parts and waste products that must be separated  from the controlled substance before the controlled substance can be consumed are not to be considered in the calculation of a defendant’s sentence. 

The Eleventh Circuit held that Griffith had made out a prima facie case that his counsel was ineffective in failing to present this case law to the sentencing court, and that there was a reasonable probability that he was prejudiced by counsel’s ineffectiveness. The Court thus remanded his case to the district court, where he would be allowed to prove the truth of his allegations at an evidentiary hearing.

James Harold Griffith v. United States of America, No. 15-11877

(September 26, 2017)

Appeal from the United States District Court for the Middle District of Alabama

Panel: Ed Carnes, Chief Judge, Rosenbaum and Dubina, Circuit Judges

Ed Carnes, Chief Judge: Reversed and Remanded

The full text of the decision can be found here:

http://media.ca11.uscourts.gov/opinions/pub/files/201511877.pdf

Another Florida Drug Dog Sniff Case Overturned

Drug Conviction Thrown Out - Bad Dog

Here are the facts of the most recent dog sniff case we have seen in Florida.

Officer patrolling with his drug detection dog when driver spotted in a truck with no seatbelt. Driver stopped for seatbelt violation. Cop asked driver to step out of the vehicle. Cops asked for consent to search the truck - denied. The officers then decided to conduct a “free sniff” with the dog. By that time, the information had come back from dispatch on the license and registration. Rather than write the ticket for the seatbelt offense, the officer went back to his car, retrieved the dog and commenced the sniff on the outside of the vehicle. Not surprisingly, dog alerts and meth found.

Why did a Florida Drug Crime Court find a Drug Dog Sniff was Unreasonable?

Methamphetamine Case Tossed - Open Door and the Community Caretaker Function

Warrantless entry
Medical Emergency
Community Caretaker

What Happens When Police Make a Warrantless Entry of a Home for Medical Emergency?

Treasure Island, Florida has become a hotbed of the methamphetamine world. So while on patrol, a cop saw an open door with mail on the floor near the mail slot. The decision was made to enter the home and make sure everyone was alright. Of course, while there, why not search the house and find some meth. Court says adios to this one. 

Given Central Florida's temperate weather in November, an open door at 8:00 in the morning, without more, cannot justify a warrantless entry based on a feared medical emergency or the community caretaker function.  

What happens when police make a warrantless entry of a motor vehicle?

Attorneys Note: Traffic cops use the community caretaker function to justify DUI arrests of drivers that are found sleeping in a parked car. In Florida, this is known as a DUI Actual Physical Control. You can see how a Florida Court addresses the seizure of a sleeping motorist.  Sometimes the opening of a door of a sleeping driver is handled the same way the court handled this Treasure Island case where the charges are thrown out after a Fourth Amendment motion to suppress is granted.

Complete Text of Methamphetamine, Warrantless Entry, Medical Emergency, Community Caretaker Opinion

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

Case No. 2D14-5582

STATE OF FLORIDA,

Appellant,

v.        

JOHN FULTZ

Appellee.

                       

Opinion filed January 22, 2016.                 

Appeal from the Circuit Court for Pinellas County; Chris Helinger, Judge.                   

Pamela Jo Bondi, Attorney General, Tallahassee, and Wendy Buffington, Assistant Attorney General, Tampa, for Appellant.                   

J. Andrew Crawford of J. Andrew Crawford, P.A., St. Petersburg, for Appellee.

SLEET, Judge.

The State appeals the order granting John Fultz's motion to suppress evidence in his criminal prosecution for possession with intent to sell, manufacture, or deliver methamphetamine. In this case, we are called on to determine whether the exigent circumstances exception to the warrant requirement for a feared medical emergency or performance of a community caretaking function justified the warrantless entry and search of Fultz's home.  Because the police had no objectively reasonable basis to believe that there was an emergency inside Fultz's residence to justify a warrantless search, we affirm.

Officer Lovelace, a patrol officer for the Treasure Island Police Department, was in the area of Fultz's townhouse at around 7:45 a.m. on November 26, 2013, where she had just completed a "house check" on a nearby home.¹ Officer Lovelace testified that she had been previously contacted by a citizen who had been keeping traffic logs for Fultz's townhouse due to "suspicious foot traffic." Two weeks prior to the search at issue, Officer Hansell, a St. Petersburg police officer who lived in the area, told Officer Lovelace that he suspected there was drug activity at the townhouse. Further raising her suspicions, when Officer Lovelace reported for her shift roll call that morning, Patrol Sergeant DeShay informed her of unconfirmed information he received from an informant regarding a possible meth lab in the garage of the townhouse.

After conducting the requested house check, Officer Lovelace decided to drive by Fultz's townhouse, which she suspected contained a meth lab. As she was passing by, she noticed that the front door to the townhouse was open, a light was on upstairs, some mail was on the floor under the mail slot, the garage door was closed, and a car was parked in the driveway. Officer Lovelace testified that based on her suspicion of drug activity, she called for backup about a minute after observing the open door.

¹Officer Lovelace testified that the residents of the home were out of town and had requested that Treasure Island police check in on their home, a service that Officer Lovelace routinely provides as a part of her patrol.

Sergeant DeShay and Officer Smallen arrived on the scene ten minutes later.  Before proceeding any further, DeShay contacted Detective Taylor in the Treasure Island police drug division and informed him of the situation, but Taylor declined to join them at the scene.  Notwithstanding, based on the open door, mail, and unconfirmed reports of drug activity, the three officers decided to enter the home to conduct a "welfare check" on the residents.  Sergeant DeShay testified that he knocked on the open door, announced "police," and then entered the residence. He immediately opened the door leading into the garage and discovered signs of an active meth lab. The trial court ultimately suppressed this evidence, and this appeal ensued.

A warrantless search of a home is "per se unreasonable under the Fourth Amendment . . . and Article I, section 12, of the Florida Constitution, subject to a few specifically established and well-delineated exceptions." State v. Boyd, 615 So. 2d 786, 788 (Fla. 2d DCA 1993) (quoting Cross v. State, 469 So. 2d 226, 227 (Fla. 2d DCA1985)); see also Seibert v. State, 923 So. 2d 460, 468 (Fla. 2006). Exigent circumstances are one such exception that may justify a warrantless search, but the police must have an objectively reasonable basis to support their actions. Vanslyke v. State, 936 So. 2d 1218, 1221-22 (Fla. 2d DCA 2006) (citing Brigham City v. Stuart, 547

U.S. 398, 403 (2006)); see also Boyd, 615 So. 2d at 789 ("[T]o allow a warrantless entry into a person's home in an emergency situation, there must be objectively reasonable circumstances that convey to the police officer an articulable, reasonable belief that an emergency exists.").

The exigent circumstances exception is not a shortcut by which police may circumvent the requirement of a search warrant.  These exceptions are based on a police officer's ability to articulate objective facts which make the procuring of a warrant impractical. See Davis v. State, 834 So. 2d 322, 327 (Fla. 5th DCA 2003) ("The sine qua non of the exigent circumstances exception is 'a compelling need for official action and no time to secure a warrant.' " (quoting Michigan v. Tyler, 436 U.S. 499, 509 (1978))). "[I]f time to get a warrant exists, the enforcement agency must use that time to obtain the warrant."  Herring v. State, 168 So. 3d 240, 244 (Fla. 1st DCA 2015), review dismissed, 173 So. 3d 966 (Fla. 2015) (alteration in original) (quoting Hornblower v. State, 351 So. 2d 716, 718 (Fla. 1977)).

In this case, the State contends that the police were justified in entering Fultz's townhouse because they reasonably believed that the open door and scattered mail portended an emergency. Specifically, the State argues that two particular types of exigencies justified the police action in this case: the community caretaker exception and the feared medical emergency exception.

The community caretaker exception arises from the duty of police officers to "ensure the safety and welfare of the citizenry at large." Ortiz v. State, 24 So. 3d 596, 600 (Fla. 5th DCA 2009) (quoting 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 5.4(c), at 201-02 (4th ed. 2004)).  It is clear from our review of the record that the officers involved in this case were motivated by a desire to serve and protect the Treasure Island community. And this court has held that "the operation of a methamphetamine lab is inherently dangerous, presents an immediate threat to public safety, and is well within the scope of the exigent circumstance exception." Barth v. State, 955 So. 2d 1115, 1118 (Fla. 2d DCA 2006). However, police community caretaker functions are "totally divorced from the detection, investigation, or acquisition of evidence relating to the violation of a criminal statute." Cady v. Dombrowski, 413 U.S. 433, 441 (1973).  And to justify entry under this exigency, the police must have a reasonable belief that a meth lab is being operated within a residence "based on their experience, facts developed during investigation, and observance of [the suspect's] activities."  Barth, 955 So. 2d at 1118. 

In this case, the officers who entered Fultz's home did not have any special training related to meth labs, had not conducted any investigation into the reports of possible drug activity in the home, and had not made any observations of the residents or their activities that morning. Prior to the warrantless entry, police had not conducted any surveillance or controlled drug buys, made contact with Fultz, or initiated any other investigation into the potential criminal activity or habits of Fultz.  Accordingly, we agree with the trial court's conclusion that the police did not have a reasonable belief that could justify a warrantless entry under the community caretaker exception to the warrant requirement.

The feared medical emergency exception "permits police to enter and investigate private premises to preserve life . . . or render first aid, provided they do not enter with an accompanying intent either to arrest or search." Riggs v. State, 918 So. 2d 274, 280 (Fla. 2005) (alteration in original) (quoting Hornblower, 351 So. 2d at 718). This exigency recognizes that when there is a threat to safety and no time to secure a warrant, "the need to protect life and to prevent serious bodily injury provides justification for an otherwise invalid entry."  Vanslyke, 936 So. 2d at 1222 (quoting Riggs, 918 So. 2d at 279)).  However, the police must have an objectively reasonable fear that a medical emergency is occurring inside the residence.  See Riggs, 918 So. 2d at 281. 

                       The officers testified that the open door and the mail in the foyer coupled with their suspicions of an active meth lab led them to believe that someone inside had overdosed or was otherwise in need of immediate medical attention. The cases relied on by the State are distinguishable from the facts of this case because in each the officers' belief that there was an immediate need for their entry into the residence to address a medical emergency was based on more than just an open door, mail, and unconfirmed and uninvestigated reports of drug activity. See, e.g., State v. Shillingford, 136 So. 3d 1242, 1244 (Fla. 5th DCA 2014) (holding that exigent circumstances existed when officers summoned to investigate a domestic battery "arrived and observed [a] blood trail leading to [the defendant's] apartment[] and heard moaning coming from within the apartment"); Davis, 834 So. 2d 322 (holding that warrantless entry was lawful when a neighbor, who called police about a possible burglary, reported an open front door and the resident's dog was wandering outside and police observed signs of forced entry). In this case, the officers were not summoned to the residence for concerns regarding the residence or its occupants, did not see any blood or evidence of possible criminal activity, did not hear anything within the residence that would lead the officers to reasonably conclude that someone in the residence was in distress, and observed no signs of forced entry. The officers conducted no investigation into the unconfirmed reports of a meth lab on the premises and witnessed nothing consistent with the presence of a meth lab. There was nothing that could have led the officers to form an objectively reasonable belief that there was an ongoing medical emergency in the residence that required their immediate assistance.

 

We agree with the trial court that the Treasure Island Police Department's expressed policy of entering a home when they observe an open door and the residents fail to answer their hail is constitutionally troubling. There are many reasons that a citizen could leave a door to their home open; an open front door alone is not enough to support a reasonable belief that an exigency exists and cannot justify a warrantless entry into a residence.  See, e.g., Kyer v. Commonwealth, 612 S.E.2d 213, 217 (Va. Ct. App. 2005) (holding that an open door on an August night absent some other reason for concern could not support a reasonable belief that would justify entry under the exigent circumstances doctrine); State v. Christenson, 45 P.3d 511, 513 (Or. Ct. App. 2002) ("[A]n open door on a summer morning is not, in and of itself, a circumstance that could give rise to a reasonable belief that entry is necessary to prevent harm to persons or property. It is simply too common an event to create a concern of harm in the absence of other signs of trouble."). Given Central Florida's temperate weather in November, an open door at 8:00 in the morning, without more, cannot justify a warrantless entry based on a feared medical emergency or the community caretaker function.  As explained in Hornblower, the police may not "approach a dwelling, armed only with their own subjective suspicion that illegal activity was afoot, and wait for some . . . justification to break down the door and burst into the dwelling."  351 So. 2d at 718.

Accordingly, we affirm the order granting the motion to suppress.

Affirmed.  

WALLACE and KHOUZAM, JJ., Concur. 

6 Drugs The Feds Like to Prosecute and the Consequences

Drugs The Feds Like to Prosecute

Trafficking in these 6 drugs constitutes 97 percent of Federal Drug Prosecutions. How does the DEA, law enforcement, and Federal Prosecutions impact drug trafficking? Sometimes these policy choices impact society in ways that are counter-intuitive. When the focus goes to synthetic opioids like oxycodone, the natural substitute, trafficking in heroin spikes. Recent data shows that the war on pill mills has reduced the supply of pharmaceuticals and driven users to heroin. Heroin overdoses are now spiking. When crack cocaine penalties were reduced, trafficking declined. Here are six drugs to traffic and get a ticket to a federal indictment and prison.

Six Drugs To Get You in Federal Prison

Powder Cocaine 

Marijuana 

Methamphetamine 

Heroin 

Oxycodone 

Crack Cocaine 

Once the Feds target a drug, the prosecutions and prisoners increase. For example, methamphetamine traffickers decreased after 2006 , then increased again since 2009. Once the war on synthetic heroin, also known as oxycodone was commenced, after remaining stable for much of the past decade, the number of heroin traffickers has increased. Although oxycodone trafficking is low compared to other drug types, there has been a substantial increase. 

Once the Feds reduced sentences and focused elsewhere, Crack cocaine trafficking has decreased since 2008 when reductions in crack cocaine penalties were first implemented. Now that legalization has begun, marijuana trafficking now has seen a sharp decline in  2013. With the sometimes unexpected consequences of drug policies in play, one can wonder why these decisions to target certain controlled substances are made and who is calling the shots?

Source: United States Sentencing Commission 

Florida Amphetamine or Methamphetamine Minimum Mandatory Law

Florida Statute § 893.135  Amphetamine or Methamphetamine Minimum Mandatory Sentences

Florida laws on Amphetamine or Methamphetamine provide harsh minimum mandatory sentences that kick-in at 14 grams. The stakes become higher when 28 grams are alleged and proven by admissible evidence to a jury and/or sentencing judge in Florida State Courts. A 15 year minimum prison sentence is possible at 200 grams.

The United States Code also provides harsh sentences for trafficking in this controlled substance. At 50 grams a life sentence is possible for certain defendants.See 21 USC §§ 841(a), 841(b)(1)(A); § 2D1.1  for more information.

Amphetamine or methamphetamine	14 – 28 grams	3 years, $50,000 fine
	28 – 200 grams	7 years, $100,000 fine
	200+ grams	15 years, $250,000 fine

Drug Smuggling Video

Trafficking Smuggling, Trafficking, Smuggling, methamphetamine, Heroin, Marijuana, Cocaine

Clip from Discovery Channel takes an inside look at the world of drug smuggling  in Extreme Smuggling.