Friday, January 27, 2012

Smugglers Blues

Beware in the Texas Panhandle: (Texas Counties: Potter, More, Hartley & Dallam)
In my Criminal Defense practice I am seeing some alarming trends in Police Drug Interdiction tactics in the Texas Panhandle with Colorado’s relaxation of their Marijuana laws. I am finding myself defending people in these areas more than ever before. The Texas Highway Patrol (Department of Public Safety) and a few local agencies have stepped-up and bolstered their drug interdiction tactics dramatically in the Texas Panhandle corridor leading from Colorado in an area primarily North and West of Amarillo. US Highway 87 running through Potter, Moore, Hartley, and Dallam Counties appears to be the areas where police are most active in their Drug Interdiction Efforts. With a great deal of success they are apprehending a number of person transporting varying amounts of Marijuana from Colorado into the State of Texas. Often with those caught with smaller quantities, the cannabis was still contained within packaging from a Colorado dispensary. It appears the percentage of vehicles being searched during "routine" traffic stops in this area clearly exceeds the national average, which normally runs about 5% of the number vehicles stopped resulting in a search. These searches appear to be roughly split 50/50 consensual and non-consensual with no marked differences with consent in the percentage of instances where Marijuana was found.

Police Interdiction Tactics:
The interdiction tactics being employed by Texas State Troopers appear for the most part are run-of-the-mill. Aggressive use of traffic enforcement to generate and exploit opportunities to search are generally employed such as stopping someone for exceeding the speed limit only by one or two miles an hour, or other minor moving or equipment violations. My personal favorite (certainly the most cleverly-amusing) is their use of a ‘rolling surveillance’ where in a marked patrol car they travel along in the outside lane 10-15 miles an hour UNDER the speed limit, just to see who DOESN'T have the nerve to pass them because they have a carload of Ganja. Once stopped they will ask the driver a series of questions requiring a “No” answer (such as “you don’t have anything in your car do you?”) to get the driver into a pattern of saying “No” and will then say “Oh, well then you won’t mind if I search?” Of course another way they freequently generate "reasonable suspicion" is asking a series of harmless sounding questions and looking for inconsistencies. (Where are you coming from? Where are you going? etc. This is NOT just small talk!) Virtually all non-consensual searches involving Marijuana arrests I’ve seen involve an officer claiming he smelled it. With the pungent smell of marijuana these days it no longer has to be burning to permeate the vehicle or an officer to recognize it. There is a reason they call it Dank. While stops of this nature are technically legal when they begin, they can become illegal when the depth and scope of the police inquiry and the length of detention exceeds what is reasonably necessary based upon the initial reason for the stop. For example, in the cases of a traffic violation the officer exceeds the time it takes for him to make his customary checks and issue the citation. (And he really has no business messing with the passengers in cases of an alleged traffic violation.) In cases of reasonable suspicion, the officer exceeds the time it should take for his suspicions to be refuted or confirmed via lawful means, and nothing has been said or done to raise more suspicions. An officer may not detain a motorist longer than is reasonably necessary to complete the investigation absent reasonable suspicion of additional criminal activity.

State and Federal Drug Criminal Prosecutions & Drug Asset Forfeitures:
It appears being caught with a small amount will land the person in jail on State charges and cash and asset forfeitures (such as the vehicle used.) However, the Federal authorities are very quick to adopt cases involving larger amounts; and those instances where a firearm was also found in the vehicle, which gives a Federal prosecutor an instant twenty-year bump under their statutes in the plea-bargain process. Nearly all of those caught small amounts of hash were shocked to learn they were being charged with a felony under the Texas statutes. My best advice to anyone vacationing in Colorado not coming back by way of Omaha is to say: “What happens in Colorado, stays in Colorado” if you aren’t planning on needing me.

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