The Case of “Bosko” the Police Super-Dog!

By: David Sloane, NORML Attorney

Occasionally, I run across an appellate case where the court’s blind acceptance of the Police account of events surrounding a Marijuana arrest is astounding, even for me. This one comes Carrolton, Texas. (A suburb of Dallas.) In $27,877.00 CURRENT MONEY of the UNITED STATES, v. The STATE of Texas, an asset forfeiture case, the Carrolton Police alleged their dog “Bosko” from under a garage door was able to “sniff” and “alert” on the mere scent of Marijuana on currency concealed in a gym-bag under a bed in a back room of the Defendant’s parent’s home. The trial court accepted this and the appellate court agreed. According to the appellate opinion: “…In March 2007, Carrollton Police Department Narcotics Officer Mai Tran received information from a confidential informant that Roberts was trafficking marihuana and alprazolam (also known as Xanax) from a house in The Colony, Texas, where Roberts lived with his girlfriend and some friends. Officer Tran obtained a search warrant from a City of Carrollton magistrate (with jurisdiction in Dallas and Denton Counties) and executed the warrant at 4249 Malone Avenue, The Colony, Texas (the Malone address), in Denton County. At the Malone address, Carrollton police officers found 8.5 tablets of alprazolam, 2 tablets of hydrocodone, 4.48 grams of marihuana, and $4,857 in cash. Roberts was arrested. After the arrest, Officer Tran received additional information that Roberts, fearing that the police would raid his home, had moved drugs and money to two separate places. Specifically, the information was that Roberts had moved drugs to the house of James Savoldi, a friend and alleged "runner" for Roberts, and had moved money to Roberts's parents' house. Carrollton Police Officer Jeremy Sanchez, a canine handler, and his dog, Bosko, performed a " sniff search" on Savoldi's home at 4601 Freeman Drive, The Colony, Texas (the Freeman address), in Denton County. Bosko " alerted" to an odor at the front door of the house. Based on the information from the informant and the sniff search, Officer Tran obtained a search warrant for the Freeman address. During the execution of the warrant, Savoldi admitted to the police that he was holding the drugs for Roberts. Savoldi had hidden a black gym bag with approximately two pounds of marihuana at the Freeman address. When he heard from Roberts's girlfriend that the police had searched the Malone address, Savoldi took the bag of marihuana from his house to a hotel in Addison, Texas, where it was later confiscated by Carrollton police officers. Roberts pleaded guilty to the felony offense of possession of more than four ounces but less than five pounds of marihuana for the marihuana that the officers found in the Addison hotel room. While in jail, Roberts made a phone call and advised an unknown person that "the money" was in a bag under his brother's bed at Roberts's parents' house, 4628 Archer Drive, The Colony, Texas (the Archer address), in Denton County. Officer Sanchez and Bosko conducted a sniff search around the exterior of the Archer address, and Bosko alerted at the bottom of the garage door. Officer Tran obtained a search warrant for the Archer address from the same magistrate in Carrollton as the previous two warrants and executed that warrant. There, the police found $23,020 under the brother's bed, in bills of various denominations, tied with hair bands. In a written statement to the police, Roberts's brother denied any knowledge or ownership of the money. …The money recovered from the Archer address was taken to the Carrollton Police Station, where Officer Sanchez conducted another sniff search. This time, he took three new paper bags and put the money in one of them. Each bag was closed by folding over the top and all three bags were placed in a hallway about six feet apart. Bosko sniffed all three bags and alerted on the sack containing the money.” The trial court found Bosko’s sniff among other facts was enough to create a nexus between the money seized and the Marijuana to warrant an asset forfeiture where the government gets to keep the money. On appeal, the Fort Worth Court of Appeals held: “At trial, it was the State's burden to establish, by a preponderance of the evidence, a substantial nexus or connection between the property to be forfeited and the statutorily defined criminal activity, which it may do by circumstantial evidence. …That is, the State must show that it must be more reasonable than not that the money was derived from the sale of controlled substances. Considering all the evidence in this case, we cannot say that the foregoing evidence is so weak or the evidence to the contrary is so overwhelming that the judgment should be set aside. See Garza, 395 S.W.2d at 823. …Accordingly, we hold that the evidence is factually sufficient to support the trial court's determination.” However, the potential of outlandishness of these claims concerning Bosko’s ability did not escape the notice of a couple of the justices in their dissenting opinion. They stated: “After the police seized the money from underneath the bed, it was taken, presumably, in a police unit that had transported drugs and drug users in the past— if police testimony of all the drugs found hidden behind the back seats of police units is to be believed— to the Carrollton police station, where Officer Sanchez put the money in one of three brand new paper bags. Again, one wonders how many drugs and drug users had been brought into the Carrollton police station before the cash in question arrived and how thoroughly either the police station or the police car was cleaned between seizures. Miraculously, the Amazing Bosko alerted on the sack containing the money. Apparently, Bosko had solved the case and provided Officer Sanchez the provenance of the money. Bosko " proved" to the police that Roberts owned the money and that it was contraband as proceeds from the sale of narcotics.” This indeed is an amazing dog!

Are Texas Hash Statutes Unconstitutionally Vague?

Recent discussions of current events have directed our attention to Texas Statutes purporting to prohibit the possession of so-called “Hash.” In the overwhelming majority of states, simple possession for small amounts of so-called “Hash” derived naturally from the Marijuana plant is treated exactly as possession of Marijuana, punishable as a misdemeanor. Even Oklahoma, known for their draconian drug laws merely treats so-called “Hash” the same as marijuana. Therefore, it comes as no surprise to me when cannabis consumers routinely react with shock, horror, and disbelief to learn they are being charged with a felony by simply possessing derivatives of their beloved plant. In Texas, possession of so-called “Hash” is classified as felony of varying degrees of severity, depending on how much so-called “Hash” is possessed by aggregate weigh.
The reason I am being really squishy on what exactly I mean by “Hash” is because I really don’t know the legal definition myself after reading it our Texas criminal statutes. Indeed, the definitions in the Criminal laws in all the states trying to distinguish components derived from only from the marijuana plant tend to get squishy. Could it be because a rose by any other name is still a rose?
The due process clause of the Fifth Amendment requires that criminal statutes give reasonably certain notice that an act has been made criminal before it is committed. Every person should be able to know with certainty when he or she is committing a crime. A statute is void when it is vague either as to what persons fall within the scope of the statute, what conduct is forbidden, or what punishment may be imposed. I believe we should now be asking if our Texas statutes pass constitutional this constitutional muster as they are written.
Texas Health and Safety Code Sec. 481.103 - Penalty Group 2, defines so-called “Hash” (although they do not call it that) as:
“Tetrahydrocannabinols, other than marijuana, and synthetic equivalents of the substances contained in the plant, or in the resinous extractives of Cannabis, or synthetic substances, derivatives, and their isomers with similar chemical structure and pharmacology (goes on to list delta 1,3, 4, and 6 cis tetrahydrocannabinols and their optical isomers); compounds of these structures, regardless of numeric designation of atomic positions, since nomenclature of these substances is not internationally standardized.”
Well now, that certainly clears things up. That should give every citizen of normal intelligence fair and reasonable notice that beating or grinding the kief out of their misdemeanor quantity of Cannabis makes it a felony, right? In determining a statute's plain meaning, we read the words and phrases in context, and construe them according to the rules of grammar and common usage. Perhaps one of our grammatical scholars can tell us if other than marijuana being offset by commas is meant to exclude some form of marijuana that does not contain the same active components from which so-called “Hash” is derived naturally from the cannabis plant. Or can the definition still be fairly read to mean all forms of Tetrahydrocannabinols, whether synthetic or natural are excluded and therefore lawful.
This issue has been raised before. Back in 1974 the Texas Court of Criminal Appeals purported to address this very issue. In Ex parte Psaroudis, 508 S.W.2d 390 (Tex.Crim.App.1974) an appellant from Harris County challenged this language under then Section 4.02 of Texas Controlled Substances Act that said “Tetrahydrocannabinols other than marijuana and synthetic equivalents…” and the court went into a strained interpretation of the legislative intent of the statute and concluded that perhaps they should add these pesky commas, to offset and specifically exclude marijuana from so-called “Hash.” However it appears from the record this was a direct attack on the plain meaning of the statute rather than a challenge the statute itself was unconstitutionally vague. It is important to note in 1974 the court pointed to Schedule-1 which also then contained Tetrahydrocannabinols with an identical definition except the “other than marijuana” upon which they relied heavily on their interpretation of legislative intent that Texas meant to exclude marijuana and not the extracted active components. Tetrahydrocannabinols no longer appears in the lists of Texas Schedule-1 narcotics and are now only discussed in Schedule-2. Finally, in 1978 there was a direct Federal constitutional challenge on the vagueness of the statute arising out of the Western District of Texas. The 5th Circuit court of appeals held:
“By her petition for writ of habeas corpus appellant raised the issue presented here, that the Texas Controlled Substances Act is unconstitutionally vague because of its failure to give adequate notice of the proscription of and penalties for possession and delivery of hashish. The contention centers on the punctuation and structural make up of Section 4.02(c), Subsection N of the Texas Controlled Substances Act… Petitioner's attack on the statute under which she was convicted is without merit. The Petitioner has improperly read the statute, and under this reading, concluded that it does not encompass the activity in which she was engaged and that the way the statute was interpreted by the Texas Court of Criminal Appeals stretched it beyond its literal language, thus failing to give fair warning to the Petitioner. The statute, fairly read, gave notice to the Petitioner that her conduct was prohibited, even prior to its construction by the Texas Court of Criminal Appeals. Even more importantly, however, the Texas Court of Criminal Appeals had already construed the statute so as to reach the conduct in question prior to the date of the transaction. Ex parte Psaroudis, 508 S.W.2d 390 (Tex.Crim.App.1974). Thus, the criminal law in question was not so vague as to deny Petitioner her federal constitutional rights."
Rogers v. Estelle, 571 F.2d 1381 Here, the court totally dismissed the void for vagueness challenge based upon the prior holding in Texas that fair notice was given with the non-marijuana distinction then listed in Schedule-1. That distinction relied upon by the Court of Criminal Appeals no longer exist in Texas in the new Texas Health and Safety Code. And again, this was in 1978, where the public attitudes about marijuana were somewhat different than they are today. It is my opinion we should raise this challenge again when the right case comes along. Meanwhile, I guess we are all left with our gratitude that we have a government that would be so clear about the rules they use to lock their citizens away.
David B. Sloane, Attorney
DFW NORML Public Information Officer
http://www.sloanelaw.com

Possessing Grandpa's old Mossberg Shotgun can land you 10 years in prison under Federal Law if you smoke Marijuana

According to Congress, a person that uses cannabis for medical purposes or otherwise (illegal under Federal Law) effectively forfeits their right to keep and bear arms under the 2nd Amendment. 18 U.S.C. § 922(g) prohibits specified categories of persons from shipping or transporting in interstate or foreign commerce or from receiving any firearm or ammunition which has been shipped or transported in interstate or foreign commerce or from possessing, in or affecting interstate commerce, any firearm or ammunition. A violation of 922(g) can lead to a maximum term of 10 years imprisonment, unless the statutory enhancements of the Armed Career Criminal Act apply.

18 U.S.C. § 922(g) states:

It shall be unlawful for any person– …

(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. § 802));

…to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has shipped or transported in any interstate or foreign commerce.

David Sloane, AttorneyDFW-NORML Public Information Officer
http://www.sloanelaw.com

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.

http://www.sloanelaw.com

Required proof in possession cases.

Proximity possession cases (where the contraband is not found directly on a person, but rather, in their proximity in small amounts) are very weak at best for the prosecution UNTIL the person in question runs their mouth! The police aren’t just being smartasses when they fish for responses while brandishing the contraband with a “what have we here?” They’re wanting the person to give them evidence via verbal statement of knowledge the contraband was there, a required element of a possession offense. Merely being present at the scene where contraband is found does NOT make one guilty of possession! Admitting knowledge does!

Marijuana "420" Police Car a HIT!

NORML "420 Truth Enforcement" cop car has proven to be a tremendous hit with fans in the Dallas/Fort Worth metroplex. Sponsored by the Law Offices of David Sloane, the car was unveiled on May 7, 2011 during the world marijuana march held at the Dallas venue as seen here. David Sloane is a member the NORML National Legislative Committee and on the local DFW NORML board of directors.

This car has became one of the most photographed vehicles around. It cannot be driven or parked anywhere without people breaking out their camera phones. There was a great deal of trepidation as to how the REAL police in the area would respond. But Sloane says all in all the local police have been really good sports about it. Most are amused. Since hitting the road, the car has been stopped once by a Traffic Officer wanting to insure the light-bar did not violate any state or local laws prohibiting non-emergency vehicles from having flashing red or blue lights. Once he sae the lights were green, he was fine, and also asked if he could take pictures of the car.

If you have a local venue or event where you would like the NORML cop car to make the scene, or to arrange for one of our speakers for your group please contact us at http://dfwnorml.org. To contact Attorney David Sloane use the email link on his website at: http://www.sloanelaw.com

Attempting to Locate Witnesses - Lockdown incident at Texas Women's University. Please Help

I represent Christopher Gillette in his current difficulties with the law and Texas Women's University. I am attempting to locate student/witnesses that were present and personally heard the statements he made during his emotional outburst in a Government Class on Monday, March 1, 2011 on the campus of Texas Women's University shortly before his arrest. I am anxious to interview witnesses while their memory of exactly what was said is fresh. Likewise, I would ask them to PLEASE preserve any recordings or class notes made by them at the time of the incident or any communications in all forms (ie. Text messages, bulletins, etc.) received from the University concerning the incident. If you personally witnessed any of these events (or know anybody that did) please (have them) contact my office at 817-810-0088, or by email at davidsloanelaw@yahoo.com, or via private email through my facebook: http://www.facebook.com/profile.php?id=100001830517527

Thank you for any assistance you can provide.

David Sloane