Most Common Scenarios Regarding Drug Crime

(The content below was transcribed from an interview done with Acacia Law. We think you'll find it much easier
and more enjoyable to read this way.)

Interviewer: So you said that this a common scenario, what are the most common scenarios?

Acacia Law: People smoking in their apartments or who are in their cars are the most common.

Interviewer: Well, what can people do to protect themselves? Is there anything or no?

Acacia Law: Well, I mean, use common sense. I mean, let's say if you're smoking in your living room and you, yourself have noticed or friends have noticed that if they come to your front door, they can smell burning marijuana smoke coming underneath the door, they can smell, you can pretty guarantee that that's not where you want to be smoking. In terms of what are some smart things to do? Well, I know some people who take wet towels, put them underneath the door like in a bathroom and then the smoke, and blow smoke in the into the fan, that's usually in most bathrooms, that sucks air out. That reduces the likelihood that anyone is going to smell it.

And it's usually smart, as far as cars go, they usually have cloth components on the chairs and things of that nature and, essentially, alcohol, marijuana and some other substances have a tendency, you don't see it in the air, you can't see it, it's at microscopic level, but actually, the substances that you blow out as smoke are particles and they cling to what is, basically, material that is conducive to clinging.

So a lot of times when people have been drinking in their car, for example, the officer has them roll down the window and they smell alcohol coming from the vehicle it's, basically, a very powerful smell, whether it be marijuana or alcohol because all the particles have essentially settled in certain components in the car whether it be the carpet or cloth seats and it's there to stay for awhile. The smell won't dissipate for a while.

Interviewer: So have do you ever get stuff suppressed? I mean how does that happen? It seems like the law just lets them do whatever they want and how do just . . .

Acacia Law: It's usually through Motions to Suppress that I operate. The bottom line is that in certain scenario, all the scenario I've given, I've usually been able to, oftentimes, come up with some defense depending on the circumstances. But each one is, kind of, fact specific, which is why I always have the clients come in, give me their side of the story. And, again, if an officer, if they tell me flat out that the officer said he saw a roach in an open ashtray in the vehicle but in fact the officer manually opened the ashtray and looked and saw it. Okay?

You've got something to work with because the officers exceeded their authority at that point and were basically searching the car without having any probable cause at the time. Now they're trying to charge everyone with it because everyone was in the car, even though it was closed, they're saying it was opened, but they themselves are the ones who manually opened up the ashtray and now are charging everyone in the vehicle. So, again, that's just one example, I mean, there's a thousand different avenues of approach that I use in order prevail.

Interviewer: Well, how do go against what the cop said, she said, he said, she said type of thing. I mean, how does that have any bearing?

Acacia Law: It's up to the judge, but judges aren't stupid. They've seen they've seen some cops, who I think they find credible, I think they believe, that some cops or police officers are less credible. If they see a consistent pattern, you have to remember that a lot time these officers are going through the same courts, if they see a consistent pattern, which they question, and you file a motion to suppress based on something that officer has done, they may go along with your clients assessment that that's exactly what happened.

So it's really fact specific and it depends on the given judge too because, again, the issue is really not a matter of law, it's a question of fact, for the trier of fact, prior to trial, and that would be the court, to determine whether there was a reasonable basis for the search or the seizure. Okay? And so they have to make fact-finding and then apply the law. And if they find, for example, that they don't find the officer's testimony to be credible then they'll suppress the evidence and then the case goes away because now there's no longer any evidence for them to present the case with because the court has said that evidence is not admissible.

Interviewer: Okay. Do a lot of people come to you with drug charges and they assume 'that's it', they're finished? There's nothing they can do? And is that the truth?

Acacia Law: A lot of them come in with the idea that they are 'finished', but since they don't know the law, that's not the truth. Again, a lot of times, they make assumptions because they don't know what the parameters are of the United States Supreme Court decisions relating to search and seizure. They don't know the various techniques that can be used in order to, not circumvent the law, but actually employ their constitutional rights, in order to ensure that justice is done. And by justice I mean getting evidence suppressed that should be.

So a lot of times, people come to me convinced that they are hopelessly guilty and there's nothing that can be done when once I hear the fact pattern, I find that there are things that, in fact, can be done to assist them which will make a difference. It just that they're not legally trained and they don't deal with this stuff everyday. They don't know these things and they're not expected to, but that's what I do for a living, so....

Interviewer: Okay. What other myths or preconceptions that comes to you that's pretty common in regards to drugs?

Acacia Law: Well, I think, one of them is this; people are concerned about a couple of things that seem important to them, one is they, most people are familiar with Prop 200 but they're not really familiar with whether or not, as a first time drug offender, they actually qualify or not. I think, I see a lot of people who come in and assume they qualify for one of these programs, but, in fact, they actually don't. And so the bottom line is that, they're going to walk into court, unprepared, not knowing that they're going to be facing the court and they're not going to be eligible for the program for any number of reasons. That means that now they're basically going to have to address the charge with all the implications of a criminal offense as opposed to a diversion program. That's one common misconception that they have. Too many people I've talked to believe they have this automatic qualification as a first time offender. That's simply not the case.

The other thing that I see is common is what we were talking about earlier which is the misapprehension that the person may not have had more than a half ounce or an ounce on them but because it was within proximity, of say, some materials that could be used for drug distribution or if they have excessive or what's considered significant quantities of dollars or currency on them because obviously most transactions in the drug trade are money, not credit cards, not checks. Those are the types of parameters that, if those are in place or there at the time, are going to ratchet up the charges. They can't believe that a half-ounce, they're going to be charged with dealing but the problem is that, that's not what the law says. The law says that if you have indicators that you are distributing the product then it doesn't matter if a half-ounce can be used for personal use. It's really a question of is there sufficient material there to make a legitimate case that the person, in fact, is dealing in this substance.

Interviewer: Right.

Acacia Law: And that is, again, a common misconception people have, they don't understand why they are charged as such with such a relatively small quantity. Again, when you look at the statuary threshold for mandatory prison, essentially, which is two pounds plus of marijuana, they think a half-ounce is really nothing, comparatively speaking, and they're right. But the quantity is not what's killing them at that point. It's the other things that were within proximity of the substance that make the difference.

Interviewer: And how often, I mean I know it depends on the case but, I mean, how often, ballpark, are you able to make a significant difference or improvement in a persons circumstances when they are facing drug charges?

Acacia Law: About 85% of the time.

Interviewer: That's quite a lot.

Acacia Law: Yes. I'd say, at least 85% because a lot times, even though they're charges, again, you can take that person with the half ounce, who's considered dealing, I can usually come up with some sort of legitimate defense to force the state to reduce the charge back down to what can be, but, again, ordinarily, unless you actually do the work on the case and force their hand, you have no leverage and they simply don't budge on their offers. They don't have reason to. If they don't have someone who's actually going to take them on or take on their police officers, with respect to what they're alleging, they have no reason to reduce the charges or dismiss them.

Again, if you force them to work by filing motions to suppress evidence, that could be dispositive of the case or terminate it early. They'll make a compromise offer because they don't want to take the chance of losing the whole case. So I'd say about 85% of the time, I'm able to make a difference, that includes, I handle many, many cases where it's major drug trafficking, both on the federal and state levels, in all kinds of substances, hundreds of pounds of marijuana, tens and dozens of ounces of cocaine, bricks of hash, I mean, I've done them all with multiple codefendants, anywhere from two to twenty and it's all based on conspiracy, usually, type theories, but bottom line is that major trafficking is an area of drug enforcement that I have a lot of clients in and it's probably in the major cases that I do, probably my best work, because the stakes are so much higher that, proportionally speaking, I'm able to save them years off their lives that they would otherwise have to spend in prison.

Interviewer: Okay.

Acacia Law: And oftentimes get them to be probation eligible.

Interviewer: Do the prosecutors treat different drugs differently? Are thry more aggressive if someone's possessing ecstasy versus marijuana or heroin versus meth?

Acacia Law: Yes. Absolutely. Again, you go into the classification of dangerous drugs like crystal meth, things of that nature and, essentially, what you've done is you've... those are considered drugs that are dangerous on the streets for a couple reasons. One is that the drugs, in and of themselves, are considered very, very harmful to people. Secondly, those drugs tend to lead to either more violent crimes or more theft crimes because people need to support their habits on these extremely addictive substances.

So if you have someone, for example, who possesses crystal methamphetamine, they are treated different then a person who might have even a fairly substantial quantity of marijuana because they view the dangerous drug as being something that is, even in a small quantity, far more serious in terms of how they view it, than the marijuana, which they know is a mild opiate. There's no real substantive evidence that it is extremely addicting. However, when it comes to heroin or cocaine or crystal meth there is reams of evidence, scientific evidence, to establish these substances create real physical and emotional and phycological addictions and lead to, oftentimes, dangerous behavior.

Interviewer: Just a quick side note, but mushrooms or acid, we haven't talked them at all and do they fall in the same category as marijuana? What are they considered under the law?

Acacia Law: Those are the hallucinogenics. Let me just put it this way - LSD is considered much more dangerous than mushrooms. The reason being is that LSD is a much more powerful hallucinogenic, typically. It's normally created chemically in a lab. Mushrooms are an organic substance. Usually the effects of it are milder. The timeframe for the person to be under the influence is smaller. It's treated a little bit differently. Now in terms of how any particular prosecutor views these drugs I would say that most of them are going to treat them seriously because they don't necessarily believe that they are addictive but they believe that they can change peoples perspective to make them, potentially, harmful to themselves or others, much more so than, obviously, marijuana.

Interviewer: I don't even know what you call them, but they're supposed to mimic real drugs but they're things like spice or bath salts that kind of stuff, there's, like, fake ecstasy that's mostly sold, like, smoke shops or some community stores.

Acacia Law: The convenience stores, too. You can even find some of those substances in convenient stores, as I've read in the newspaper investigations. But, yes, smoke shops is the most common place that you can obtain them. In terms of how they're viewed? Well, they're not illegal. So the way they're viewed is that, you don't have to really worry about them, per se, in terms of being charged with the crime of possession. Where I see people run into problems is if they, in fact, are driving and are utilizing these substances, operating motor vehicles because see the DUI laws, well, the DUI drugs, DUIs that are charged based on the person being under the influence of the drugs, doesn't require that the drug be illegal. So if you took bath salts or spice or any of the ones that you listed off, if they impair your ability to drive a motor vehicle ot motorboat to the slightest degree, then you'll be charged with a DUI drugs, even though the substance, itself, is legal.

Now if you're going down the street and you have these substances in your pocket and a police officer were to stop you for whatever reason, there's really nothing they can do about it. Unless you're exhibiting obvious signs of public intoxication, they simply are not going to be able to do anything because the substance, itself, is legal and legally purchased. And having it in your system, even though, technically, if I remember correctly, most of those substances say they are not suitable or meant for human consumption, which is how they get around FDA regulations, but the problem that you have is that, it's sort of like if you were to snort Comet at your house, it's a stupid thing to do and it probably won't get you high and it's poisonous, but it's not necessarily illegal because you're snorting a legal substance. It may not be the smartest play, but that, in fact, is still legal.

So I haven't had any cases yet where any one has, I've had cases where people who have utilized these substances have been charged with DUIs, but I haven't had anybody arrested on account of either a) possessing any of these of substances, or smoking them, or snorting them unless they're again, operating a motor vehicle or displaying signs of public intoxication. Basically, the smart play is obviously, not to be brazen about it, or public about it, or do it in front of an officer because you are just going to aggravate the hell out them and they're going to figure out some reason to charge you with something, if they can. So, smart players, even if it's legal, keep it to yourself and save yourself a lot of problems.

Interviewer: All right. And the last thing I wanted to ask you about is, I know that recently Arizona now has medical marijuana available, so how does that interact with the current marijuana laws? Does it protect people, does it not, what does it do?

Acacia Law: It does. Yeah, currently, at this time, sure, if you have a doctor who writes you out a prescription for medical marijuana and you possess a useable quantity, for personal use, or you ingest it, it is a defense and they'll normally not pursue those. Where you run into problems is you have to understand that the medical marijuana prescription card only gives you a license to purchase marijuana that only comes in these vials that are considered legal by the state of Arizona. In other words, the prescription has to be filled.

And so, from my understanding from talking to various clients, the prescription marijuana is probably more expensive than what you can buy on the street, it's not as good either. However, it is utilized and it's perfectly legitimate. They cannot prosecute you, it's right there in the statute books, but if they think you've been using marijuana that's non-prescriptive or you have possession of it then, obviously, you're going to be charged with the possession of an illegal substance. So it works, but you have to do it within the parameters of what the regulations allow and don't allow.