Texas Effectively Does Away with “Confidential Informants”

Texas Effectively Does Away with “Confidential Informants”

The Constitutional Right to face one’s accuser has gradually faded over the years with a number of exceptions carved away by the courts. One has been the “Confidential Informant” exception. Until now all the police had to say was they had a “confidential and reliable informant that had previously supplied credible information” and they could use whatever information they claimed the informant had told them as the basis of obtaining a search warrant and never have to disclose the identity of the informant.

SB1611–The Michael Morton Act which revolutionizes criminal discovery in Texas took effect Jan. 1. The act does several things, all of them helpful to the defense of someone accused.

Perhaps the best, it makes the use of confidential informants by law enforcement almost impossible, because the state is now obliged to turn over to the defense all witness statements, recordings, etc. that contain “evidence material to any matter involved in the action . . . .” Even if the state has no intention of using a witness’ testimony at trial, the defense still has an absolute right to the witness’ statement.

For the past half century, defendants have had the right to all “exculpatory and mitigating evidence in the state’s possession.” In other words, IF in the prosecutor’s judgment, they were in possession of evidence that tended to exonerate or mitigate a defendant they were required to turn it over. With a former Texas prosecutor (in the Michael Morton case) having been recently convicted for withholding just such evidence came SB 1611. SB 1611 expands that right to now include all “material evidence,” which includes incriminating evidence. No longer are prosecutors able to pick and choose what evidence is turned over to the defense.

The heart of SB 1611, and that which is fatal to the use of “Confidential Informants” is Sec. 2 (a) which reads: ” . . . as soon as practicable after receiving a timely request from the defendant the state shall produce and permit the inspection and the electronic duplication, copying, and photography by or on behalf of the defendant, of any offense reports, any designated documents, papers, written or recorded statements of the defendant or a witness, including witness statements of law enforcement officers but not including the work product of counsel for the state in the case and their investigators and their notes or report or any designated books, accounts, letters, photographs, or objects or other tangible things not otherwise privileged that constitute or contain evidence material to any matter involved in the action and that are in the possession, custody, or control of the state or any person under contract with the state.”

Now, they must turn over everything. Ending the use of confidential informants is not the only outstanding aspect of this bill. By creating a right for defendant’s to have all “evidence material to any matter involved in the action,” it creates the opportunity for judges to suppress valuable testimony because a witness’ statement was not sent to the defense in a timely manner. It took the imprisonment of an innocent man and the jailing of an unscrupulous prosecutor to level the playing field for the criminal defendant. Of course they still must select an attorney that is diligent in making a global request and scrutinizes the information received.

By: David B. Sloane, Attorney
Public Information Officer for DFW NORML


Smell of Marijuana Alone Does Not Warrant a Police Search of a Residence

Smell of marijuana alone in many instances does not justify a police search. Many in Texas, including attorneys, just summarily conclude if the police smell marijuana they may conduct a search without a warrant. A huge distinction should be made whether the area searched by police involved exigent circumstances wherein there was no time to procure a warrant, such as a readily-movable automobile or a static location such as a home or private office. Automobiles have their own body of case law and are not the topic of this article. This article focuses primarily on private static places such as homes, offices, hotel rooms, and the like where one would have a reasonable expectation of privacy. Smell of marijuana alone outside one of these locations is not sufficient cause for the police to obtain a warrant or enter and conduct a search of the dwelling or the occupants within without a warrant. The controlling case on this in Texas is: STATE v. Leo and Ian STEELMAN decided by the Texas Court of Criminal Appeals (our highest Criminal Court) on October 23, 2002.

The facts of the case are as follows: On April 21, 1998, the Abilene Police Department received an anonymous tip that drug dealing was taking place at the residence of Ian and Leo Steelman. In response, the department dispatched three officers to the scene. Upon arrival, the officers proceeded to the front door of the residence. Before they got to the front door, however, the officers peered into the house through a crack in one of the window blinds. They observed no illegal activity. They merely saw four men sitting in a living room. The officers then proceeded to knock on the front door. Ian opened the door, stepped outside, and closed the door behind him. When Ian opened the door, the officers smelled the odor of burnt marijuana. The officers asked Ian for identification. Ian informed the officers that he would have to retrieve his identification from inside the house. He then opened the door, walked back through it, and attempted to close it behind him. At that point, one of the officers placed his foot in the doorway and prevented Ian from closing the door. The officers then burst through the doorway, handcuffed all of the occupants, including Leo, and placed them all under arrest. At that point, the officers contacted narcotics agent David Varner. Varner arrived at the scene and smelled marijuana inside the residence. After asking for, but not receiving, Steelman’s consent to search the residence, Varner left to obtain a search warrant. In his search warrant affidavit, Varner asserted that probable cause existed to believe that the occupants of the residence were in possession of marijuana. Approximately two hours after the officers initially entered the residence, Varner obtained a search warrant, searched the residence, and found marijuana.

The Steelmans filed a motion to suppress the marijuana in the Trial Court. (Asking the court to find the evidence was unlawfully obtained and could not be used.) In their motion, Steelmans argued that both the warrantless arrests and the search of the residence pursuant to the warrant were illegal under the Texas Constitution and state statutory law, namely Texas Code of Criminal Procedure article 14.01(b). They further argued that because the initial arrest of Ian and the subsequent arrest of Leo were illegal, any evidence acquired thereafter was tainted by that illegality and, therefore, should be suppressed under Texas Code of Criminal Procedure article 38.23. (Article 38.23 mandates the suppression of the fruits of an illegal arrest).

At the suppression hearing, the State argued that once a police officer smells burning marijuana and determines which house it is coming from, the officer has probable cause to arrest the occupants and search that house. The Trial Court Judge suppressed the evidence and the State appealed to the Court of Appeals.The Court of Appeals affirmed the Trial Judge’s decision and the State appeals to the Court of Criminal Appeals. The Court of Criminal Appeals found:

…the arrest of Ian took place after the officers burst into his residence. But, under state law, an officer may not enter a residence to make a warrantless arrest unless “the arrest may be lawfully made without warrant” and the person consents or there are exigent circumstances. Tex.Code Crim. Proc. art. 14.05. Before we can consider whether the officers had authority to enter the residence under Article 14.05, we must first determine whether the initial arrest of Ian could be lawfully made without a warrant. A police officer may arrest an individual without a warrant only if (1) there is probable cause with respect to that individual and (2) the arrest falls within one of the statutory exceptions. One of those exceptions, Article 14.01(b), provides that “a peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view.”…

The test for probable cause for a warrantless arrest under [article 14.01(b)] is whether at that moment the facts and circumstances within the officer’s knowledge and of which he had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the arrested person had committed or was committing an offense.

An offense is deemed to have occurred within the presence or view of an officer when any of his senses afford him an awareness of its occurrence. However, the information afforded to the officer by his senses must give the officer reason to believe that a particular suspect committed the offense.

Consider again the facts and circumstances before the officers that night. There is an unsubstantiated, anonymous tip that someone at the Steelman residence is dealing drugs. The officers walk up to the house, peer into the house through a small crack in the window blind, and, by their own admission, observe no criminal activity. They then knock on the door. Ian steps out and closes his door. They smell the odor of marijuana in the air but not on Ian himself. Given those circumstances, what did the officers have probable cause to believe? Certainly they had probable cause to believe that someone, somewhere, was or had been smoking marijuana. But, did the mere smell of marijuana in the air give the officers probable cause to believe that Ian possessed marijuana? No. This Court has recognized that odors alone do not authorize a search without a warrant. Why, then, did the officers burst into the house? What offense, if any, did they observe Ian committing? The State argues that given the anonymous tip and the odor of burned marijuana, the officers had probable cause to believe an offense, possession of marijuana, had been committed in their presence. We disagree.

First of all, a mere anonymous tip, standing alone, does not constitute probable cause. In this case, the tip, that someone at the residence was dealing drugs, did not amount to anything. The tip was never substantiated, and none of the occupants were ever charged with drug dealing.

Second, the mere odor of burning marijuana did not give the officers probable cause to believe that Ian had committed the offense of possession of marijuana in their presence. The odor of marijuana, standing alone, does not authorize a warrantless search and seizure in a home. An arresting officer must have specific knowledge to believe that the person to be arrested has committed the offense. Officers in this case had no idea who was smoking or possessing marijuana, and they certainly had no particular reason to believe that Ian was smoking or possessing marijuana.

Given the evidence before it, the trial court in the instant case could have reasonably concluded that the arrest of Ian was not lawfully made without a warrant because the arresting officers did not have probable cause to believe that Ian had committed an offense in their presence. Since the officers had no authority to make a warrantless arrest under article 14.01(b), they had no authority (under article 14.05) to enter the residence without a warrant and conduct a search, and any evidence seized as a result of those illegalities was tainted and subject to suppression. Therefore, the Court of Appeals did not err in upholding the trial court’s decision to grant the motion to suppress. We affirm the judgment of the Court of Appeals.” (Citations omitted)

Again, this article deals with smell alone at a static private location. What the occupant of a dwelling says or does in this initial encounter can often yield “consent” or add to police probable cause to conduct a warrantless search. This is why the police will try to threaten or coerce so-called consent or try and make other observations to bolster their probable cause concerning those occupants that were stupid enough to open their door for knocking police in the first place.

David Sloane – Attorney
Public Information Officer

Drug Prosecutions in Lewisville in Texas in Jeopardy

Drug and other prosecutions arising in Lewisville, Texas in jeopardy due to improper handling/tampering of evidence involving drugs and biological evidence

LEWISVILLE, TEXAS- As required by the Rules of Professional Responsibility, the Denton County Criminal District Attorney’s Office has notified attorneys with pending criminal cases involving the Lewisville Police Department of major problems concerning their property and evidence section. Lewisville Police Department Property and Evidence Technicians Bill Hines and Nick Rose have resigned their positions and are now the subject of an ongoing criminal investigation. These problems have huge ramifications for pending criminal prosecutions involving the admissibility of physical evidence; and could theoretically be used as the basis to attack prior convictions. Persons with pending criminal charges of this nature from Lewisville should immediately alert their attorneys.

The law requires the prosecution to establish “Chain of Custody” for any evidence to be used at trial. Simply put, this requires the state to establish every individual that has handled the evidence and that it has been securely stored not in any way been tampered with by anyone. On November 21, 2012 Lt. Dan Rochelle of the Lewisville Police Department testified in a pretrial hearing as to some of the results and findings of their investigation:

1. Currency is missing: The ensuing criminal investigation has revealed the above-named technicians have taken cash from the property room for personal use. He identified “four criminal cases with money missing from the property and evidence room.” None of these cases have criminal prosecutions pending which indicates the currency stolen was seized as part of drug asset forfeitures which does not require actual prosecutions for the conduct alleged for the money to be seized. Texas asset forfeiture statutes require currency seized that is not actual evidence, such a marked bills used in an undercover investigation, to be promptly deposited in a bank account established for that purpose.

2. Property is Missing: Item(s) listed as “Found or Abandoned” are missing. A laptop computer was given as a specific example wherein the computer is missing, the records reflect the computer was “destroyed.” Yet the proper procedure to dispose of unclaimed property in police property rooms requires such items to be sold at public auction.

3. Controlled Substances: This investigation has identified at least 176 drug cases where the evidence was stored in a police parking garage. This evidence was exposed to the elements and some of the items were found “in an open condition or improperly sealed.” Perhaps there are some stoned little mice running around Lewisville?

4. Biological Evidence: Biological samples were found to be stored unrefrigerated in a hallway. Some were leaking (blood vials over 10 years old) risking cross-contamination of evidence in other cases. Just imagine the nightmare for someone arrested for DWI to have their blood drip or seep onto the panties removed from a child in some unsolved rape or murder investigation. Or worse yet, someone that actually did something like this walking free because the blood of another man was found on the clothing. There is no indication this has occurred but huge concerns should exist that it could have.

5. Documentation: “Property sheets” establishing Chain of Custody in some criminal cases “were not properly maintained” and in some cases were not maintained at all.

The Denton County District Attorney’s office has stated they will not sponsor either of these former technicians as a witness in any case. They have been deemed “not credible” by the Lewisville Police Department. Therefore, any evidence they maintained in any investigation should likewise be deemed “not credible.” I would suggest the accountability should not end with these two wayward evidence technicians. Given the inadequate procedures and facilities these problems appear much more systemic an obvious within the leadership of Lewisville Police Department and/or perhaps the even the City leadership if the Police sought adequate funding and did not receive it. Were it up to me, more heads would roll!

David Sloane – Attorney
Public Information Officer

Drugged Driving

Drugged Driving: A New Arrow in the Government’s Quiver Against Cannabis Consumers

Smoked or ingested Cannabis lately? States are starting to charge those with ANY detectable amounts of cannabinoids in their system with DWI/DUI. As we all know, these detectable amounts remain up to 30 days in your system.

Ten states (Arizona, Delaware, Georgia, Indiana, Illinois, Iowa, Michigan, Rhode Island, Utah, and Wisconsin) have enacted legislation imposing zero tolerant per se thresholds for those that operate a motor vehicle with detectable levels of cannabinoids in blood. Several of these states also impose Zero Tolerance per se policies for those motorists who operate a vehicle with any detectable levels of inert carboxy THC in their urine.

Georgia’s per law was struck down by the court: Love v.State, 517 S.E.2d 53 (1999). Three states have imposed per se DUI limits for cannabinoids or their metabolites: Nevada, Ohio, and Pennsylvania. The per se limits in these states are as follows: Nevada: 2ng/ml THC in blood or 15 ng/ml of carboxy THC in blood or urine; Ohio: 2ng/ml THC in blood or 35 ng/ml of carboxy THC in blood or urine; Pennsylvania: 1ng/ml THC in blood or 1 ng/ml carboxy THC in blood or urine. (Note: Pennsylvania regulators initially set this limit at 5ng/ml, but later lowered it.)

In all of these cases, the present thresholds are based on LLQs (lowest levels of quantitation) which means lawmakers set the thresholds based on the sensitivity of the drug testing technology. These are not evidence based thresholds.

At least two states Minnesota and Virginia impose per se or Zero Tolerance per se laws for illicit drugs but exclude cannabis from the statute.

NORML has state-by-state drugged driving summaries here: http://norml.org/legal/drugged-driving

Herb’s the word.

David Sloane
PIO & Attorney @ DFW NORML

The Case of Bosko the Police Super-Dog

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!

College Student Opts to Let Jury Decide

DENTON, TEXAS – A Denton college student has elected to take his chances with a jury following his arrest for Possession of Marijuana under 2-ounces. Possession of Marijuana in Texas is a Class B-misdemeanor punishable by up to 6 months in jail and up to a $2,000.00 fine. On July 13, 2012, Zachariah Walker, 25, was stopped for an alleged traffic violation by the University of North Texas Police Department. During a subsequent search of his vehicle, officers allegedly found approximately 2 grams of Marijuana. He was immediately arrested and booked into the Denton County Jail.

He was later released after posting a $1,000.00 bond.

Zachariah Walker facing Texas jail term for possessing 2-grams of Marijuana

On October 10, 2012, the State made a plea-bargain offer. He could spend 180 days in jail, probated for 18 months, and pay a $600.00 fine; or he could spend 70 days in jail without a probationary term or fine. Walker elected to reject the offer. Walker is a member of The University of North Texas student chapter of the National Organization for Reform of Marijuana Laws (UNT-NORML.) He has rejected any offers of probation and says “if anybody is going to send me to jail for possession of 2 grams of Marijuana, it is going to be a jury.”

According to his lawyer, Fort Worth Attorney David Sloane, this is an ideal case to place in front of a Texas jury to call attention to the absurdity of Texas Marijuana statutes. “The state’s plea bargain offer was harsher in Zac’s case than you would normally see because he has a prior 2007 conviction for Possession of Marijuana,” Sloane said. “In that case he was initially placed on deferred adjudication community supervision and failed a court ordered drug test four months into it, testing positive for THC. The court adjudicated his guilt in that instance and sentenced him to 60 days in jail. He was forced then to drop out of his classes.”

Walker will be facing the same judge in this case. Sloane is a Member of NORML’s National Legislative Committee and on the local DFW NORML Board of Directors. Speaking publicly about this case with Walker’s permission, Sloane said “This guy has had enough. He has a ‘been-there-done-that’ attitude about probation. And even though a jury could send him to jail for up to 180 days, which Zac is prepared to do if it comes down to it, we don’t believe a reasonable and prudent jury would even remotely consider anything close to the 70 days the State has offered as his punishment for possessing 2 grams of marijuana.”

According to Sloane, “they might even find him not guilty. Other than his occasional cannabis use this guy has never been accused of doing anything wrong or arguably illegal. He works, goes to school, and plays in a band on the weekends. He’s never hurt anyone. He’s a genuinely nice guy who’s had chaos heaped upon his life by a government that takes exception to his exercising his liberty to consume cannabis. Zac is willing to go down if he must, but it is going to be after a fight. He feels his back is against the wall on this and the State of Texas is leaving him with no choice but to fight.”

Sloane said he has staffed this case with other NORML attorneys in Texas and they have agreed to assist in Zac’s trial pro bono. Attorney Jamie Spencer of Austin, Texas and Jamie Balagia of San Antonio, Texas have agreed to travel to Denton and help try this case. While there is injustice concerning marijuana laws state-wide, Sloane says these attorneys took a special interest in Zac’s case because he is completely free of instances of extraneous bad conduct. This will truly be an opportunity to tests the attitudes of Texas jury where it comes only to possession of small quantities of marijuana.

If the outcome is what we hope for and expect, we hope it will send a message to prosecutors everywhere to rethink their positions about jail terms for those accused of simple possession. Sloane said, “to my knowledge, having someone charged with possession of 2 grams of marijuana come into a jury trial with three of the state’s top marijuana lawyers will be unprecedented.” With NORML involved, the state is going to have their work cut out for them. The case is expected to go to trial in early 2013 in Denton County Criminal Court Number 2.

Introducing Hydro the Norml Boat

DFW Norml & the Law Offices of David Sloane proudly present: Hydro – The Original Norml Boat, coming to a lake near you. More information about the boat and Team Norml Wakeboarding coming very soon.

In the meantime, stay in touch with Hydro by following her on Facebook here: https://www.facebook.com/hydro.the.norml.boat

140 hp with top speed of 43 mph under ideal conditions. It was built by Beretta Manufacturing of Conway, Arkansas which went Bankrupt in the early 90s. To my knowledge this is the only boat of this particular make and model left in existence. Let’s refer to it to as a “27 year-old classic” that was in need of full restoration due to years of neglect. The engine was sound with relatively few hours, however, the boat had been allowed to sit for years uncovered and collecting water. The interior was trashed and all the wooden floors and floor supports were rotten. The previous owner had recently purchased it in this condition with the intentions of doing so when he ran afoul of the law which radically changed his legal and financial situation such that he would no longer be able to do so, and made the boat arguably subject to asset forfeiture.

He was familiar with Norml’ss Truth Cars and with the promise the boat would be fully restored and placed into service he signed the title over on the spot and I gathered the boat that afternoon. Another individual serving 41-months in Federal Prison for growing 14 plants made his shop and equipment (which I’d rescued from DEA asset forfeiture in 2011) available and his wife and 17 year-old son were willing and eager to help with the restoration. The boat was taken there, stripped down to the hull, hoisted from the trailer. and the full restoration began.

The trailer which was pitted and rusted was sand-blasted, repainted, rewired and all lighting replaced with modern Light Emitting Diodes. The hull was refinished and recoated with, ironically, the same white coating developed for use on United States Coast Guard vessels. The floor supports and decking were all replaced with rot proof composite materials and marine grade plywood then sealed under fiberglass and resin to make them water-tight. The boat’s wiring was modernized and converted to a two-battery system where one battery exist primarily to start the boat, and the other to run instruments and accessories. All the navigation lights were replaced with Light Emitting Diodes. The nearly worthless flimsy, chrome, rub-rails were replaced with modern, heavy, rubber rub-rails. New marine carpeting was installed and a new interior and trim was fabricated and installed.

For a couple of weeks my living room was converted into a make-shift trim shop. Anywhere there is padding, neoprene (the same material used to make wet-suits) was used instead of foam rubber which degrades. Obtrusive access doors and hatches were installed in areas of the interior that once were wasted space now can be used to keep personal belongings concealed, safe, and dry.

The custom wake-board tower was fabricated of billet aluminum by a company in Oklahoma and the light-bar and speakers were purchased from a company in California. Fed Ex or UPS deliveries were almost a daily occurrence and we developed an impromptu fan-base among the delivery drivers as they watched the boat’s progress. The boat was finished off with the latest technology in GPS Chart Plotter Sonar (where the driver can view what is going on beneath the boat) and a premium sound system with amplifiers, Yamaha speakers, and USB ports for Pandora.

The restoration took two months. I would work on it every evening after work until dark and from dawn-till-dusk on weekends. I would estimate I spent around 500 hours and over four-thousand dollars in the restoration but our chapter has a boat now that is better than the day it left the factory and one of a kind.

MS Patient Gets Reduced Sentence for Possession of Marijuana

DECATUR, TX. — A Lubbock man received a Deferred Adjudication term of one day today in Wise County, Texas. The Bridgeport Police Department arrested Adam Federspiel, 34, on October 23, 2011 during a routine traffic stop, and booked him into the Wise County jail for possessing less than 2 ounces of marijuana. He was released the following day after posting a $2,500 bond. Federspiel’s parents reside in Bridgeport, and he was in the area visiting them at the time of his arrest.

Possession of marijuana under two ounces in Texas is a Class B Misdemeanor, punishable by up to six months in jail, and a fine of up to $2,000.00. Texas law also requires a six month driver’s license suspension for anyone convicted of a drug offense.

Federspiel was diagnosed with multiple sclerosis in 2009, and smokes cannabis daily to relieve the spasticity and tremors associated with his disease. According to a 2007 UK study, 189 multiple sclerosis patients in cannabis-based drug trials reported that cannabis helped relieve spasticity. The National Multiple Sclerosis Society also recommends further studies of the benefit of cannabis for multiple sclerosis patients.

17 states and the District of Columbia recognize the medical benefits of cannabis, and have passed laws allowing the medical use of marijuana. However, Texas has not. Following his release from jail, Federspiel was referred to Fort Worth attorney David Sloane by the national headquarters of the National Organization for the Reform of Marijuana Laws. Sloane is a member of the NORML National Legislative Committee and serves on the local DFW NORML Board of Directors. After hearing about Federspiel’s plight, Sloane agreed to defend him at a greatly reduced fee.

Speaking with permission of his client, Sloane told DFW NORML that cases involving medical cannabis patients present a unique set of legal, ethical, and practical challenges for defense attorneys. According to Sloane, “as an attorney, you can never encourage, aid, or assist a client in violating the law. When you have someone with an obvious, debilitating and painful disease right in front of you that tells you they find relief for their symptoms with the use of cannabis, what do you do? Tell them they cannot consume a pure and natural substance that makes them feel better because their government doesn’t like it?”

“There are also long term practical considerations in fashioning a remedy for these patients,” Sloane said, “because they certainly do not want to go to jail, and drug testing makes them a very poor candidate for any form of probation if they intend to continue to seek the relief they have found with cannabis. You are setting your client up for failure if you do that. So really, the only thing you can do when you have a legitimate patient is hope that you can educate and find compassion with the prosecutors and judges. If not, you need to be prepared to throw that chin down and come-out-swinging in front of a jury with the necessity defense.”

Texas penal law provides for a justification of necessity for all criminal law violations “if the actor reasonably believes the conduct is immediately necessary to avoid imminent harm” and “the desirability and urgency of avoiding the harm clearly outweighs… the harm sought to be prevented by the law proscribing the conduct.”

In this case, the prosecution was placed on notice that Federspiel intended to raise a necessity defense if it was required for a successful case. After Federspiel provided requested proof of his disease, the prosecution agreed to a negotiated settlement. Federspiel was allowed to pay a $100 and to defer his finding of guilt for a period of one day pro forma, meaning it was not necessary for him to ever report to probation or have any other terms or conditions of probation. The judgment in this case states: “The court finds that, in this cause, it is in the best interest of society and Defendant to defer proceedings without entering an adjudication of guilt and to place the defendant on community supervision.”

“If Adam stays out of trouble until midnight, the case against him will be dismissed,” Sloane said. “With no conviction, his driver’s license is not in jeopardy. And once he has successfully completed his deferred adjudication, tomorrow, he may lawfully ask the courts to seal the record of his arrest.” Sloane said he considers this a high water-mark for cannabis patients in Texas.

“While this is not binding case law, it does show that at least some prosecutors are educating themselves on the topic of medical cannabis and appreciating the stark realities that may be if these cases reach a jury like the one in Amarillo a few years back.,” Sloane said. He praised the prosecutors for working with him to fashion a remedy that both recognized and addressed the prohibitive statute, as well as the defense of necessity. “I hope other prosecutors and judges take heed and recognize what the Texas Legislature has thus far failed to do.”

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 Texas, possession of hash is classified as a felony of varying degrees of severity depending on how much is possessed by aggregate weight.

In the overwhelming majority of states, simple possession for small amounts of hash derived naturally from the marijuana plant is treated exactly the same as possession of marijuana, punishable as a misdemeanor. Even Oklahoma, known for its draconian drug laws, merely treats hash the same way as it treats marijuana. It comes as no surprise to me, then, 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.

I really don’t know the legal definition of “hash” as our Texas criminal statutes have attempted to define it. Indeed, the definitions tend to get squishy in the criminal laws in all the states trying to distinguish components derived from only the marijuana plant. 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 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 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 attempted 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…” 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 that the statute itself was unconstitutionally vague. It is important to note that in 1974 the court pointed to Schedule-1 for further clarification. At that time it contained “Tetrahydrocannabinols” with an identical definition except the “other than marijuana” phrase 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 appear 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 Schedule-1 Distinction that 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

Fake Pot Controversy Continues in North Texas

The Fort Worth Weekly referenced our organization in a recent article entitled “Breathing Down Their Necks,” which discussed recent law enforcement activities in Bedford, Texas involving “fake pot.” The article centered around an individual who works at a smoke shop recently targeted for selling synthetic marijuana, and who associates himself with NORML. While we appreciate the right of our supporters to express themselves, we would like to make it clear we are a marijuana law reform group only. Views expressed by individuals claiming membership do not necessarily reflect those of NORML.

While a very large percentage of our membership view our government’s attempts to address social and medical issues of drug abuse within the populous with our criminal laws as one of the biggest failed public policies ever, we do not condone or endorse the use (or abuse) of any synthetic man-made substances made to mimic or appear to be marijuana, a natural and safe substance that humans have been consuming without any serious adverse effects for well over six-thousand years.

Our efforts are focused solely on the re-legalization of cannabis. Cannabis was first outlawed to protect the timber, oil and textile industries against market encroachment by hemp; it is now being pursued with renewed vigor to protect the pharmaceutical industries suffering losses in sales of their far less effective products marketed in states already recognizing the medical uses for cannabis.

Whenever you have prohibition, you create an environment for willing criminals and opportunists to come in and profit by operating under the radar of governmental regulation and taxation. We do not know this “fake pot” to be safe and frankly our concerns are to the contrary. This is particularly so with the recent cat-and-mouse games being played between the DEA and the producers of these compounds attempting to stay ahead of the law to create new not-yet-illegal compounds geared to create a high without any concern whatsoever for quality control or consumer safety. As such we do not want our name associated with synthetic marijuana in any way.

We would like to make the record clear that we do not stand in support of anyone attempting to create and market any knock-off products which in no way chemically resemble the components found in cannabis, a product proven to be safe and effective for human consumption.