Friday, August 20, 2010

UD update: Talking points

Eric Schwartzreich, the attorney representing Udonis Haslem, said (today) Friday he is hopeful of the felony possession marijuana case against the Miami Heat forward being dropped as early as next week.

According to Schwartzreich, a meeting with the arresting Florida Highway Patrol trooper and state attorney's office is scheduled for Tuesday. "I think there's a good chance that they'll "no action" the case," Schwartzreich said. "There is a chance that, maybe, by next week the case is resolved."

Good: Do not plea to possession of any kind, at any level. Last resort: take it to trial.

Bad: Don't box Prosecutors/LEAs into corners by publicly predicting resolutions before they're resolved.

There are enough contestable elements in Haslem's and/or Fleming's arrest reports to challenge on one or more of the following grounds.

Talking points.

1. Search and seizure

Excerpted from Donet, McMillan & Trontz, P.A. (Miami)

The best defense to a drug possession, drug sale or drug trafficking charge is challenging how the evidence was obtained by the police. Law enforcement authorities and prosecutors build their possession, sale and trafficking cases based on evidence obtained through search and seizures. Law enforcement must comply with the 4th Amendment to the United States Constitution and well-established search and seizure laws to legally obtain evidence.

Evidence obtained by an illegal search and seizure, which violate an individual's rights is inadmissible and will be suppressed. In a nutshell, any illegally obtained evidence can not be used to convict you of the drug charge for which you were arrested. The Miami criminal defense lawyers at DMT are experts in challenging illegal searches and seizures by filing motions to suppress. If the judge grants the motion to suppress, the evidence is inadmissible against you, the prosecutor cannot proceed and we win your case.

One of the most common examples of how law enforcement authorities violate an individual's rights is obtaining an involuntary consent to search an automobile or home. Always remember, you have the right not to consent to the search of your property. Make the police get a warrant. If the police threaten you in away to get your consent, i.e. taking your child away or having you deported, the consent is not voluntary and the search is illegal. Any drugs found as a result of an illegal search are inadmissible.

2. Constructive possession.

Excerpted from Richard E. Hornsby, P.A. (Orlando)

The law of constructive possession in Florida requires the prosecutor to prove 3 distinct elements to convict:

Knowledge of the marijuana's presence;
Knowledge the substance was marijuana; and
Dominion and control over the marijuana.

Martoral v. State of FLorida: As the marijuana was not found on appellant’s person, this case is one of constructive possession. In order to establish constructive possession, the State must prove that the defendant had knowledge of the presence of the drug and the ability to exercise dominion and control over the same. “When a vehicle is jointly occupied, a defendant’s [m]ere proximity to contraband is insufficient to establish constructive possession.’” Hargrove v. State, 928 So. 2d 1254, 1256 (Fla. 2d DCA 2006) (quoting Skelton v. State, 609 So. 2d 716, 717 (Fla. 2d DCA 1992)). “Knowledge of and ability to control the contraband cannot be inferred solely from the defendant’s proximity to the contraband in a jointly-occupied vehicle; rather, the State must present independent proof of the defendant’s knowledge and ability to control the contraband.”

In the instant case, the State met its burden with respect to the knowledge element of the offense. The officers testified that appellant was in the driver’s seat of the truck and the marijuana was in a compartment in the dash in plain view. The fact that the drugs were openly within appellant’s line of sight is evidence from which appellant’s knowledge of the presence of the marijuana may be inferred.

This, then, brings us to the matter of dominion and control. Knowledge of the presence of the drugs and the ability to exercise dominion and control over the drugs are not the same. See Jean v. State, 638 So. 2d 995, 996 (Fla. 4th DCA 1994) "[I]t is conceivable that an accused might be well aware of the presence of the substance but have no ability to maintain control over it”. In the case law, the concepts of “dominion” and “control” involve more than the mere ability of the defendant to reach out and touch the item of contraband. Thus, even where drugs are found in plain view, the evidence will be insufficient to establish constructive possession unless there is evidence that the defendant exercised dominion and control over the drugs.

Because the State’s proof in this case relies on the theory of constructive, joint possession, we are obliged to reverse [conviction] since there was no independent evidence of appellant’s dominion and control over the marijuana.