2.08.2007

Green On "Search And Seizure"

Edit: Actual courtroom Someone asked me about my lost Motion to Suppress hearing, so here's a rundown. (And let me know if this crap is boring or entertaining.) I have a client charged with possession of marijuana less than two ounces - a Class B misdemeanor. I filed a Motion to Suppress in the county court at law here in Decatur (where the case is pending) because I thought there was a chance that he was illegally detained. Here is the basic law: The cops cannot violate the constitution or a statute when they detain someone. If they do so, any evidence that is found as a result of the illegal detention cannot be used by the prosecutor at his trial. This is known as the "exclusionary rule" (which the Supreme Court has indicated may not be long for this world.) When, for example, the evidence that is suppressed is, say, marijuana, it makes it impossible for the State to prosecute someone for, say, marijuana possession. So we have a hearing. The players are me, County Attorney Greg Lowery representing the State, and Judge Melton Cude presiding. (Amberly is the court reporter who will simply make a face at me every time I say something crazy.) So the following facts came out in the public hearing. My client is sitting in his car in the parking lot of Red's in Bridgeport. For the uninitiated, Red's is one of the few places you can find a beer in a bar in Bridgeport. It is also a place that the cops constantly patrol because they want to jack with folks who visit Red's. (Sorry, I digressed.) The cops, in this case, drive by Red's parking lot and see my client sitting in his car. Horror of horrors, my client looks down and away from the officers' stare. This, one of the cops will testify, causes him to wonder if my client might be sick or otherwise in distress. (Kill me.) So they do a U-turn and pull into the parking lot to "check on him." (I did not realize the cops in Bridgeport were so sensitive. ) My client, as soon as the cops drive by, moves his car a few feet into a parking slot. He gets out of his car and then begins walking normally (not hurriedly) to the side door of Red's. The cops pull up. One of them jumps out right behind my client's bumper and yells, "Come here"at my client who is probably 15 feet away. My client stops and (allegedly) a small amount of marijuana was later found on him. Here is the issue: The cops have absolutely no right to detain a citizen simply because he looks down when the cops look at him. Nor do they have the right to stop someone who then gets out of his car and heads towards a bar. If those are all the facts, then I'm going to win the Motion to Suppress. It is the "my client was jacked with by The Man" defense. But wait. Apparently there is more. The cop testifies that as soon as he got out of the car he immediately smelled the "strong odor"of marijuana and one second later he tells my client to "come here." I asked him if he intended to stop my client even had he not smelled the marijuana. His answer was "yes, just to make sure he was OK." So this is what it boils down to: If the facts are (1) cop gets out of the car, (2) yells at my client to "come here", and (3) then smells marijuana, we have an illegal detention. He stopped my client for no valid reason and the fact that he smelled marijuana after the fact won't save the illegal detention. But if the facts are (1) cop gets out of car, (2) he smells marijuana, and (3) he then tells my client to "come here" THEN we have a valid detention because the cop has a "reasonable suspicion" that my client might be associated with the marijuana smell. But, as stated above, the cop says that he smelled the odor of marijuana before he said "come here." So although he was in the act of making an illegal detention, his testimony of the odor of alcohol makes the detention legal. The judge overruled my Motion and ruled that the State could use the marijuana. What else is he supposed to do? Hey, these facts are fishy. Something, pardon the pun, doesn't smell right. But the only way I win that Motion would be for the judge to essentially say, "I don't believe that crap about the odor of marijuana." That, dear reader, is never going to happen. Do I believe the cop? I'm skeptical but he was pretty smooth and seemed earnest. Another fear most people in my position would worry about is that the cop was coached by the prosecutor before the hearing. You know, a little pre-gram prep of, "Listen, cop, if you were to have smelled marijuana before you said anything to the defendant, then you're home free." Trust me, prosecutors do this all the time. But, trust me again, the prosecutor in this case, Greg Lowery, wouldn't do this. There have been times when he has met with a cop behind closed doors before a Motion to Suppress and then walked out and said, "After talking to the cop, I agree with your motion." So, I'm stuck with the judge's ruling. There is no reason to appeal it because the appellate court would say Judge Cude has every right to believe the cop. The only other option is having a trial where, amazingly, a jury could be asked, in addition to my client's guilt or innocence, whether they believe there was an illegal detention. That, in Wise County, is one dicey proposition. But probably the most disturbing thing is that all this time and energy is wasted on freakin' marijuana possession. [As for comments, don't bad mouth Judge Cude or Greg Lowery, I'm not an idiot - I'm not going to post them. Everything else is probably fair game.]

55 comments:

Mary Mack said...

I'm sure this cop was informed of "needing" to smell the marijuana before detaining the man. But then again, I'm giving a Bridgeport cop waaay too much credit. Greg may not have given him "pre-game prep," but I bet he was prepped by a Seargent, etc.

Sorry for your loss, Barry. But take it to trial, and I bet you win.

Anonymous said...

Mary Mack has it right, except for the "I bet you win" part. I seriously doubt a Wise County jury, knowing your client was in fact IN possession, is going grasp at what they'd view as a "technicality" to let him off. Take a plea.

Anonymous said...

Lots of time and money wasted on marijuana...Don't we have more important things to do?

Anonymous said...

does less than 2 ounces of marijuana produce a "strong odor"? One that can be smelled, outdoors, from several feet away?

that just does not seem credible to me.

Anonymous said...

Maybe you should start having a "My Case of the Week" posting.

Many years ago I worked at a Blue Cross/Blue shield office. The claims clerks used to have a weekly contest for who had the strangest claim come in that week. On Friday afternoons, the "best of the best" would be selected by the group during their afternoon break.

The winners almost always fell in to one of these two categories:

1) The removal of an object from an orifice most people would consider an "exit" location, not an "entrance" location. The strangest object was usually the winner.

2) Some number of sutures to repair cuts/gashes caused by human teeth on a variety of human body parts. The body part getting sutured was usually the decider on these.

Anonymous said...

Which way was the wind blowing at the time relative to the location of the policeman and your client??? Also, how windy was it at the time???

Speaking of windy, I wonder if your client had broke wind as he left his vehicle, if the policeman would have noticed that odor, and wondered if he was okay...

Kingfish said...

This is the most interesting story I have ever read on LL. Two comments. First, if what you state is true about the County Attorney, that is high praise for a prosecutor. Bravo Greg! Second, I learned that if you are going to go to Red's, you should wear a neck brace to keep your head up.

For you avid Red's happy hour goers, I have taken the liberty of providing a link so you can purchase a neck brace.

http://www.amazon.com/gp/browse/?node=13106361&lposid=u7-11242444-1,C,1699

Anonymous said...

The cop didnt smell marijuana, he smelled the lipton tea bag that your client lit in the car to kill time. The tea bag produced a similar odor.

Anonymous said...

All Pot-heads reek of cannibus and I bet the cop knew he was a Pot-head.

Anonymous said...

Silly Bridgeport cops can't tell a skunk in the trunk from Mary Jane.

They do have more important things to do 11:25AM, they are just too stupid to know what.

I'm just waiting for another couple of years, after Shrub is gone, and the demos have their way with this silly "War on Drugs" that is not working any better than the war in Iraq.

Anonymous said...

Barry, why do you hate cops so much?

Dewey Cheatham & Howe said...

To 11:30am, I doubt the cops smelled the 2 ounces. They probably smelled the 10 ounces Barry's client had recently smoked.

Anonymous said...

I blame the Democrats.

Anonymous said...

Where's Stephen Hale when you need him?

Anonymous said...

I wonder if you could test the cop's olfactory acuity in court. I have challenged many beer “experts’” tasting skills by identifying their favorite beer - blindfolded. By far, most think they can but can't identify their beer. Could this cop identify marijuana from various other odors from that distance in court? If their identification doesn't fit, they can't convict.

Anonymous said...

very interesting Barry...i would enjoy more like this...and my opinion on the matter...high school's over...put down the bong and get a job...GUILTY!

Anonymous said...

We're back on the "marijuana doesn't hurt anybody" bandwagon. It's a float in the same parade as gambling, porn, beer doesn't hurt anybody. From someone who knows, I would love to find out if being a pothead impacts a person's ability to get, hold, advance or achieve their potential employment and therefore contribute to our economy so that the load isn't on those who can. Are there any marijuana smokers that need it so bad that they steal to fund it? Any potheads being helped or supported or enabled by social programs, in other words the taxpayers? Any of them have kids that are going without what they should have because mom, dad or both are too busy scoring weed? Any marijuana smokers hanging with a wrong crowd and being exposed to nastier stuff? Anybody smoking weed and having a "good trip" going to be behind the wheel while doing so? Having hallucinations of pretty pink flowers drifting across the highway when in fact it's a couple of kids in a crosswalk? Yet, marijauna isn't hurting anybody.

Anonymous said...

"Having hallucinations of pretty pink flowers drifting across the highway when in fact it's a couple of kids in a crosswalk?" Ha! Ha!

So 12:49 - you apparently believe all that bullshiate you read and hear on the neocon TV, radio shows, or church programs. Poor ignorant you. Meth? Yes. Pot? Nope.

Anonymous said...

Do you chase ambulances in the same brand of sneakers that you run marathons?

Anonymous said...

This charge may not ruin his life, but it is sad that something like pot can still cost you all this money in court fees and such. LEGALIZE! LEGALIZE! I'm with you Barry, it is sad that all this time and energy is wasted over a pot possession. Boo the Man!!!!

Anonymous said...

12:49
Dude, I'm hallucinating that you are old,fat and retarded.

Anonymous said...

It's simply amazing that they (cops) have such power. Being a fellow who contributes to the 4:20 and has a nephew who is a cop in the metro mess, he told me once that all cops can do as they please and they will make up there own story or as you stated earlier no disrespect to Mr. Lowrey, be coached. Bridgeport is on the fast track to competeing w/ RAB. So wrong, after reading this I have a new respect for what you do."The right to be left alone" Keep up the good work.

Anonymous said...

Barry, you should switch professions.

Run for Commissioner Precinct four.

SERIOUSLY!!

Anonymous said...

Rush Limbaugh would have been treated the same way by the same cops if he had been caught at Red's handed with his bottle of oxycontin or maybe his "wrong name on bottle" viagra.

Anonymous said...

In Seattle, they have a police policy that puts marijuana at a very low priority level. No marijuana arrests unless flagrant or they have no other "real" police work to do. Intelligent.

Anonymous said...

You cop haters make me sick. You hear of a couple of bad cops and you think they are all bad. Both my parents are cops and they are both very good people. They worked very hard my whole life protecting people that they didn't even know. My father was almost killed in a shootout with a dope head, but he didn't quit. He just kept on going, protecting and serving sorry individuals such as yourselves. You will find that, in every profession there are people who will break the law, commit immoral acts and take their authority too far (i.e. President Clinton) Cops are human just like you and me, they make mistakes and sometimes, yes they are bad apples. You find me one profession that has never had a person doing something bad and getting caught and I will take back everything I have just said. Barry was a prosecutor for eight years and he has seen the worst in people and in professionals, and now he is bitter against the judicial system. He is using his past knowledge and bitterness to manipulate the system into letting go individuals who have no respect for a civilized society and it's laws. I feel sorry for you Barry. I do still think most of your posts are pretty funny though.

Anonymous said...

Hey 2:46, you forgot criminal defense lawyers--they are the one completely ethical profession. Only prosecutors coach witnesses to lie. Defense lawyers are only interested in protecting the abused rights of 'alleged' perpetrators and seeing that justice is served and that the Bill of Rights is followed (cue national anthem here).

moma247 said...

I agree with Mary Mack. He was probably told the order in which things needed to happen to make the charge stick. Judge Cude did what he had to in staying with what the law says, however, I wonder if he was thinking that it was a BS story. Was the odor coming from the car or your client. If it was your client, how can an odor possibly be identified, in the outdoors, at that distance?

HHL said...

very interesting Barry. You should write a hornbook. You could be right up there with Prosser and Keeton or Calamari and Perillo.

Of course, your facts and analysis of "Red's Patron v. County of Wise" is already destined for first year Crim Law casebooks at top tier law schools all over the country.

goober said...

Hey BG:

I for one hope you continue to post legal issue analysis. Anyone that has been on both sides of the street in criminal court certainly has my ear when you want to discuss the finer points of criminal law. Keep up the good work and "let'er rip".

Anonymous said...

1:01, if it does nothing, why smoke it? 1:48, nope. Mid 40s, fit and very affluent. Could BYA between bites of a sandwich. Also a volunteer firefighter and on four occassions, twice last year alone, once in 02 and once in the 90s, have responded to the scene of fatal accidents in which the responsible party was stoned and crossed over into traffic. All at night, and three of the four times, the pothead was on his way to grab some fast food before closing time. No dead stoners (lived to kill again), three dead adults, two dead children, three injured adults, three injured kids, and one person that wasn't hurt at all. One entire family killed, mother and one child burned while trapped. But marijuana doesn't hurt anybody....

HHL said...

3:36: no one is advocating making it legal to operate a vehicle while stoned.

Anonymous said...

Wait til Rhome gets the new drug dog. This site will be nothing but pot and minor in possession case talk.

Kingfish said...

I bet the drug dog will be a German Shepherd named Adolph.

Gleemonex said...

3:46: I guarantee you that alcohol was the primary intoxicant in the little vignettes you used for illustration. Some of the drunks may ALSO have been smoking up, but I would bet you one hundred thousand dollars, cash American, that the booze caused the crashes. The difference is physiological, not academic. Maybe you're one of the ten people in this country who actually never did burn one -- and bravo for clean livin! -- but everyone who HAS ever smoked (all of the rest of us) knows that's not how it works.

Anonymous said...

Dont yall get it. Barry just tainted the jury pool by giving his opinion (which would not be allowed in the courtroom) to all of those that might have been called for the trial. Pretty good thinking Barry, I hope that Judge Cude sees this and you are repremanded for your use of your blog as a pedistal for what you believe to be wrong.

Anonymous said...

Rhome's gettin a great deal....a cop, a dog and a car.

Anonymous said...

Yeah 3:46, affluent person. Did you see the toxicology reports?

Anonymous said...

Here's a little something about marijuana for those that cry BS about it having any impact.http://www.hattiesburgamerican.com/apps/pbcs.dll/article?AID=/20070208/NEWS01/70208002

Anonymous said...

You forgot to mention the cocaine, and the fact that the guy was a certified nut-case to begin with, 5:37PM.

xocheeta said...

Barry,

You said, ".... So although he was in the act of making an illegal detention, his testimony of the odor of alcohol makes the detention legal."

I thought it was the odor of marijuana. You confuse me.

Hey, I have a question about the Rhome camera/radar trap. It has been on East 114 all week. If somebody placed a towel over the camera, would it break any law? I am sooo tempted.

Anonymous said...

For anybody that doesn't know, and that could include Barry, the judge, and the DA - pot has a very distinctive smell whether it is from the smoke or from the person who has been smoking it. You don't have to be that close to recognize it if you are downwind. (Experience speaking here, I was a product of the 70s.) Anybody in law enforcement would recognize the smell after exposure to perps who have been partaking.
I would love to see marijuana decriminalized. It would free up lots of jail space for violent criminals. However, the consumption of alcohol is not a criminal act, but how many drunks are there on the road right now? The fact is that pot, even in moderate amounts, affect reaction times, and distort perceptions of time and distance. People who smoke pot are going to get behind the wheel of an auto, the same way drunks do, with the same results.

Anonymous said...

What some of you readers have caught on to is BSG is not a “cop hater” or trying to legalize all that is immoral, but that we all play on the same field and rules which, from my experience, he did this from both sides of the courtroom. If the cops catch the bad guys in bounds, holding the ball, they can tackle him. If the bad guy fumbles the ball or steps out of bounds, they don’t. If the bad guy truly is a bad guy today, he will be one tomorrow and the opportunity to catch him will be the same.

There is more case law on drug offenses then any other crimes committed, and the reason is sometimes in an effort to find the affirmative link, or to show that someone “possessed” something; you find the crime then try to figure how you got there. Not the same with lets say murder or theft where sometimes the circumstances are a little more clear.

Cops (and bad guys) need to remember if you can win by the rules, you better be prepared to loose by them.

atvtrlrdr said...

I like the case discussion. Could it be true that he just tainted the jury pool? Give us an edit Barry and tell us what you think.

Your silence will be equilivant to "OH CRAP, what was I thinking?"

Pot won't make you see thing. It will slow your reaction times. I don't advocate driving under the influence of either, but I guarantee that I would be a better driver half stoned than I would be half drunk.

Anonymous said...

No wonder your gay barry

Anonymous said...

For those of you that don't think pot affects you, why do it? If your life is so bad that you have to do drugs to escape it, why not do something to change it? Smoking pot only puts a bandaid on the problem. When the high is gone, you still have the same problems to deal with as before.

Anonymous said...

anon at 9:59pm....and your behavioral psychology degree is from where?

Anonymous said...

11:12 Common sense is all it takes to know that pot does not fix a person's problems. I have a college degree from TWU in a related field.

Anonymous said...

Burning a lipton tea bag has a marijuana like smell. Its a great prank!

Anonymous said...

TWU? What's a degree from that place worth? A training job at Wendy's?

As for marijuana giving you a temporary high, was so wrong with that? If you like roller-coaster rides for the thrill does that mean you will want to stay on it forever? Or will you be depressed with life when you get off the ride? I don't use the stuff myself but all you "experts" in its effects hear too much propaganda and have little scientific information.

Anonymous said...

Hey 2:46 we are happy for what your parents do but don't go all crazy and run across the street and jump in the RAB Pool! No one say's they hate cops, they just need to chill out and not be such Nazi's Relax.

Anonymous said...

This Bridgeport cop is actually one of the best in Wise County. Barry got killed in the court room by a cop who knew what he was doing. Sorry Barry not all cop's are idiots.

Anonymous said...

Go ahead and yap at me, but both 12:58 and 2:27 don't know their apostrophes. You don't need 'em for plurals but rather for possessives. Do you know the difference?

Greta said...

If he was smoking it when the police arrived, they may have smelled something. You said "Horror of horrors, my client looks down and away from the officers' stare". Too chancy of an argument. What's the punishment for this horrific crime?

Afterall, pigs do have snouts.

Anonymous said...

Barry, you know the routine from years past. CA Hale had the best IDEA for the 1990's and 2000's.
I worked the streets for over a decade, his IDEA was simple and cost effective.
Clog the courts with a bunch of rookies on their first find or "smell" of MARIHUANA, we all got blogged down. SEIZE the MARIHUANA U find under 4 ounces and prosecute as a CLASS C MISDEMEANOR. IF U as POLICE find MARIHUANA, I WILL NOT PROSECUTE{this was printed in numerous articles}. Take that container that conceals the contraband and pursue a "DRUG PARAPHERNALIA" charge. You already seized and inventoried the substance and that will have to be destroyed under TEXAS LAW. It's off the street and the city or justice of the peace collected the fines for justice served. LECTURES OF STEPHEN HALE might make better since now than what it it did then.