James Luster

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Controlled Substance Attorney

Drug Charges in Texas

Getting caught with an illegal controlled substance or narcotic is a serious crime. People charged with drug possession face prison or jail time, long probation, and really high costs. Texas is one of the states known for its strict drug crime laws. On top of the time being locked up and money – it can take years to dig out of other holes, like driver’s license suspension and surcharges. If you’re facing possession of controlled substance in Texas, attorney James Luster wants to help. He is a former prosecutor and a dedicated criminal defense attorney. He is will take your drug charge seriously.

Meet Attorney James Luster for your Drug Charges...

On this page:

  1. Texas Felony Possession of a Controlled Substance
  2. First Time Offender Program - Felony and Misdemeanor
  3. Illegal Search and Seizure of Drugs
  4. Drug Free Zones
  5. Background on Drug Laws

Texas Felony Possession of a Controlled Substance

The Texas Controlled Substances Act contains most of the laws criminalizin possession of illegal drugs. The Act is complex and convoluted. It can be difficult to pick your way through. Depending on the type of drug, the amount (weight) of drug, and the circumstances; charges can be anywhere from a minor misdemeanor to a felony with a Life sentence.

You may think your drug charge is open-and-shut, and you may think you do not have any defense. Just wait, you need to think about the different ways a lawyer may be able to help:

  • Drug diversion probation programs to keep it off of your record;
  • Get the drugs thrown out of court based on illegal search and seizure;
  • Convince the prosecutor or jury you did not knowingly possess the drugs;
  • Create a pretrial plan to reduce your charge or sentence;
  • Fight a search and seizure issue in front of a jury.

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Possession of Penalty Group 1 - Cocaine, Heroin, Meth

Texas drug crime laws breaks different controlled substances down into different “penalty groups.” The most serious drugs under Texas law (cocaine, heroin, methamphetamine) are in Penalty Group One (PG 1). These drugs are measured in grams. A charge for possession of under a gram is a State Jail Felony. This can get a person anywhere from 180 days to two- years in jail. In Tarrant County, you will see this charge abbreviated as POSS CONT SUBST U/1G-PG1 on jail and court paperwork. The next higher level of charge is possessing of one gram but less than four grams, a Third Degree Felony. This charge carries a penalty of anywhere from two to ten years in prison. A person having four up to 200 Grams is a Second Degree Felony (punishable by two to 20 years in prison). To be charged with a First Degree Felony under this group, it means you are accused of having at least 200 grams of a Penalty Group 1 Controlled Substance. This 1st Degree charge is punishable by up to 99 years (or Life) in prison.

The most common Penalty Group 1 (PG1) controlled substances (drugs) are:

Punishment for Possession of Penalty Group 1

  • Less than 1 Gram of Controlled Substance PG1: Possession of less than one gram is a State Jail Felony which may result in confinement in a Texas State Jail Facility for a minimum of 180 days and maximum of 24 months along with a fine up to $10,000.
  • 1 to 4 Grams of Cocaine: Possession of one gram to four grams of cocaine is a third degree felony which may result in confinement in a Texas Department of Criminal Justice – Institutional Division for a minimum of 2 years and a maximum of 10 years along with a fine up to $10,000.
  • 4 to 200 Grams of Controlled Substance PG1: Possession of four grams to 200 grams is a second degree felony which may result in confinement in a Texas Department of Criminal Justice – Institutional Division for a minimum of 2 years and a maximum of 20 years along with a fine up to $10,000.
  • 200 to 400 Grams of Controlled Substance PG1: Possession of 200 grams to 400 grams is a first degree felony which may result in confinement in a Texas Department of Criminal Justice – Institutional Division for a minimum of 5 years and a maximum of 99 years (or life) along with a fine up to $10,000.
  • More than 400 Grams of Controlled Substance PG1: Possession of one gram to four grams is a first degree felony which may result in confinement in a Texas Department of Criminal Justice – Institutional Division for a minimum of 10 years and a maximum of 99 years (or life) along with a fine up to $100,000.

NOTE: LSD falls under this classification with a group 1A classification. It carries a penalty from two years to life in prison. It also has a fine up to $250,000.

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Possession of Cocaine Charges

Cocaine is a stimulant drug that causes an intense feelings of euphoria (a feeling or state of intense excitement and happiness) and is very addictive. Powdered cocaine (hydrochloride salt form) is usually snorted or sometimes put into water and then injected. Crack cocaine has not been “neutralized” by an acid to make the powder cocaine, so Crack comes in rock crystals that can be heated and smoked. Like methamphetamine, cocaine is a Schedule II stimulant under the Federal drug law and a Penalty Group 1 Controlled Substance under Texas drug law. There are about 2 million cocaine users (over the age of 12) in the United States.

Controlled substance law enforcement has increased effectiveness in detection and prosecution of cocaine possession and delivery charges. James Luster is a former prosecutor, experienced and successful in pre-trial and trial controlled substance possession cases. He is experienced in cases where people have been accused of:

As in most drug charges, the consequences for cocaine possession depend largely on the amount of cocaine allegedly recovered by law enforcement. Someone will be charged with the offense of possession of cocaine if that person knowingly or intentionally possesses cocaine which is listed in Texas Controlled Substance Penalty Group 1. The amount of cocaine is determined by the aggregate weight, including adulterants or dilutants. The specific penalties for cocaine possession are found below:

For some first offense possession of cocaine charges, you may be eligible for a First Time Drug Offender Program. If the amount of cocaine is less than 1 gram, you did not have a firearm, you were not in a school zone or jail, then your case may be a “mandatory probation” case. There are so many factors to consider in understanding possible punishment, you need to talk to a criminal defense lawyer and allow them to investigate the circumstances of your case.

Almost all cocaine is imported (trafficked) into the United States. Cocaine is made from coca leaves grown in South America (Bolivia, Peru, and Colombia). A lot of the process for making cocaine happens in foreign jungle labs where the raw product is treated with different chemicals. Colombia is where almost all the pure cocaine found in the United States comes from.

  • cocaine possession;
  • possession of cocaine with intent to deliver; and
  • delivery of cocaine.

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Possession of Methamphetamine

The government has intensified their enforcement of controlled substance laws, especially methamphetamine. Possession and manufacturing of methamphetamine and crystal meth has taken the forefront in many communities, including North Texas. The Government sees meth possession as closely connected to violence and other crime. Specifically, the Government is concerned about Mexican cartels and “White Supremacist” groups using meth as a means to generate revenue. To stem the violence and crime, the Government has increased enforcement and prosecution for methamphetamine possession.

The risk of operating a meth lab and the low cost of imported methamphetamine has reduced the number of labs in Texas. So, law enforcement are spending much of their time and resources on trafficking of meth. This includes what is known as “interdiction” and also using confidential informants.

Methamphetamine (meth) is a nervous system and metabolic stimulant. What we consider to be “regular” meth is in pill or powder form. “Crystal meth” gets its name because it looks like glass pieces or shiny blue- white “rocks” of different sizes. People swallow, snort, inject, or smoke ethamphetamine. Under Texas drug laws (Texas Health and Safety Code), it is a Penalty Group One drug. Under Federal Law, it is a Schedule II drug under the Controlled Substance Act (CSA). Meth is classified this way because the government believes it has a high potential for abuse and practically no medical use. Studies show meth users have a low rate of sustained recovery (hard to quit) and it is cheap to manufacture. The number of meth users per year in the U.S. ranges from about 300,000 to 500,000.

The government says almost all of the methamphetamine sold and used in Texas is made in large labs down in Mexico. These labs are operated by large drug trafficking organizations in business on both sides of the Southwest U.S. border. The government believes the production of meth in Mexico is increasing. They say the number of seizures of the drug (government taking it from people) at the border has gone up, and the number laboratories being discovered and shut down in Mexico has gone up. The government is also seizing a lot more “precursor” chemicals at the border.

Methamphetamine Precursor Charges

Police are not just looking for meth, but also the chemicals and drugs used to make meth. These are known as “Precursors of methamphetamine.” These include, but are not limited to:

  • Ephedrine;
  • Pseudoephedrine;
  • Monomethylamine, and
  • Phenylacetic acid.

These “precursor” chemicals are bought, sold, and shipped all around the world. However, methamphetamine in its final form is usually bought, sold, and used in the same region of the world.

 

Authorities are on the lookout for people and groups trying to gather the “precursors” to meth. The amount of pseudoephedrine and ephedrine products being sold are way higher than legal use support, according to the Combat Methamphetamine Epidemic Act (CMEA) limit. The government tracks how much of these chemicals we buy. The daily amount a person can buy is limited to 3.6 grams and the 30 day limit is 9 grams.

People go from place to place trying to buy more of these chemicals. This is called “smurfing,” and the police are cracking down on this. Police view “smurfing” as a big cause in the increase of hidden local methamphetamine labs. Busting people smurfing has lead to a lot of shut down labs in the past few years. The government sees this as a part of the drug problem that is getting worse, because more and more unsophisticated ways of cooking meth, like the “one pot method”, have increased. These simpler ways to make meth may only produce a small amount (a gram, up to an ounce), but the methods need much less pseudoephedrine tablets if combined with other household items that are easy to get.

Possession of methamphetamine in Texas is a serious charge. If the police have arrested or are investigating you, then you need to contact a criminal defense lawyer as soon as possible. Do not speak with law enforcement until you talk to a lawyer. You may have a bad criminal history or you may be a first time drug offender, either way, your chances of avoiding a long prison sentence are much better with a lawyer early in your case.

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Heroin Possession Charges

The Government claims the threat caused by heroin in the U.S. has seriously increased, especially since 2007. Police are concerned because they are finding: heroin is available in larger amounts; more people are using it; and there has been an increase in overdoses. Overdoses have more than tripled in the last 6 years. The higher demand for the drug is making it easier to get and making it more affordable.

Heroin is a really addictive drug and the most fasts acting opiate. Most heroin is sold as a white or brownish powder, or as the black sticky substance (black tar heroin). It is getting easier to find purer heroin, but most heroin on the street is “cut” with other drugs or substances. People inject, smoke, or snort it. Heroin is a Schedule I substance under the Federal drug law (Controlled Substance Act), because the government views it as having a high potential for abuse and no currently accepted medical use in treatment in the United States. Heroin abuse has been rising gradually over the last several years.

All heroin in the U.S. comes from another country. U.S. heroin is made mostly in four parts of the world: South America (Colombia); Mexico; Southeast Asia (mostly Burma); and Southwest Asia (mostly Afghanistan). Most of the heroin in Texas is black tar from Mexico.

Once again, the Government is concerned with Mexican drug trafficking. Like with methamphetamine, the Government sees heroin as a source of violence and other crimes. These concerns make prosecutors much harsher when evaluating heroin cases. Another contributing factor to the harshness directed toward heroin cases is the use of this drug in white suburban areas.

Heroin is a in Texas Controlled Substance Penalty Group 1. You can see punishment range for possession of heroin above in this same section.

If you were arrested for heroin possession, manufacturing, or delivery you need criminal defense attorney. James Luster has been a prosecutor and criminal defense lawyer. He has extensive criminal trial experience and success and an impressive track record of arguing the constitutional issues that are often at play in drug charges defense. He is familiar and has a professional working relationship with the Tarrant County District Attorney’s Office, and is familiar with the variety of drug treatment and deferral programs available to people accused of heroin possession or delivery.

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Penalty Group 2 - Ecstasy, PCP, Mescaline Possession

In Texas, the "Penalty Group 2" includes drugs like PCP, Ecstasy or Molly. These are the most common drugs cases heard in the courts in this area. Any form of cannabis that has extracted THC would also fall into this felony group. Less than one gram of any of these substances will carry a two-year jail sentence and fines. Carrying 400 grams or more is a life sentence with fines of over $50,000.

Penalty Group 3 - Possession of Valium, Ritalin and Other Prescription Medications

Many prescription medications fall under a more lenient category, they are classified as "Penalty Group 3" and also four. Less than 200 grams is a sentence anywhere from one year in jail and a fine that is around $4,000. Anyone with more than 200 grams in their possession can face up to 20 years in prison and fines that exceed $10,000. Drugs that fall into these categories include Xanax, Valium, Klonopin, and Ritalin. This is for prescriptions medications that are not prescribed to the individual. In Tarrant County you will see this abbreviated as POSS CONT SUB U/28G-PG3 on your jail or court paperwork.

NOT ADDERALL! Possession of any amount of Adderall is a felony, because it contains amphetamine salts and isomers. Like Ritalin, Adderral is prescribed for ADD or ADHD. Despite these drugs having similar pharmacological uses and physical affects, possession of Adderral is much more serious.

Marijuana Possession

The most common drug charge filed in Texas is possession of marijuana. There is a great debate about marijuana and its medicinal uses. While it is still an illegal drug in Texas, it does not carry the same penalties as other drugs. If a person has less than two ounces in their possession, the maximum sentence is 180 days in jail. However, when it comes to this low of an amount, typically, we can negotiate a deal for probation and a drug treatment program. If the drug treatment program is completed successfully, the charged can be dropped. The real problem comes into play where there are more than two ounces in one's possession. Things get really serious when there are over 2,000 pounds in one's possession. This can bring a life sentence. Marijuana charges are commonplace in Texas, but less than two ounces is typically a minor sentence.

Marijuana is a psychoactive drug, meaning it has chemicals that change how the brain works and changes your perception of reality and mood. Marijuana (weed) is a dried out green-brownish mix of flowers, stems, seeds, and leaves from the Cannabis sativa plant. Usually people smoke it, but eating it is also popular. Under Federal law it is a Schedule 1 substance. Texas law does not put marijuana in a “penalty group” like most other drugs. There are about 20 million marijuana smokers in the United States. There are crops in the United States, Canada, Mexico, South America, Asia, and the Caribbean (mostly in Jamaica).

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Xanax Drug Charges

We want to get your Xanax possession charge dismissed. But we need to get started right now. If police have charged you with possession of Xanax call a Fort Worth criminal defense attorney. Don't make the mistake of thinking because Xanax can be legally obtained with a prescription that possession of Xanax is not a serious drug charges. Possession of Xanax can result in serious jail time, high fines, driver’s license suspension and a permanent criminal record. The possession and use of Xanax is highly regulated in Texas. Let's start building your defense strategy.

If you do not have any criminal history, you may qualify for a drug diversion program (first time offender program) to get the record expunged. These programs have strict deadlines, and you cannot wait until your court date to get a lawyer to look at the case.

What Is Xanax (Xanex)?

Xanax (generic Alprazolam) is a drug belonging to the group called benzodiazepines. Doctors prescribe Xanax for a variety of symptoms, illnesses, and disorders to treat anxiety, panic attacks, and depression. Xanax is administered in pill form in a variety of shapes and colors. You cannot legally obtain Xanax in Texas without a prescription from a medical doctor, so possession of Xanax without a prescription is a criminal charge in Texas. Alprazolam (Xanax sometimes misspelled as Xanex) is a Controlled Substance listed in Penalty Group 3 of the Texas Health & Safety Code. You may see difference spellings such as zanex or zanexx.

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Penalties for Possession of Xanax in Fort Worth and Texas

It is a crime if a person possesses Alprazolam (Xanax), unless the person gets the pills directly from a licensed (medical provider) practitioner acting in the course of professional practice. In Texas, a psychologist cannot prescribe medication.

Possession of Less than 28 Grams of Xanax: Class A misdemeanor, up to 365 days in jail and up to a $4000 fine. Possession of more than 28 Grams but less than 200 Grams of Xanax: Third Degree Felony, 2 years to 10 years in the Texas Department of Criminal Justice – Institutional Division and up to a $10,000 fine. Possession of more than 200 Grams but less than 400 Grams of Xanax: Second Degree Felony, 2 years to 20 years in the Texas Department of Criminal Justice – Institutional Division and up to a $10,000 fine. Possession of 400 Grams or more of Xanax: First Degree Felony, 5 years to 99 years (or life) in the Texas Department of Criminal Justice – Institutional Division and up to a $50,000 fine.

The amount of Xanax is determined by aggregate (putting all the pills together) weight including adulterants or dilutants. The penalty for possession, manufacturing, or delivery can be much worse depending on other factors such as criminal history or drug free zones. You need to discuss any Xanax possession charge with a skilled criminal defense attorney.

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Common Side Effects of Xanax Use

  • Being forgetful
  • changes in patterns and rhythms of speech
  • clumsiness or unsteadiness
  • difficulty with coordination
  • discouragement
  • drowsiness
  • feeling sad or empty
  • irritability
  • lack of appetite
  • lightheadedness
  • loss of interest or pleasure
  • relaxed and calm
  • shakiness and unsteady walk
  • sleepiness or unusual drowsiness
  • slurred speech
  • tiredness
  • trouble concentrating
  • trouble in speaking
  • trouble performing routine tasks
  • trouble sleeping
  • unsteadiness, trembling, or other problems with muscle control or coordination
  • unusual tiredness or weakness
  • Less common
  • Abdominal or stomach pain
  • blurred vision
  • body aches or pain
  • changes in behavior
  • chills
  • clay-colored stools
  • confusion about identity, place, and time
  • dark urine
  • decrease urination frequency
  • decrease urine volume
  • diarrhea
  • difficult or labored breathing
  • difficulty in moving
  • difficulty in passing urine (dribbling)
  • difficulty concentrating

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What does Xanax look like?

Marketed as Xanax Strength: 0.25 mg Pill Imprint: XANAX 0.25 Color: White Shape: Elliptical / Oval Strength: 0.5 mg Pill Imprint: XANAX 0.5 Color: Orange Shape: Elliptical / Oval Marketed as Alprazolam Strength: 2 mg Pill Imprint: GG 249 Color: White Shape: Rectangle Strength: 0.25 mg Pill Imprint: GG 256 Color: White Shape: Elliptical / Oval

Common Nick-Names for Xanax or Alprazolam

Z-bars, Bars (white pills), School bus (orange pills), Yellow boys (orange pills), Footballs (blue pills), Handlebars (white pills), White boys (white pills), White girls (white pills), Bicycle parts (white pills)

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First Time Drug Offender Program in Tarrant County

This program is designed to allow first time offenders to get their case dismissed and put their drug charges behind them. Even Felony Drug Charges for First Time Offenders may be able to enter this program. Drug cases make up a large part of the Tarrant County criminal court docket. Most people with these charges do not deserve or need to be imprisoned or put on long probations. So, the courts and the Tarrant County District Attorney’s Office have put together the First Offender Drug Program for misdemeanor and felony drug charges. The program is meant to help improve efficiency in the courts and justice system by quickly and effectively addressing drug charges that are not likely to lead to future criminal problems. The courts do this by “diverting” these people into the First Offender Program. The program is court-supervised and meant to reduce crime, hold drug offenders accountable, increase sobriety among drug offenders, reduce costs to our community, and ultimately reduce congestion in the criminal court dockets. The good news for you is, the program lets you get your case dismissed and later expunged. So, talk to the lawyer defending your drug charge to learn about whether you can get into the first time offender program.

Which Drug Charges can get into the program?

The list below was updated January 15, 2017. The Tarrant County District Attorney’s Office changes the list from time to time. You need to speak with you criminal defense attorney about whether your drug charge may be eligible for this first time drug offender program. Remember, just because your charge is “eligible” does not mean they will let you into the program. Also, you cannot have ever been convicted or been on probation (including deferred adjudication) for any crime other than a “ticket.”

  1. Possession of Controlled Substance, under 1 gram
  2. Possession of Controlled Substance, 1-4 grams
  3. Possession of Controlled Substance under 2 ounce
  4. Marijuana Possession under 2 ounces
  5. Marijuana Possession 2-4 ounces
  6. Controlled Substance PG3 under 28 grams in Drug Free Zone
  7. Under 4 ounces of Marijuana Possession in Drug Free Zone
  8. Forging or Altering a Doctor’s Prescription to get Drugs
  9. Possessing a Dangerous Drug

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What are the steps to get into the program?

This is an overview of the steps to get into the First Offender Drug Program, but you need to talk with you criminal defense attorney very specifically about what is required of you. First, you will fill out an application with your lawyer’s help. Your lawyer can get this application from the Tarrant County website, or from contacting the program director. After you have filled out your application, you lawyer must turn it in within 90 days of your case being filed. There are no exceptions to this rule. So, you need to be sure to get your application in as soon as possible. Second, you are now waiting for one of the assistant DAs to review your application. The DA will email your lawyer to let him know if you got into the program or not. If you do not get in, you need to talk to your layer about your other options or strategies. Third, once you have been accepted, your lawyer will schedule a date for both of you to go to court and you will enter a plea of “guilty.” This is when the program starts.

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What happens in the First Time Offender Program?

The First Offender Drug Program is a lot like probation. The procedures for the program can change from time to time, but you can expect the felony program will last 180 days and the misdemeanor program to last 90 days. You can expect to be required to the following in the program:

  • Report to a case manager immediately and give a urine specimen;
  • You will have to give urine specimens for drug testing at least twice a month;
  • In the felony program you will be required to give a hair sample for drug testing;
  • You must attend court several times throughout the entry process and the exit process;
  • You must attend short classes related to drug use;
  • You will report to your case manager about your progress; and
  • Pay all costs and fees on time.

Be sure you fully understand what is required of you. If you violate any of the rules, then you will be found guilty and receive a sentence. If you are found guilty, even of a misdemeanor, the drug charge may stay on your record forever.

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Tarrant First Offender Drug Program Cost

Felony $550

  • 180-day program
  • Urinalysis 2 x per month
  • 2 hair tests
  • Short term education class

Misdemeanor $350

  • 90-day program
  • Urinalysis 2 x per month
  • Short term education class

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Defending Against Illegal Searches for Drugs

One of the most common defenses in drug charges is challenging the legality of a search conducted by law enforcement. The Constitution of the United States gives us certain privileges listed in the Bill of Rights (the first ten amendments to the Constitution). These ten “inalienable” rights were added to the Constitution in 1791, and serve as the foundation for much of the liberty and freedom enjoyed in the United States. In particular, the Fourth, Fifth, and Sixth amendments in the Bill of Rights provide protection and fairness in the Government’s pursuit of justice. These are the three amendments most often fought about in criminal cases. The Fourth Amendment is often the tool used to get drug cases dismissed, but the Fifth and Sixth amendments sometimes play an important role. The Texas constitution provides the same (if not greater) protections than the U.S. Constitution, and Texas has some other laws (statutes) that provide more specific protections against illegal searches in drug cases.

Both the Fourth Amendment of the U.S. Constitution and Article 1 of the Texas Constitution are used in possession of controlled substance (drug) cases. Texas has some additional protections (in statutes) to protect people from unreasonable search and seizure by the Government. To make use of these protections in your drug case, your lawyer needs to consider whether to file a “Motions to Suppress.” Search and seizure law related to drug cases is a hot bed for litigation in Texas and Federal courts.

The Fourth Amendment says people are entitled to be safe and secure in their own home, their cars, and their body. It further requires that probable cause must exist in order for police (law enforcement) to get a warrant to invade a your property or space, and that warrant must specifically name the location and place the police are going to search. Any evidence (drugs) gathered outside the bounds of the Fourth Amendment may be considered illegal, and as a result might be excluded from the evidence at trial. There are many exceptions to this rule, and circumstances of the search or seizure may “cure” the illegality. Meaning, even if a search for drugs (controlled substances) is illegal, if other circumstances exist like Good Faith by Police and Probable Cause, then the judge may not exclude the evidence. As you can see, this is a very complex area of criminal law, so you need to talk to a criminal defense lawyer about these issues in your drug case.

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The Evolution of Evidence Exclusion

The U.S. Supreme Court decided in Weeks that evidence obtained illegally may be excluded from trial in some cases. This decision was further bolstered in Mapp where the Supreme Court further expanded this “exclusionary rule” to non-federal cases, effectively putting the protection provided by the Fourth Amendment into action in every state (including Texas). The exclusionary rule allows you to object to the introduction of evidence (drugs) gathered illegally by law enforcement. It is a minimum standard designed to protect you from the Government. States may add to this common law (law created by courts through practice) exclusionary rule by enacting statutes. Texas’ exclusionary rule is codified (put into written law by the legislature) in article 38.23 of the Texas Code of Criminal Procedure. The Texas Constitution also governs the types of searches and seizures that are illegal in Section 9 of Article 1. The exclusionary rule is what it sounds like, your lawyer asks the judge to exclude the drugs from evidence in your case.

Fruit of the poisonous tree is a term used in criminal law to describe evidence (like drugs) that are found by the government illegally. The idea behind this poetic term is that if the source of the evidence (represented by the tree) is tainted or poisoned then anything you get from the source (represented by the fruit) is also tainted or poisoned. So if an arrest is illegal (poison tree) then evidence found because of that arrest (fruit) is found illegally. This evidence is usually not admissible in criminal cases if you defense layer properly objects. Like any rule, there are exceptions though. The "fruit of the poisonous tree" doctrine grows out of the exclusionary rule. So, like the exclusionary rule, the fruit of the poisonous tree doctrine is intended to discourage police from violating your constitutional rights.

Exceptions to Exclusion of Illegally Discovered Drugs

Your criminal defense attorney may tell you that even though drugs were found pursuant to an unlawful search or arrest in your case, the court is not likely to exclude the drugs from evidence. This could be because of one of these exceptions to the exclusionary rule.

 

  • The Attenuation Doctrine - even if evidence (drugs) are found illegally, the evidence can be used as evidence in criminal court if the connection between the evidence and the illegal activity is not very close.
  • Inevitable Discovery Rule - NOT IN TEXAS COURTS - evidence (drugs) found in violation of your constitutional rights can be used in court if the Government (prosecutors) can prove by a preponderance of the evidence (more likely than not) eventually the police would have found the evidence using normal police investigation practices.
  • Good Faith Exception - NOT IN TEXAS COURTS - if evidence (drugs/controlled substances) are collected in violation of your privacy or property rights (Fourth Amendment) the evidence can still be used in criminal cases if the police were acting in actual “good faith” and believed their actions to be legal.

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Motion to Suppress in Drug Cases

Your criminal defense attorney must object to the introduction of the illegal evidence in order to have evidence excluded. A Motion to Suppress is the legal tool defense attorney’s use to put the Fourth Amendment’s protections into effect. The illegal evidence must be objected to or you waive your Constitutional right to the protection provided by the Fourth Amendment.

A Motion to Suppress requires you to prove that a search or seizure occurred without a warrant. If there was no warrant then the burden is on the Government (prosecutors) to prove the search was legal. If the Government produces a warrant, however, then you are required to prove that the warrant was invalid. What your lawyer must prove depends on the type of Motion to Suppress they file.

Types of Motions

Motion to Suppress an Illegal Detention invokes the Fourth, Fifth, and Sixth amendments. This motion suppresses all evidence gathered at during and after you are arrested or detained. This may also apply to statements you made at the time of arrest or detention. This motion is appropriate for arrests made without probable cause and a warrant, and functions to repress all the “fruit of the poisonous tree.” As an example, a police officer pulls you over because you do not look like you should be in that neighborhood. This is an illegal reason to pull someone over. During the “traffic stop” the police officer asks you to search your car. Even though your lawyer has told you, “NEVER CONSENT TO SEARCHES!” you tell the police officer it’s ok. Then the police officer finds marijuana in your glove box. The police officer arrests you. After you are arrested, he pulls out your pockets and finds methamphetamine. These searches would have been legal BUT FOR the illegal traffic stop. Your lawyer should file a motion to suppress the marijuana and the methamphetamine asking the judge to throw that evidence out of the case.

Motion to Suppress an Illegal Search is similar to the Illegal Detention motion in that it functions to suppress any evidence that was gathered as a result of an illegal search. It does not require that you were present or arrested at the scene. It invokes many Amendments in the Constitution but is mostly based off the principle of the Fourth. This motion might work to exclude drugs found when police open your trunk or go into your garage without a warrant or your consent.

Motion to Suppress Statements is based largely on the Fifth and Sixth amendments. However, the Fourth Amendment can play an important role in these motions. For instance, if your statements were made as a result of an unlawful arrest. Similarly, a Motion to Suppress Grounds for Arrest implicates the Fourth Amendment even though it derives authority from a provision of the CCP. It states that there was no probable cause to arrest a defendant in the first place. As the Fourth Amendment requires probable cause to “seize” a person or property, an arrest without that probable cause would clearly be a violation.

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Hot Topics in Drug Search and Seizure Law

Needless to say, some violations of the Fourth Amendment or Texas Constitution are more favorable arguments that are more likely to win in court. For instance, in Texas it is very difficult to prove a warrant is invalid based on lack of probable cause. The precedent is for the trial court to give great deference to the magistrate that signed the instrument. The warrant affidavit used to create the warrant is reviewed in a common sense manner. This protects police action from being challenged based on technicalities. On the other hand, there are some definite hot spots in proving a search or seizure was unlawful.

Reasonable Suspicion: A particularly unpredictable area that is currently litigated often is reasonable suspicion. Reasonable suspicion refers to the purpose for which a law enforcement official detains you. Reasonable suspicion to detain exists if the arresting officer has specific, articulable facts that combine with a rational inference from those facts to create a reasonable conclusion that you have participated or your are about to participate in a criminal activity. An officer must be able to explain pretty specifically what criminal activity he suspects (i.e. drug possession, theft). It is an objective test that relies on the “totality of the circumstances” to conclude whether detaining you was necessary. Even if the likelihood that innocent activity is just as plausible as criminal activity a reasonable suspicion sufficient to detain may exist based on the circumstances.

In determining the facts on which to base the totality of the circumstances, appeals courts are required to give great deference to the trier of fact. The reason for this deference, whether the trier of fact is judge or jury, is that they saw firsthand how the parties gave their testimony. The trier of fact was able to see the mannerisms and confidence the witness or officer was in their testimony that may not be reflected in the record. For this reason it is crucial to win your drug case before or at the trial, because it is unlikely that an appeals court will overturn based on the facts as decided at trial.

Search Incident to Arrest: Another current hot spot in Fourth Amendment litigation is search incident to arrest after Arizona v. Gant. The Supreme Court overturned the bright line rule that allowed police to automatically search all areas of a vehicle following arrest. The old rule allowed police to search your car for drugs or guns whenever they arrested you, even if they had no reason to believe you had drugs or guns. Unfortunately, now police still search and just call it an “inventory” of your car. Courts in Texas have indicated that a “reasonableness” standard is used to determine if the search incident is appropriate. This standard is based off the objective facts and circumstances of the arrest and subsequent search, and when taken together provide the arresting officer with reasonable suspicion to search the whole car. The subjective intent of the officer is not taken into account in this reasonableness assessment.

Traffic Checkpoints: Another similar area of law are checkpoints. These checkpoint have been approved by the Texas Court of Criminal Appeals because they are considered a non-suspicious driver’s license check. Prior to the Texas Criminal Appeals Court ruling, the appeals court held that it was a violation of the Fourth Amendment because they found the stop to be for general criminal activity. If a polie officer smells the odor of burnt marijuana in your car, then they are going to search your vehicle for drugs or other evidence.

Dog Sniff Searches: Police often use dogs for investigation of drug charges. Whether a dog is a qualified drug detection animal is judged on the totality of the circumstances of the environment where the alert occurs. In order for a dog’s alert to be followed, the State must provide evidence that it is sufficiently trained and unlikely to give a false alert. In most cases evidence that the dog has completed a narcotics training program and received certification is enough to uphold the dog’s alert. Other factors at the time of the alert must be followed on a common sense basis, much like probable cause.

The Supreme Court has ruled that a dog sniff at the door of a house, or at the door of an apartment, is considered a search for purposes of the Fourth Amendment and requires a warrant.

Freedom from Search and Seizure

The Constitutional right to privacy and protection from the Government is still an important issue that we often litigate in drug charges. While the Government and its judicial branch have effectively curtailed some of our defense, there are many circumstances where you may challenge a search leading to the discovery of drugs or controlled substance. The motion to suppress is still a strong tool for criminal defense attorneys across the country to help the public defend themselves from unreasonable government infringement into their lives. James Luster has litigated and won many Fourth Amendment issues. Meet with him to discuss the circumstances of your case.

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Charges in Drug Free Zones in Texas

What are drug free zones?

There are locations within Texas designated as Drug-Free Zones. Simply stated, these are areas in which it is illegal to possess drugs or controlled substances. You may be thinking that it is already illegal to possess drugs in Texas so why have the Drug-Free Zones. The Drug-Free Zones allow the State to increase the penalty or punishment range for possession of drugs within 1,000 feet of the excluded zones.

Drug Free Zones in Texas

Where are Drug Free Zones? Drug-Free Zones are places children are usually around. Schools and daycares are some of the most common Drug-Free locations, but there are many others. The Texas Health and Safety Code Section 481.134 has outlined a number of places that are Drug-Free Zones. Illegally possessing drugs within 1,000 feet of these zones can result in a higher degree of drug charge and make the punishment worse than just possessing the drugs anywhere else.

 

These Drug Free Zones include:

  • Institutions of higher education (colleges or universities)
    • Texas Christian University
    • Tarrant County College
    • University of Texas at Arlington
  • Agency of Higher Education
  • Education Affiliated Agencies
  • Museums
  • Public playgrounds
  • Schools (public or private)
  • Video arcade
  • Youth center (can include a daycare center)
    • Fort Worth Boys & Girls Club
    • Fortress YDC
    • Golden Gloves of Fort Worth
  • Public swimming pool
  • On a school bus.

What happens if I’m caught with drugs in a Drug-Free Zone?

Drug charges from an arrest in a Drug-Free Zone are more serious. The special “zone” serves as the basis of an enhancement to the crime and makes the punishment worse by one degree for possession of drug charges. An example of this would be Possession of a Controlled Substance, Penalty Group 1 (methamphetamine), one ounce to four ounces is a Third Degree Felony with a punishment range of 2-10 years in prison. If a person is accused of possessing the same drug of the same amount within a Drug Free Zone, the offense can be charged as Second Degree Felony with a punishment range of 2-20 years in prison.

Other Harsh Penalties for Drug Free Zone

In addition to the worse punishment you can face, a Drug Free Zone allegation in the indictment (the charge against you) can affect the award of good conduct time and parole if someone is sentenced to prison. If you get a jail or prison sentence on a DFZ drug charge, then taht sentence is “stacked” or is served consecutively to any other sentence. The law says these sentences cannot “run concurrently” with punishment for another conviction under another statute. For example, if you are convicted of Possession of Cocaine 1-4 grams in a Drug Free Zone and received a 5 year prison sentence and was also convicted of Burglary of a Habitation and received a 5 year prison sentence, then you would be required to serve out the Drug Free Zone sentence BEFORE beginning to serve the Burglary sentence. Basically, this makes the two prison sentences add up to 10 years instead of 5.

Many times the you would not even know you were in a Drug Free Zone. The Government does not always put signs up to make where these zones are. Frankly, this makes it unfair at times if someone is alleged to be in possession of a controlled substance within the zone. It is even possible to simply be driving through a Drug Free Zone and be stopped by police and charged with a Drug Free Zone allegation. If you or someone you know is facing a Drug or Possession of Controlled Substance charge it is critical that you consult with an experienced Fort Worth criminal defense lawyer.

Definitions for Texas Drug Free Zones

Earlier, this article lists areas that are considered “Drug Free Zones,” but Texas has an confusing definition that can apply to a lot of places.

Youth Center is a recreational facility or gymnasium intended for minors and “regularly provides athletic, civic, or cultural activities.”

  • Institution of higher education is a public or private technical institute, community college, two-year college, four-year college, public university, private university, medical school, or dental school.
  • Agency of Higher Education includes administrative facilities of the: University of Texas System; Texas Western University Museum; Texas A&M University System; and Texas State University System.
  • Education Affiliated Agencies including the: Texas Agricultural Experiment Station; Texas Agricultural Extension Service; Texas Engineering Experiment Station; Texas Engineering Extension Service; Texas Forest Service; Water Resources Institute of Texas; and Texas Veterinary Medical Diagnostic Laboratory.
  • Museums that include: Texas Tech University Museum; Sam Houston Memorial Museum; and Panhandle-Plains Historical Museum.
  • Playground is any non-school outdoor facility that is intended for recreation, is open to the public, and has 3 or more play stations intended for children (i.e. slides, swing, and teeter-totters).
  • School is considered a private or public elementary or secondary school or a day-care center.
  • Video arcades are places open to the minors and is intended primarily for the use of “pinball or video machines” and has at least 3 “pinball or video machines.

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Background on Drug Laws

Getting Armed for the War on Drugs

Ronald Reagan's presidency in the 1980s marked the start of skyrocketing rates of incarceration. This was due largely to his unprecedented expansion of the “drug war.” According to Drugpolicy.org, the number of people behind bars for nonviolent drug offenses increased from 50,000 in 1980 to over 400,000 by 1997.

The 1980s brought the media's portrayal of people addicted to the smokeable form of cocaine called “crack" which lead to widespread public concern over drug use. And remember "Just Say No"? Soon after Reagan took office in in 1981, the First Lady began the popular anti-drug campaign "Just Say No." That slogan was everywhere and is still engrained in the minds of anyone alive in the 1980s. This campaign set the stage for the harsh policies to follow. The 1980s also saw the formation of DARE, a drug education program. DARE was quickly adopted across the nation despite the lack of proof that the program worked.

The late 1980s saw Congress and state governments passing harsher penalties for drug crimes. The prison population increased dramatically with drug offenders. In 1985, a poll of Americans who viewed drug abuse as our country's number one problem was between two to four percent. In September 1989, 64 perfect of Americans polled viewed drugs as our number one problem. Just Say No was working! Or at least it was increasing vigilance and putting people in prison.

Okay, maybe “working” is not the right word. Fewer people weren't abstaining from drug use necessarily, but the public fear of drugs was at an all time high and those getting punished for drug crimes were being taken off the streets for extended periods of times and sometimes permanently. Many serving life sentences for crimes like growth of marijuana plants with intention to distribute and possession of cocaine with intent to distribute. Astonishing periods of time in many cases for non-violent crime.

More Reasonable Drug Reforms

The drug war has been particularly hard on African-American and Hispanic-American populations. President Obama made a historic move towards equality in the criminal justice system by signing the Fair Sentencing Act eliminating the 1 to 100 disparity in sentencing standards between crack (primarily used by poorer demographics) and powdered cocaine (the only real fun in the 80’s). This distinction between crack and traditional cocaine had been a major factor in the skyrocketing prison population of nonviolent drug offenders as well as the racial disparity of the American prison system, since crack is used mostly by African-Americans and the powdered form of the drug mostly by whites. About 85 percent of those convicted of crack cocaine possession are black.

Prior to the Fair Sentencing Act of 2010, one gram of crack cocaine was treated as the equivalent of 100 grams of powder cocaine. The Fair Sentencing Act reduced that ratio to about 1 to 18 essentially raising the possession amount of crack cocaine necessary to trigger mandatory sentences. Sounds good, right? The sentencing law will now treat similarly situated people alike. Now is the key word. What about all those people sentenced under the stricter guidelines? Does the new law apply to them?

Federal Drug Enforcement Agency (DEA)

Practically every policing agency in Texas makes arrests for drug charges. The police for smaller towns usually make arrests arising from incidental contact (e.g. traffic stops), rather than prolong investigations. Larger cities have special units dedicated to narcotics enforcement and some of these police agencies work with statewide and federal agencies. The State of Texas, along with the federal government, has several enormous drug enforcement policing agencies. The agency investigating or making the arrest in your case may affect the outcome. This is a topic you should discuss with you criminal defense attorney. Most federal drug charges are filed by the DEA or police working with the DEA.

The federal Drug Enforcement Agency (DEA) was created in 1973 by President Nixon. The investigates and enforces federal drug laws (Controlled Substances Act) related to illicit drugs, controlled substance pharmaceuticals, and chemicals used to make drugs. The DEA is a huge government agency with almost 10,000 people working on drug law enforcement. Their budget was almost $2.5 billion dollars in 2015. They are expected to have spent more than $3.5 billion dollars in 2016. They would say they are the “world’s leading drug law enforcement agency.”

DEA workers may be called:

  • Special agents;
  • Intelligence analysts; and
  • Diversion investigators

The stated mission of the DEA is focusing on the organizations and most important people in organizations involved in the growing, manufacture, or distribution of controlled substances. Of course, they target the commonly known “Most Wanted” drug traffickers known as Consolidated Priority Organization Targets (CPOTs) and Priority Target Organizations (PTOs). They also go after the little guy. The agency tries to disrupt and tear apart drug trafficking and money laundering organizations. The tactic used is focusing on the money, attacking the economic basis of the drug trade. To get public support and funding, the DEA tries to make links between drugs and terrorism and other crime (national and border security). DEA investigation techniques are becoming more and more complex and often use electronic surveillance.

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