By Marco A. Quesada

Recently, the Miami-Dade Police Department conducted “operation machete” which resulted in numerous arrests for charges which included trafficking in marijuana. During the countywide operation, police raided 25 marijuana grow houses. At the state level, the charge for trafficking in marijuana from a grow house operation normally carries 3 year minimum mandatory prison sentence and a $25,000 fine. As a Miami criminal defense lawyer, I have defended numerous drug cases dealing with marijuana grow houses. A favorable outcome in the majority of these cases depended on the voluntariness of the consent by the resident of the house. A lot of these police raids are conducted without a search warrant and rely on the consent of the occupant to search the house.

By Marco A. Quesada

The U.S. Supreme Court ruled that law enforcement must obtain a search warrant prior to using GPS technology to track criminal suspects. The Court opined that the installation of a GPS device to track a vehicle’s movements constitutes a search. Therefore, a warrant is necessary.
This important ruling overturned a drug conspiracy conviction involving a Washington nightclub owner, Antoine Jones. Law enforcement installed a GPS device in Jones’ jeep which assisted them in linking Jones to stash house for drugs and money. Associate Justice Antonin Scalia concluded that the installation of the device on the vehicle, a protected area, without a warrant was a trespass and therefore an illegal search.
With an ever increasing use of high tech surveillance by law enforcement, as a Miami criminal defense attorney, I will have this ruling from the U.S. Supreme Court to challenge the admissibility of evidence obtained in violation of the Fourth Amendment’s protection against unreasonable search and seizure.

By Marco A. Quesada

In a recent decision, the Third District Court of Appeal ruled that section 893.13, Florida Statutes (2002), is constitutional.  The center of the argument focuses on section 893.101, Florida Statutes, which removed the criminal intent requirement, mens rea, from Florida’s Drug Abuse Prevention and Control Law.

In other words, prosecutors do not have to prove, as an element of the crime, that the person arrested for actual or constructive possession or delivery of drugs knew the substance was an illegal substance.  The only proof required is that the substance was there.  As a result, innocent citizens, who did not know the illicit nature of the substance possessed or even had actual knowledge that they possessed the substance, may be found guilty of drug offenses which carry serious criminal penalties.

The burden now shifts to the person arrested for a drug possession charge to seek a criminal defense lawyer and raise lack of knowledge of the illegal substance as an affirmative defense.  As a Miami criminal defense lawyer, I have been involved in cases where the citizen involved in innocent conduct has fallen victim to this statute.  As an alternative in limited circumstances, the attorney may be able to mitigate the facts of the case to the assigned prosecutor and favorably resolve the matter.

By Marco A. Quesada

The Florida Supreme Court has held that a “sniff test” by a drug detection dog conducted at the front door of a home is a search implicating the Fourth Amendment.  As such, probable cause is the proper evidentiary showing of wrongdoing that law enforcement must make under the Fourth Amendment prior to conducting a dog “sniff test” at a private residence.

The decision stems from the arrest of Joelis Jardines in Miami-Dade County.  Responding to an anonymous tip that marijuana was growing inside the home of Mr. Jardines, law enforcement officers surveilled the house without observing any criminal activity.  During the surveillance, the dog handler accompanied the drug detection dog, Franky, up to the front door of the home.  The dog alerted to the odor of narcotics.  After the positive alert by Franky for the scent of narcotics, the lead detective approached the front door and smelled marijuana.  A search warrant for the house was obtained primarily on the positive alert by Franky.  A search was conducted which confirmed that marijuana was being grown inside the residence.

At the trial level, Mr. Jardines moved to suppress the evidence.  Jardines claimed that the warrantless “sniff test” violated his Fourth Amendment rights against unreasonable searches.  Judge William Thomas agreed and granted the motion to suppress the evidence.  The State appealed.  The district court of appeal reversed.  The Third DCA held that a warrant was not necessary to conduct the “sniff test” by the drug detection dog.  Furthermore, the appellate court ruled that the officer’s detection of the odor of marijuana at the exterior of the Jardines’ home should not have been viewed as “fruit of the poisonous tree”.  Jardines sought review by the Florida Supreme Court.

The two issues raised to Florida’s highest Court were (1) whether a “sniff test” by a drug detection dog conducted at the front door of a private residence is a search under the Fourth Amendment and if so, (2) whether the evidentiary showing of wrongdoing that the government must make prior to conducting such a search is probable cause or reasonable suspicion.  As stated above, the Court concluded that the “sniff test” was a search and that probable cause of wrongdoing was required prior to conducting the test at the private residence.

The Court reasoned that “if government agents can conduct a dog ‘sniff test’ at a private home without any prior evidentiary showing of wrongdoing, there is simply nothing to prevent  the agents from applying the procedure in an arbitrary or discriminatory manner, or based on whim and fancy, at the home of any citizen”.  The Court supported its position by stating the basic purpose of the Fourth Amendment which is to safeguard the privacy and security of individuals against arbitrary invasions by government officials.