A blog by Miami Criminal Defense Lawyer Brian Tannebaum. Commenting on criminal law issues of local and national interest.

Monday, April 30, 2007


CASE NO. 2007MM001698AXX

THIS CASE came before the Court for a Non-Jury Trial on April 19, 2007.
Defendant, charged with possession of less than 20 grams of marijuana, representedhimself; the State was represented by Seth A. Kolton, Assistant State Attorney.
The Court took testimony from two police officers. Defendant testified in his own
The prosecution of marijuana cases continues to be a significant component of the war on drugs. For example, FBI statistics showed that the total number of arrests for marijuana offenses was higher in 1997 than in any prior year in this nation’s history. In that year alone, state and local law enforcement agencies reported 695,201 marijuana arrests, of which 87 percent were for possession only.
In his judicial indictment of the war on drugs, Judge James Gray citing this statistic, remarked as follows:
“Simple arithmetic yields the staggering statistic that someone is arrested for a marijuana offense somewhere in the United States every forty five seconds.”1
More recently, the New York Times estimated that marijuana arrests have reached three quarters of a million annually.
According, to the National Household Survey, about 18 million Americans used
marijuana at least once in 1997, and more than 71 million had used marijuana at some time in their lives.
The war on drugs has clearly been a bipartisan effort. Although President Clinton was the first President to admit having put a joint in his mouth, marijuana arrests continued to increase during his administration.
Nor have the events of September 11th, 2001, and the subsequent war on terror
diverted law enforcement resources away from the search for marijuana. As Judge Gray notes, it was Attorney General Ashcroft in the post 911 era who proudly announced the success of “Operation Pipe Dream,” a nationwide roundup of bong and roach clip manufacturers.
Oddly enough, Judge Gray reminds us that the first American law about marijuana, passed by the Virginia Assembly in 1619, required every household to grow it as hemp was considered a valuable commodity.
Notwithstanding the widespread use of marijuana, and the resulting arrests and
prosecutions, trials in misdemeanor marijuana cases are rare in Palm Beach County. In most cases, the accused is found in actual possession and the litigation, if any, in these cases centers on search and seizure issues rather than the issue of guilt or innocence.
The rarity of trials is also a product of the state’s lenient plea offers, most often involving court cost assessments, or deferred prosecution agreements that permit offenders to avoid an adjudication of guilt, thereby avoiding a mandatory two year driver’s license revocation which is triggered by a conviction for possession of any quantity of marijuana, no matter
how small.
Against this backdrop, we turn to the events of this case and examine the war on
drugs closer to home.
At about one o’clock in the morning on January 23, 2007, two deputy sheriffs were in a marked vehicle on Australian Avenue in West Palm Beach. It should be noted that these deputies are and were assigned to the “Violent Crimes Task Force.” From their testimony it is apparent that their main responsibility is “aggressive traffic enforcement” that can lead to the discovery of weapons, outstanding warrants, and contraband drugs.
There is no question that the officers appear to be honest and zealous in their
mission to take drugs off our streets. It is also apparent that their mind set appears to be that even minor traffic infractions are likely to lead to the discovery of narcotics. Australian Avenue is apparently perceived as part of the war zone, at least in the early morning hours.
At the same time, the Defendant, Mr. Bertram Williams, is driving down Australian Avenue in the area of 15th Street. He is a black male and is pulled over for a tag light violation. Although the legality of the stop in this case is not at issue, this judge, for sixteen years, in his courtroom has been haunted by the image of African American motorists being detained by police officers for minor equipment violations.3
Mr. Williams, it turns out, has worked as a sky cap for the past 17½ years at Palm Beach International Airport. He is well mannered and soft spoken.
The officers approach Defendant’s vehicle cautiously - one deputy on the driver’s side; one deputy on the passenger side. Defendant cooperates and produces a valid driver’s license. Allegedly, the officers detect an odor of marijuana emanating from the vehicle (an allegation that is omitted from the probable cause affidavit filed in this case).
The Defendant cooperates as he is frisked for weapons. He has no weapons or
contraband on his person. Asked for consent to search the vehicle, he gives it with no hesitation.
The police find marijuana in the vehicle. Defendant adamantly denies knowledge of it to the deputies at the scene.
The testimony is undisputed that Defendant was driving a family member’s vehicle, that Defendant did not smell from marijuana; nor did he exhibit any signs of being under
the influence of marijuana or anything else.
There is no evidence that any of the marijuana was warm to the touch or recently consumed.
Defendant testified rather credibly that he does not do drugs, smoke cigarettes or drink alcohol, that he coaches athletics in his spare time and wants to be a role model for his children.
Defendant had appeared in court three times prior to the trial and rejected offers to avoid an adjudication of guilt by merely paying court costs or entering the PTI Program.
In the words of the Defendant, he “was not raised to say he was guilty of something he did not do.”
As a general rule, where the state’s evidence of constructive possession is all
circumstantial, it is for the trier of fact to decide whether the evidence excludes every reasonable hypothesis of innocence. As the trier of fact in this case, the Court answers the above question in the negative. This Court believes it is reasonable to believe the marijuana butts belonged to and had been smoked by Defendant’s brother who routinely drove the vehicle. Defendant’s mere proximity to the contraband standing alone is not enough.
Undoubtedly, the officers in this case are well intentioned in their commitment to the war on drugs. However, the spectacle of two members of the Violent Crimes Task Force investigating a tag light violation warrants some scrutiny by our citizenry.
Drug prosecutions inevitably involve search and seizure issues that require courts to assess the credibility of police officers. Trial judges routinely remark to each other how amazing it is that so many drug users leave their drugs in plain view and voluntarily consent to searches that will incriminate them. More significant, however, are the comments by some experienced law enforcement officers regarding this issue. Joseph McNamara, the former police chief of both San Jose and Kansas City expressed his concern about the collateral effect of the war on drugs in a 1996 editorial comment entitled “Has the drug war created an officer liars’ club?” In this case, the Court does not find that the officers lied or misled the court in any way. However, as Chief McNamara notes, less honest officers can be easily tempted to tailor their testimony to meet legal requirements for successful drug prosecutions.
The prosecutor in this case argues that Defendant’s guilt was established when it was shown that he was driving a vehicle that smelled from marijuana. The tragic reality, however, is that notwithstanding the war on drugs, narcotics, including marijuana, are everywhere and one is not guilty of a crime merely because he or she is in a place where drugs are found. Remember, 18 million Americans used marijuana at least once in 1997.
The extent to which drugs have permeated our community was noted by the Chief Judge of Florida’s Third District court of Appeals back in 1991 when he wrote that trace amounts of cocaine may be found innocently on “almost everything in South Florida”, Jones v. State, 589 So2d 1001 (Fla. 3rd DCA 1991).
Fortunately, the appellate courts of this state have carefully scrutinized constructive possession cases. For example, it has been found that the mere presence of the odor of marijuana is not sufficient evidence of knowledge, Metzger v. State, 395 So2d 1259 (Fla. 3rd DCA 1981); that “mere proximity to contraband is not enough to establish dominion and control. Rather to prove dominion and control, the evidence must establish the defendant’s conscious and substantial possession, as distinguished from mere or superficial possession of the contraband,” Isaac v. State, 730 So2d 757 (2nd DCA 1999, at p. 758.
The State’s contention that the Defendant committed a crime because he operated a vehicle that smelled of marijuana is a dangerous argument. Applied literally, it calls for punishment for conduct that does not involve any criminal intent. And, as noted above, anyone adjudicated guilty of possessing a minor amount of marijuana loses his driving privilege for two years pursuant to Florida State law.
In publishing this verdict, the Court has included commentary that admittedly may not be relevant to the question of whether the Defendant committed a crime. This commentary should not be construed as an indictment of the officers who arrested the Defendant or the state attorney for prosecuting the case. This judge is deeply concerned about the threat that drugs pose to our society, and particularly to our children, and, therefore, appreciates the motivation and good intentions of the police and prosecutors who bring these cases to court. However, as Judge Gray so eloquently writes, “although the war on drugs makes for good politics, it makes for terrible government.”
In this one case, the Court finds the Defendant not guilty. Undoubtedly, the state
will prevail in many other marijuana cases that will come before this Court in the future if the accusation is proven. This judge is sworn to uphold the laws not to write them. The more important questions to be resolved are whether the war on drugs as it is presently being conducted is doing more harm than good and whether it is effective. Those questions can be answered only by the Legislature, not the Courts, and certainly not by this judge.
DONE AND ORDERED in West Palm Beach, Palm Beach County, Florida, this
________ day of ________________, 2007.
County Court Judge

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Sunday, April 29, 2007

Bush Administration: Gitmo Problems Caused By Defense Lawyers

When will they stop? Why do I ask?

As you probably know by now, there is a Justice Department proposal (i.e. Alberto Gonzales) to limit lawyers' access to Gitmo detainees. As reported by AP, the department said attorney access via the mail system has 'enabled detainees' counsel to cause unrest on the base by informing detainees about terrorist attacks. The New York City Bar calls the allegations false.

''This is an astonishing and disingenuous assertion,'' the association president, Barry M. Kamins, wrote Gonzales.

''Blaming counsel for the hunger strikes and other unrest is a continuation of a disreputable and unwarranted smear campaign against counsel,'' according to the letter.

On Thursday, American Bar Association President Karen J. Mathis criticized "arbitrary restrictions concerning the number of times and the ways that lawyers may confer with their clients in Guantánamo.''

I'm so tired of this.

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Thursday, April 26, 2007

Willie Nelson's On The Road Again


Willie Nelson and his tour manager were spared jail time Tuesday after pleading guilty to a misdemeanor count of marijuana possession.
Nelson and tour manager David Anderson, along with Nelson's sister, Bobbie Nelson, and two drivers, were issued citations on Sept. 18 after Louisiana state troopers said they found marijuana and hallucinogenic mushrooms on the country legend's tour bus during a commercial-vehicle inspection on Interstate 10.
State District Judge Paul deMahy fined Nelson and Anderson $1,024 each and put both on probation for six months. As part of a plea agreement, the citation against Bobbie Nelson was dismissed.

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit http://www.tannebaumweiss.com/

Tuesday, April 24, 2007

Dear Clients,

1. I am your lawyer.

You have my 24 hour phone number and I ask that you use it if you have questions before you try to figure out the answer yourself.

2. No one else is your lawyer. Your bondsman, significant other, good friend, boss, "friend in New York that's a lawyer," or person you know who “has a good friend that is a lawyer,” is not your lawyer.

3. If someone listed in #2 tells you something that causes you concern, read #1.

4. Calling me.

If you call my office looking for me in the mornings, you will quickly develop an opinion that I am never in the office. I am in court at least 3 mornings a week. Unless I am in trial, I am usually in the office after 2 p.m., Try me then. If you leave me a message on my cell phone voice mail, I will receive it. If you leave a message at the office, it will be sent to me immediately. This information is provided to avoid the occasional routine of calling every hour to learn whether I have received the message.

5. Me calling you.

If I do not call you back right away, it is only for three reasons:

a. Your message did not require an immediate return call, or;

b. I am not able to call you back right away, or;

c. I am on vacation and your message did not require an immediate return call.

6. Vacation? Aren’t you going to be in town every day during the pendency of my case?

No. I can assure you though that during any vacation there will be no hearings, depositions, trials, or any other significant developments in your case that will require my presence. You should consider a vacation as well.

7. Just because a certain result happened in your friend’s case, does not mean it will happen in your case. Even if you tell me 6 times.

8. There won’t always be something going on in your case.

Many times I receive messages from clients saying “What’s going on in my case?” Sometimes we are just in a waiting period. Waiting to receive evidence, waiting to take a deposition, or waiting for court. If you want your case over immediately, go plea guilty now.

9. I will never forget that you are my client and that you have a pending case.

I am not a part of a large law firm, and I do not have hundreds of clients at any one time. My goal is for you to think you are my only client, but you are not. If you cannot understand that I have to meet with other clients and do work on their cases as well, go to law school and be your own lawyer. You can spend all the time with yourself you wish.

10. There is one rule to follow that will relieve your anxiety.

Everything will take longer than expected.

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Saturday, April 21, 2007

Gonzales & Nifong, Attorneys At Law

Attorney General Alberto Gonzales cannot remember, (known in congressional hearings as "I can't recall") the fact that he was intimately involved in the firing of 8 U.S. Attorneys.

Mike Nifong at least understands that he used the power of his office to prosecute innocent people. He says he's "sorry."

They are both "sorry."

Everyday I hear "that's what makes lawyers look bad." Sometimes that comment is made when lawyers actually do things that make lawyers look bad, like lie (see above), and, cheat (see above). Many times its made when lawyers do things they are supposed to do, like obtain not guilty verdicts or large monetary settlements.

Now we have two lawyers, the highest officer of the Department of Justice, and an elected District Attorney, that are the best evidence of what makes lawyers look bad.

Alberto, you're not being honest, we all know it, I hope next Saturday I'm writing about your resignation.

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Monday, April 16, 2007

Wednesday, April 11, 2007

Glen Beck's Importance To The Duke Rape Case

So this is the criminal defense blog, and today because one of the biggest embarrassments in the criminal justice system ended, I guess I'm supposed to say something about it.

But I want to talk about Glen Beck, because besides the important statements of the North Carolina Attorney General, the officials at Duke University, and the former defendants, Glen Beck asked some important questions this morning on his radio show.

He passionately and repeatedly asked why the civil rights leaders of America are not more vocal about what happened to these students.

I laughed, and no Glen, I wasn't laughing at you, I was laughing at the notion that people really care enough about what happened today to do anything.

With the advent of DNA, innocent people are exonerated more and more, yet where is the outrage? There is some, but it is insignificant.

Today, we are all about Law and Order, both on and off TV.

I recently came back from a trip with my kids to Colonial Williamsburg. You know what the longest line was for? The restaurants? The re-enactments of battles and other historical meetings? The demonstration of how they made chocolate? No, the longest line was for the trial in the courthouse.

As a criminal lawyer, everywhere I go I am asked about whether I watch "Law and Order." Why is there so much excitement over Fred Thompson running for President? Is it that he's a strong leader, smart on policy issues? No, he's on "Law and Order."

We are all about Law and Order. Glen Beck, you know that it is the media pundits like Nancy Grace and others that have "taught" us that the Constitutional Presumption of Innocence is for the courtroom only. Not for the general public when watching TV, or out socializing. Many a time I have heard media pundits say "I don't have to presume him innocent."

We savor the downfall of people in this country. We are told that "guilty" means guilty and "not guilty" does not mean innocent.

We in America have no interest in the innocent, only the guilty. When someone is arrested, it is front page news, most of the time when exonerated, except in the Duke or other high profile cases, it is on the back page, if it is published at all.

You watch Glen, there will be people that will profess the guilt of these poor destroyed boys regardless of what happened today. Some in the media, who are the only "teachers" of law that some people have, will create an atmosphere that will allow a great deal of people to say "well, I still think they're guilty."

There is little respect for the criminal justice system in our country anymore. TV has taught us to believe that everyone's guilty and they are guilty in an hour.

I think I heard you Glen crying out for those who should scream at the top of their lungs about this case as an example of the horrors of injustice.

I'm listening, but I don't hear much.

Will Sanjaya win American Idol?

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com

Saturday, April 07, 2007

Florida Governor Crist Keeps Commitment to Automatic Restoration of Civil Rights, Angers Conservatives

A few years ago, when the Florida Legislature was considering the abololition of the "withhold of adjudication" (a rareity in criminal justice, much like non-unanimous death verdicts that we have in Florida), then Attorney General Crist told me "that's ridiculous, everyone deserves a second chance."

I thought that to be a bold statement for a republican, tough on crime being part of the mantra. At the same event, another republican responded to me when I brought up faults in the death penalty system which have caused innocent people to be put on death row, "I think the problem is all these appeals they get."

This week Florida adopted the policy of automatic restoration of civil rights for all felons, except for criminals who have committed murder, manslaughter, DUI manslaughter, sexual battery, lewd and lascivious crimes, child abuse, treason and terrorism.

And man, are the conservatives mad. Wonder if it has anything to do with the fact that these restored felons may not vote for those who spent the last many years instituting draconian sentencing schemes.

Brian Tannebaum is a criminal defense attorney in Miami, Florida practicing in state and federal court. To learn more about Brian and his firm, Tannebaum Weiss, please visit www.tannebaumweiss.com