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


  1. Brian,

    Thanks for bringing this to light. I've commented on it here.

    Defending People Blog

  2. Daniel Dalton10:10 PM

    I just discovered your blog, and am not ashamed to admit that I spent the last few hours going through every post. Excellent reading. I dare say, I'm a fan. As a new member of the bar (3 years now), I enjoyed reading the insights and opinions of someone that actually has been there and done that. I particularly like this post, and thought you would like to read an opinion from Illinois where the dissent took the Illinois State Trooper to task. http://caselaw.lp.findlaw.com/data2/illinoisstatecases/app/2007/3050420.pdf

    Daniel Dalton
    Rock Island, Illinois