"BOOK'ER DANNO!!!!"

As Howard County Lawyers, the attorneys at Shapiro & Mack handle countless cases where individuals are arrested for possession of narcotics and other illegal contraband.  Many found substances, which are unidentifiable to the naked eye, are field-tested by police using a KN chemical reagent test.  If the color coding indicateds an illegal substance than they are seized and the possessor is arrested.  However, it has recently been brought to our attention that possession of chocolate, yes CHOCOLATE, could get one arrested and cost them thousands in legal expenses.  So can basil, thyme, and oregano and a slew of other harmless and completely legal food, drug, and cosmetic items.  Some people have and will find this out the hard way! 

Ron Obadia and his partner Nadine Artemis, co-owners of Living Libations Inc., a Canadian organic products business, are not drug traffickers.  However, on August 22, 2008, they were handcuffed, searched, arrested, and interrogated for hours at the Toronto Airport after a brick-sized sample of their raw organic chocolate product field-tested positive for THC with the most widely used color reagent test.

A Royal Mounted Police officer accused the couple of attempting to smuggle hashish, which chocolate hardly resembles, into upstate New York.  They were locked in separate rooms and their one-year-old baby was taken away from them, which is standard procedure in a drug arrest. The Canadian police Obadia and Artemis they were facing life in prison and each was told the other had already confessed (also standard procedure).  Both adamantly denied their chocolate contained marijuana.

Eventually, they were released on bond and their child was released to them.  “We’re not the kind of people who have a criminal lawyer on speed-dial,” Artemis said.

Still eager to market their products in New York, the couple tried again three weeks later to enter the United States, this time by car near Buffalo.  Agents were waiting with a narcotics K-9, which alerted on a bottle of tea tree oil, an organic plant product used as a natural disinfectant.  Incredibly, the oil field tested positive, and knowing that the couple had already been branded as smugglers, ICE decided it was “hash oil.” Of the 40-odd other products in their sample cases, the chocolate again tested positive for THC.

Subsequent lab tests fund that none of the products seized contained illicit/illegal drugs.  Their two attempts to break into the U.S. marked have cost Obadia and Artemins $20,000.00 in legal fees.

WHAT ON EARTH IS GOING ON HERE?

To answer that all important question, Obadial and Artemis joined forensic science writer John Kelly, chemist Krishna Addanki of Claflin University and a representative of Dr. Bronner’s Magic Soap Company at a news conference held by the Marijuana Policy Project on March 3, 2009 at the National Press Club in Washington, D.C.  The event was the release of Kelly’s Report, False Positives Equal False Justice, with actual demonstrations of drug field testing on order to raise public awareness of the false-positive problem.  Kelly claims the widely marketed field test kits are worse than useless, and that even when used properly can cause great harm to innocent people.

According to Kelly’s report, thousands of common foods, over-the-counter drugs, cosmetics, and household products will falsely test positive in police drug field tests because the reagent tests themselves are not drug-specific.

The most common test for cannabis and THC, the Duquenoise-Levine Reagent test, reacts strongly to cocoa products, it ths case a Hershey's Dark Chocolate Kiss.

 For example, the 70-year-old Duquenois-Levine reagent test – the one that cause the improper arrest of Obadia and Arthemis – is used by  nearly every federal, state, and local police agency in the U.S. and the RCMP in Canada.  According to tests done by Addanki and his advisor Dr. Omar Bagasra, besides cocoa products, the D-L test also reacts positively to eucalyptus, patchouli, and cypress.  Another test, the ODV Inc. KN reagent test, not only reacts positively to cannabis products but also to  numerous aromatic herbs and essential oils, including thyme, oregano, anise, vanilla, peppermint, ginseng, and event a simple piece of an unbleached napkin (I saw this with my own eyes at the Bronner’s booth at the 2009 green festival in Washington D.C.).

“No one should be using these faulty tests that we’re experimenting with here today, and the companies producing them should probably be put out of business,” Kampia opined.  Until a confirmation test, which could take weeks, proves negative for drugs, “you’re guilty until proven innocent.”

 This problem with non-specific field tests has led to their being excluded as evidence at trial; however there have been very few successful challenges to their use in establishing probably cause to arrest and hold suspects pending trial.  More problematic is the backlog in forensic labs in general, which is the only way to get the real test result.  The common result of these bogus field tests is that citizens will be forced to pay large sums of cash bonds and attorney fees, or, even more unfortunately, suspects can be held in jail for months until lab results are returned.
 
Unfortunately, there is little that can be done about this mounting problem other than to arm yourself with the knowledge necessary to understand how an innocent situation can go awry.  If you find yourself victim of an improper search or seizure contact Shapiro & Mack immediately for our swift intervention.

By: David Zwanetz, Esq., Assicoate Attonrney @ Shapiro & Mack.  Dave Z., also trains and competes in Brazilian Jiu Jitsu at Baltimore MMA school, Crazy 88 Brazilian Jiu Jitsu.

big trouble in criminal defense land!

By: David Zwanetz, Esq.

The exclusionary rule is a legal principle in the United States, under constitutional law, which holds that evidence collected or analyzed in violation of the defendant’s constitutional rights is sometimes inadmissible for a criminal prosecution in a court of law. It is prophylactic rule formulated by the judiciary in order to protect individuals’ constitutional rights. However, in some circumstances at least, the exclusionary rule may also be considered to follow directly from constitutional language, such as the Fifth Amendment’s command that no person “shall be compelled in any criminal case to be a witness against himself” and that no person “shall be deprived of life, liberty or property without due process of law.”

The exclusionary rule is designed to provide a remedy response to prosecutors and police who illegally gather evidence, in violation of the Constitution, by conducting unreasonable searches and seizure or compelled self-incrimination.  Clearly, as an attorney focusing exclusively in the area of criminal defense, specifically Howard County criminal defense, the exclusionary rule is paramount importance.  Unfortunately, however, the exclusionary rule is in grave jeopardy.   

While the assault on the exclusionary rule is currently gaining full steam, it began in 1983 with a young lawyer in the Reagan White House who worked vigorously on a “the campaign to amend or abolish the exclusionary rule.”  The Reagan administration’s attacks on the exclusionary rule never gained much steam. The problem is, however, that the young passionate lawyer from the Regan Administration was John G. Roberts Jr., and he is now the chief justice of the United States Supreme Court.

January 14, 2009, Chief Justice Roberts, writing for the majority in Herring v. United States, a 5-to-4 decision, took a big step toward the goal he proposed a quarter-century before. Taking aim at one of the towering legacies of the Warren Court, its landmark 1961 decision applying the exclusionary rule to the states, the Chief Justice’s majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggests that the exclusionary rule may become a legal remnant in the very near future.

The Herring decision “jumped a firewall,” said Kent Scheidegger, the general counsel of the Criminal Justice Legal Foundation, a victims’ rights group. “I think Herring may be setting the stage for the Holy Grail,” he wrote on the group’s blog, referring to the overruling of Mapp v. Ohio, the 1961 Warren Court decision.

Justice Samuel A. Alito Jr., joined the Herring decision and has been a reliable vote for narrowing the protections afforded criminal defendants since he joined the court in 2006.   Justice Alito replaced Justice Sandra Day O’Connor, who was considered a moderate in criminal procedure cases.  With Alito’s replacement of O’Connor, there could be enough votes to eradicate the exclusionary rule altogether.  The four certain votes are Chief Justice Roberts, Justice Alito, Justice Antonin Scalia and Justice Clarence Thomas, who is also an alumni of the Reagan administration.

The fate of the rule will to turn on the views of Justice Anthony M. Kennedy.  It has been said that the liberal and conservative wings are eagerly courting Justice Kennedy’s vote Kennedy’s vote, could settle the issue once and for all.  Now with Souter’s retirement on the horizon, we are entering a whirlwind of unknown possibilities. 
Currently, the United States takes a distinctive approach to the exclusionary rule, requiring automatic suppression of physical evidence in some kinds of cases. That means, in theory at least, that relatively minor police misconduct can result in the suppression of conclusive evidence of terrible crimes.  Other nations balance the two interests case by case or rely on other ways to deter police wrongdoing directly, including professional discipline, civil lawsuits and criminal prosecution.  This kind of multi-tiered approach seems to be where the Court is headed.
The Herring decision can be read broadly or narrowly, and its fate in the lower courts is unclear. The conduct at issue in the Herring case was an Alabama man, Bennie D. Herring, who was arrested on officers’ mistaken belief that he was subject to an outstanding arrest warrant.  However, he had no warrant – the mistake was due to poor recordkeeping in a police database rather than a mistake by an officer on the scene.  Herring was searched incident to the improper arrest and gun and drugs were found on his person.  The theory remains that Herring should have never been arrested, thus never searched, and thus, the evidence must be excluded. However, the Supreme Court held that because the misconduct leading to Herring’s arrest was “attenuated from the arrest” the search was valid. 

What this means is that while the exclusionary rule is still alive its veil is smaller and its Berlin wall of protection for victims of unconstitutional police misconduct had begun to fall.  The Herring decision is studded with sweeping suggestions that all sorts of police carelessness should not require, in Chief Justice Roberts’s words, that juries be barred from “considering all the evidence.”  A broad reading of these comments by the lower courts could invariably be the death of the exclusionary rule as a practical matter.

The nomination of Barack Obama is a proverbial sigh of relief for the defenders of the exclusionary rule and most, if not all, criminal defense practitioners.  At least for the time being, it appears that the five votes required to disavow the exclusionary rule will not be obtained. While I don’t like the result, I am in awe of Justice Roberts for beginning a quest in 1983 with the Regan administration and fighting his way, with that issue in his briefcase, to the most powerful position in the United States legal community where he can now, very seriously, finish what he began. 

This article was written by David Z. David Z. also trains and competes in Brazilian Jiu Jitsu at Baltimore MMA school, Crazy 88 Brazilian Jiu Jitsu.

ATTABOY!

By: David Zwanetz, Esq.

As a Howard County DUI practitioner I have handled countless cases where people have attempted to use their vehicle to sleep off a rough night of drinking and found themselves charged with DUI/DWI. It is of paramount importance to understand that “driving” for purposes of DUI law does not mean “driving” in the classic sense of the word. “Driving,” for legal purposes, is being in “actual physical control” of a vehicle. In this definition, the Maryland Legislature intended to differentiate between those inebriated people who represent no threat to the public because they are only using their vehicles as shelters, and those people who represent an imminent threat to the public by reason of their control of the vehicle. The benchmark Maryland case of Atkinson v. State, 331 Md. 199 (1992), describes six factors for Judges/Juries to consider when determining of one is in “actual physical control” of a vehicle:

1. Whether or not the engine is running or the ignition is on (strongest factor)

2. Whether and in what position the person is found in the vehicle

3. Whether the person is awake or asleep

4. Where the vehicle’s ignition key is located

5. Where the vehicle’s headlights are on

6. Whether the vehicle is located in the roadway or is legally parked

Thus, it is clear from the factors above, that one can be charged and convicted of DUI/DWI in Maryland without ever actually moving his or her vehicle. Getting into a cars driver’s seat, turning on the engine for heat, and falling asleep while drunk technically, legally, exposes one to a charge of driving under the influence or driving while impaired by alcohol. The only sure way to avoid a DUI charge in Maryland, or any state, is to never get behind the wheel of your vehicle, even if you don’t plan to move it, with any alcohol in your system. And if you plan to sleep things off in you’re vehicle, you should make sure your car is off and you’re somewhere other than the drivers seat.

This article was written by David Z. David Z. also trains and competes in Brazilian Jiu Jitsu at Baltimore MMA school, Crazy 88 Brazilian Jiu Jitsu.