Category Archives: Drug Offenses

Minnesota Cops Can Search Through Your Trash

They say one man’s trash is another man’s treasure, but in Minnesota, your trash could lead to a criminal conviction if you’re not careful. That’s because the Minnesota Supreme Court ruled that civilians have no expectation of privacy once their trash is placed outside for collection, according to a ruling handed down Wednesday.

The case in question involved David McMurray, a Hutchinson man who had his home raided after authorities found residue that tested positive for meth in his garbage bin. Authorities used the evidence to obtain a search warrant, and a subsequent search of McMurray’s home ultimately led to a criminal drug conviction.

McMurray’s legal team argued that the Minnesota Constitution offers greater protections to a person’s belonging than the U.S. Constitution, which protects citizens against warantless and unreasonable searches and seizures. Unfortunately for McMurray, the Minnesota Supreme Court did not interpret the state constitution as being more vigilant about a person’s fourth amendment rights.

“Any member of the public could have accessed McMurray’s garbage without trespassing on his property, and police do not need a warrant to search items that are exposed to the public,” the majority found. They also cited a ruling from the U.S. Supreme Court that states warantless searches of garbage are legal.

Dissenting Opinion

Two justices agreed with McMurray’s defense in a dissenting opinion. Justices David Lillehaug and Alan Page said that because a person’s garbage sometimes contains personal health of financial information, people have a reasonable expectation that those items will remain private. They also condemned the idea that police could obtain DNA evidence by rifling through a person’s trash. The justices wrote that police should need to obtain a warrant prior to examining someone’s trash.

“Our basic rights and liberties are at risk if government can seize and search Minnesotans’ household waste without a search warrant and, apparently, without even a reasonable articulable suspicion of wrongdoing,” Lillehaug wrote.

McMurray’s legal team said they were disappointed with the decision.

Related source: Pioneer Press

Crime Rates Fall, But Jails Still Filling Up

Although crime rates have declined significantly over the past few decades, admissions to local jails have almost doubled over the last 30 years, a clear sign that the current system isn’t working.

According to a report from the Vera Institute of Justice, local jails in the United States are grossly misused. Local jails are designed to hold individuals who have yet to be convicted of a crime but who have been deemed a flight risk or too dangerous to be out in public. Instead, the Institute says local jails are becoming prisons for the poor and mentally fragile.

The report suggests that 60 percent of those jailed are too poor to pay the minimum bail required for even minor crimes. Oftentimes these offenders are charged with crimes like drug, traffic or public order defenses, and they typically are plagued by one or more social problems, like substance abuse, poverty, homelessness or mental illness.

The Vera Institute Report believes the current system isn’t helping fix the real problem of mental illness.

“The consequences are corrosive and costly for everyone because no matter how disadvantaged people are when they enter jail, they are likely to emerge with their lives further destabilized and, therefore, less able to be healthy, contributing members of society.”

Hennepin County Sheriff Rich Stanek believes almost one-third of the 37,000 people Minnesota locks up every year have a serious mental illness.

“Obviously, jail isn’t the best place for treating mental disorders,” said Stanek.

Repeat Offenders

More lockup statistics from larger cities show that jail is often a revolving door for many inmates. A five-year study in Chicago found that 20 percent of inmates filled up half the jail cells, while during the same period in New York, 473 individuals were arrested 18 or more times. Researchers believe these repeat offenders continue to cycle back into jail because the legal system focuses on punishing the crime, not helping the perpetrator break the pattern.

“Punishing the criminal act is important, but there also needs to be intervention techniques to prevent it from happening in the future. Simply hoping that the prospect of lockup will deter a mentally unstable person from committing an act is unreasonable,” said criminal defense attorney Avery Appelman. “I liken it to the process of raising a child. For example, when a child acts out, you place them in timeout or withhold dessert, but you also explain why their behavior was wrong. Punishment needs to be paired with a teaching moment.”

Minnesota recently added a new law that said mentally ill inmates who have been charged with a crime can’t be held for more than 48 hours, but they oftentimes have nowhere to go upon release. Sen. Barb Goodwin said there are more than 500 psychiatric crisis centers across the United States that offer diversionary help in lieu of a jail cell, but none are located in Minnesota. Because of this, many mentally ill offenders end up homeless on the streets. To combat this problem, Se. Goodwin has proposed  SF 141, which would offer grants to counties interested in building division programs.

Related source: Star-Tribune

Marijuana Admission Latest Issue For Adrian Peterson

Adrian Peterson once again finds himself at the center of a legal scandal after prosecutors filed paperwork to have the running back arrested following an admission that he smoked marijuana, which would be a violation of his current probation.

Peterson told a drug tester prior to a routine drug test that he “smoked a little weed.” Prosecutors in the child abuse case acted quickly after hearing about the comment, filing a motion to have Peterson rearrested and his bail revoked.

“In light of this statement, and the fact that it was made during the urinalysis testing process, and the term ‘weed’ is a common slang term for marijuana, the state argues that the defendant has smoked marijuana while on bond,” the prosecution wrote.

Despite the motion, no action was taken as the presiding judge was scheduled to undergo a formal review after making comments about the attorneys, calling them “media whores.” The prosecution is attempting to have a new judge assigned to the case.

Marijuana Admission

As is customary when a person is freed on bond, the conditions of the release state that a person may not engage in certain activities. In cases of abuse or domestic violence, there are usually two main components of release. The first is that the defendant may have no contact with the victim or certain people related to the case, and the second is that they must refrain from engaging in illegal activities like drug possession.

Peterson was initially freed on $15,000 bond (for a clearer idea of how bail bonds work, check out our previous post), but his latest incident could result in its revocation. If that were the case, Peterson would be jailed until the conclusion of his case. His case is currently set to go to trial on December 1.

Peterson could face up to two years in state prison if found guilty on the charge of felony child abuse. Even if he avoids jail as part of a plea agreement or reduced charges, he could still face discipline from the NFL, who recently enhanced its personal conduct policy.

Related source: ESPN

Vikings Cut Simpson After Marijuana Arrest

The Minnesota Vikings parted ways with troubled wide receiver Jerome Simpson on Friday after it was revealed he was arrested for marijuana possession this offseason.

Simpson would have rejoined the team today after being suspended for the first three games of the season for a DUI arrest, but the team decided to cut the problemed receiver before he could be reinstated.

Already embroiled in the controversy surrounding suspended star running back Adrian Peterson, head coach Mike Zimmer issued a statement saying the team wants to find players who are committed to being examples on and off the field.

“We’re going to look for high-quality guys. We’re going to keep guys who care about football, guys who are passionate about playing the game. We’re going to continue to get those guys and keep working. There’s really nothing I can do about what everybody else says. All I can do is what I think is best at the time,” Zimmer said.

Latest Incident

Simpson’s most recent run-in with the law occurred on July 7 when he was stopped in Bloomington, Minnesota. According to the arrest report, Simpson was charged with possession of marijuana, driving with an open intoxicant, and violating driving restrictions.

Instead of being open about the arrest, Simpson decided to keep the incident under wraps. Head coach Mike Zimmer was informed of the incident on Thursday, and unlike other NFL executives, he decided to take swift action and release Simpson from his contract the following day.

This is the second time Simpson has been found to be in possession of marijuana. In 2012, authorities intercepted a 2.5-pound package of marijuana en route to the wide receiver’s home. He received a three-game suspension from the NFL for that incident as well. Simpson again faces the possibility of a suspension for his latest arrest.

Simpson is set to make an initial appearance in Hennepin County on November 3.

Ex-Packer Lyerla Arrested For Drugged Driving

The Green Bay Packers usually avoid signing players with a history of run-ins with the law, but they made an exception when the signed former Oregon Ducks tight end Colt Lyerla as an undrafted free agent this offseason. Lyerla showed flashes of potential while at Oregon, but he left the program midway through the season after being arrested for attempting to flee police officers and possession of cocaine.

The Packers brought him into training camp, but a knee injury made him expendable and he was eventually released before the season began. Although he received a nice little six-figure injury settlement, it appears Lyerla couldn’t stay out of trouble off the field as he was arrested over the weekend for driving under the influence of intoxicants.

Although the full arrest report has yet to be released, The Oregonian reports that Lyerla was high on illegal drugs or medication at the time of his arrest. His first court appearance is scheduled for September 17.

Drugged Driving

Driving under the influence of drugs carries serious consequences. Had Lyerla been arrested in Minnesota, he would have faced misdemeanor charges of driving under the influence, which carries the following penalties:

  • Up to 90 days in jail.
  • Up to $1,000 fine.
  • Up to 180 days of license suspension.

Since Lyerla already has a “fleeing an officer” and drug possession arrest on his record, odds are the judge wouldn’t have felt the need to go easy on the young man. The fine would be of little impact to Lyerla, whose injury settlement paid him just south of $150,000, but jail time or a license suspension would act as a serious burden for a player who, at this point, would be lucky to get another look by an NFL team.

I expect that Lyerla will spend a few days in jail for this arrest, and I believe his NFL career is over. His talent on the field is not nearly good enough to outweigh the headcase that he is off the field. I hope he gets the help he needs to make the transition from BMOC to the real-world.

Related source: The Oregonian, ESPN

Minneapolis Holds Summit on Heroin Prevention

Some of Minnesota’s top influencers including prosecutors, law enforcement officials, medical experts and drug treatment specialists were in Minneapolis on Thursday in an effort to devise strategies to combat a growing heroin issue.

Although the rise in heroin use isn’t isolated to Minnesota, the state is one of the first to hold a statewide meeting to discuss its implications and attempt to prevent its spread. Contrary to other drugs like marijuana or cocaine where police spend months looking for the big suppliers, U.S. Attorney Andy Luger suggests police should focus their attention on smaller heroin dealers, the ones who sell to users who eventually overdose. He also added that dealers charged in overdose deaths should be handed over to federal prosecutors, as a federal conviction would guarantee a longer sentence. Luger believes police focus on these dealers and the threat of serious jail time could cripple the heroin market.

“We want to make Minnesota an inhospitable place to do business,” Luger said. “Many parts of the country have missed the boat on how to deal with heroin.”

Concerning Trend

Overdose deaths due to heroin use and other opiates are on the rise in Minnesota. Hennepin County is already on pace to surpass last year’s record high of 56 heroin overdose deaths, and the county reported 132 opioid-related deaths in 2013.

One way the city is attempting to prevent overdose deaths is by distributing Narcan, a drug that can temporarily reverse the potentially lethal effects of heroin, to EMTs and first responders. Dr. Marc Conterato, an emergency physician at North Memorial Medical Center, said ambulances are now always stocked with Narcan.

“Narcan has been given to people as young as 14 and as old as 72,” said Conterato. “Ten years ago, Narcan wouldn’t have been one of the medicines stocked in an ambulance.”

Another debate near the end of the summit revolved around whether or not someone who witnesses a heroin overdose should be immune to prosecution if they call 911. Currently, a law called Steve’s Law, which also allows first responders to use Narcan on an overdose victim, provides callers with limited immunity. Hennepin County Sheriff Rick Stanek said there’s pros and cons of either argument, but at the end of the day, a person shouldn’t lose their life because a friend feared jail time for calling 911.

“Bottom line is that we are in the business to save lives,” he said. “It’s a public policy issue.”

Related source: Star-Tribune

Minnesota Extends Fourth Amendment Rights to Civil Cases

The Minnesota Supreme Court has expanded search and seizure protections in civil cases after authorities went beyond their legal rights while collecting evidence to create their case.

The Minnesota Supreme Court ruled in favor of the citizen in two separate cases that limit when a cop can legally search seized property. In the first case, Daniel Garcia-Mendoza was stopped for driving 63 mph in a 60 mph zone. The officer asked Garcia-Mendoza for his vehicle registration and found the car was registered to Ricardo Cervantes-Perez, an alias of Garcia-Mendoza. Daniel procured a Mexican ID showing the alias, but he didn’t have a valid license.

The officer decided to have the vehicle towed because he believed it was creating a traffic hazard. Prior to towing the vehicle, the officer searched the vehicle and found a small amount of methamphetamine. Garcia-Mendoza was arrested, and authorities also seized $611 he was carrying with him at the time.

Garcia-Mendoza filed a claim to regain possession of his car and cash. While he was waiting for the court to process his request, he pleaded guilty to a federal crime of distributing a controlled substance from a 2011 charge. As part of that agreement, he agreed to forfeit all property used to commit the crime.

When it came his turn to challenge the seizure of his car and cash from the latest incident, a District Court judge ruled the stop unconstitutional, but said the forfeiture would remain because of his previous agreement from his guilty plea. His attorney challenged the ruling in Appeals Court, citing the exclusionary rule, but the Appeals Court sided with the District Court.

Garcia-Mendoza’s attorney filed one last appeal with the Minnesota Supreme Court, arguing because the stop was illegal, police should not have been legally able to seize the property. In a monumental decision, the Minnesota Supreme Court sided with the little guy, ruling that the exclusionary rule – a law that states illegally obtained evidence is inadmissible in a criminal trial – must also extend to civil cases.

Second Case

Another local case extended 4th Amendment protections in regards to searched vehicles that were improperly impounded.

In this case, a Blaine police officer stopped Erica Rohde for a turn signal violation. A subsequent check revealed Rohde was operating the vehicle without a valid license or registration.

When she initially saw the police lights in her rearview mirror, Rohde pulled over to a residential side street.  She stopped along the curb in a valid parking spot, but authorities decided to impound her vehicle anyways. Once at the impound lot, police searched the vehicle and found two small bags of meth and two glass pipes.

Rohde challenged the evidence collection, agreeing that although her stop had been legal, the subsequent search was unconstitutional because authorities were not within their right to impound the car. The Minnesota Supreme Court sided with Rohde, noting that her parked vehicle posed no safety threat to other drivers. They sent the case back to Anoka County District Court with the recommendation the evidence be suppressed.

Avery Appelman comments

These are both great rulings for citizens and for our Fourth Amendment protections. In the end, the Minnesota Supreme Court is basically saying, “The ends do not always justify the means.” Even though the officers found drugs in the vehicle, they did not follow individual protections guaranteed by our forefathers in the constitution.

Everyone else has to follow rules at their job. Cops must do the same. In the end, this ruling will make officers better at their job, which everyone will benefit from. I applaud the Minnesota Supreme Court for upholding citizen protections.

Related source: Star-Tribune

Minneapolis Warrant Crackdown Coming Tuesday 

Do you have an outstanding warrant in Hennepin County and want to avoid an awkward scene at your home or place of work? You should strongly consider turning yourself in today.

That’s because the Hennepin County sheriff’s office will be conducting a warrant sweep on Tuesday in hopes of clearing some active warrants out of the system.

“Do not become a fugitive of the law by ignoring a warrant,” said Sheriff Rich Stanek. “It’s not going to go away on its own. You need to make the right decision and turn yourself in before officers come knocking at the door because we will make sure you are held accountable.”

Stanek said the warrant sweep will focus predominantly on offenders facing drug-related charges as Minneapolis has seen a spike in drug-related deaths over the last few years. 17 deaths were attributed to heroin in Hennepin County in April alone, putting the city on pace to set a record number for heroin-related deaths in 2014. Last year set the previous record with 56 heroin-related deaths.

The Hennepin County sweep will begin on Tuesday and continue throughout the end of the month. Stanek noted that his office would be looking for roughly 160 people with active felony warrants, many of whom have multiple active warrants.

More details about the sweep can be found at the Hennepin County Sheriff’s Office website, including where to go to turn yourself in and what to bring so you can post bail if necessary.

We handle cases in Hennepin County and are more than willing to assist you throughout this process. If you have questions about the process or your charges before surrendering to police, please give us a call at (952) 224-2277 or contact us through our website. You don’t have to go through this alone, and being proactive about your warrant will put you in good graces with the court. Let us help you get your warrant cleared up.

Related source: CBS Minnesota

Judge Throws Out Drug Charge Over False Police Testimony

Prosecutors in Florida dropped drug trafficking charges against a 26-year-old after a judge threw out an officer’s incredibly inaccurate statement that he called “discredited, controverted, and contradictory.”

The case is a great example of due process and proper application of the Fourth Amendment by the presiding judge. According to case details, Emanuel Bell was stopped for rolling a stop sign after authorities observed him leave a “known drug house.” An officer ordered Bell out of the vehicle after he observed him moving his hands near the center console. The officer decided to search the console, even though Bell expressly told the officer he did not consent to the search.

The quick search of the vehicle did not turn up any suspicious items, but the officer was not satisfied. While the officer went to his squad car to write Bell a ticket, Officer Brandon Bill approached the vehicle and claimed to smell a faint odor of marijuana. This gave him all the probable cause he needed to conduct a full search of the vehicle, which led to the discovery of a small amount of cocaine in the car. The officers placed Bell under arrest on charges of drug trafficking.

Judge Notices Discrepancies

Upon a review of the evidence, Circuit Judge Michael Andrews noticed some concerning findings. He learned that:

  • No other officers reported smelling marijuana.
  • No marijuana was found in the car.
  • Bell was detained for 25 minutes, much longer than need be for a routine traffic stop.
  • An officer threatened to use drug dogs to get the necessary probable cause to search the vehicle.
  • One officer referred to Bell, who is black, as “boy,” while another accused him of being a criminal informant.
  • Police did not allow the suspect to call his attorney.

After reviewing all the facts, Judge Andrews issued an unusual statement.

“It stretches the limits of credulity for this court to believe that the search of the defendant’s vehicle was based upon the odor of marijuana,” Andrews wrote. “Here, Officer Bill’s testimony is ‘discredited, controverted and contradictory within itself,’ and as such is incredible.”

Not surprisingly, prosecutors dropped the charges shortly thereafter.

Mel Welch comments

Essentially, a male leaving a “known drug house” was stopped by police for failing to make a complete stop and was held until officers created an excuse to search his vehicle. Police did not receive consent to search the vehicle and the officer alleged the basis for the search was – “he smelled the odor of marijuana.” Sound familiar? The officer left out details in his report which came to light through the contested hearing (officer stated stop was only minutes – actually lasted over 25 minutes; police would not allow the suspect to call his attorney and took his phone; police accused the suspect of being a narc).

In Minnesota, police may stop a vehicle for any traffic infraction (like here – a rolling stop), and likewise they are only supposed to hold a person for as long as it takes to resolve the basis of seizure, and police may not expand the scope of a seizure unless they develop independent bases of suspicion. Here, the officer had to find independent bases of suspicion beyond the traffic violation. The odor of marijuana is always a good go-to for police because: (1) it pits the cops credibility against the suspect’s credibility (because you cannot record smells for independent verification; the suspect has something at stake to challenge the veracity of his testimony; and the officer is supposedly free of any bias in his investigation), and (2) the odor of marijuana has been upheld by the Minnesota Supreme Court to justify a search of an entire vehicle.

Thankfully the judge here gave the report a second look. There was no marijuana found in the vehicle, and the police reports were inconsistent with the objective facts. The judge took his role seriously: as an arbiter of credibility and truth rather than a facilitator of the criminal process. Kudos.

Related source: Tampa Bay Times

Constitutional Freedoms, Great Lawyering Help Win Court Case

justiceMel Welch used his extensive knowledge of the U.S. Constitution and case law to earn a hard fought dismissal when the odds were stacked against him. He once again proved that evidence needs to be collected legally in order to be admissible in the court of law.

The case in question involved a client who was suspected of possessing and selling drugs. Police officers had legally obtained a search warrant of our client’s premise, and they set up a perimeter around his home to aid in the search. Unmarked officers positioned themselves in front of our client’s house, while a regular patrol car was parked out of sight on a side street to help in the event the suspect fled and to keep watch on the neighborhood activities while the search was executed.

Before the officers could complete the search, our client left his home and got into a van parked nearby. Shortly thereafter, our client exited the van and got into his own vehicle. He then drove away, and the marked squad car followed.

Michigan v. Summers

Before we go any further, now seems like a good place to explain the court case Michigan v. Summers, and its relation to Bailey v. U.S. In the case of Bailey v. U.S., which discussed the protections guaranteed in the 4th amendment, the judge ruled that “some seizures admittedly covered by the Fourth Amendment constitute such limited intrusions on the personal security of those detained and are justified by such substantial law enforcement interests that they may be made on less than probable cause, so long as police have an articulable basis for suspecting criminal activity.”

In other words, the court ruled that some searches are legal even if the officers don’t have probable cause to execute the search, so long as it meets certain conditions. Those conditions were made expressly clear in the case Michigan v. Summers, which established three factors that, if present, could provide an exception to the probable cause requirement. They are:

1. Law enforcement’s interest in preventing flight in the event incriminating evidence is found.

2. Interest in minimizing the risk of harm to the officers.

3. To facilitate the orderly completion of the search.

Remember these three exceptions to the probable cause requirement. They’ll come in handy in just a bit.

Legit Search?

Back to the story. Our client got in his car and drove away while officers were in place to initiate the search warrant, but before it was executed. The marked squad car began following our client, and pulled him over a few miles away. The officer took our client into custody, and the police drove our client’s car to a nearby parking lot. During this time, drugs were uncovered in our client’s vehicle.

Mel looked at all the evidence against his client and went to work. He sought to suppress the evidence that drugs were found in the vehicle by questioning why his client was pulled over and detained in the first place. He argued that officers had no probable cause to stop his client, and he also did a magnificent job discrediting the exceptions outlined in Michigan v. Summers.

In his argument against Exception #1, Mel reasoned that since his client was unaware of the impending search, and because it had yet to take place, he couldn’t possibly comprehend the thought of fleeing the scene. The presiding judge agreed.

In his argument against Exception #2, Mel correctly argued that officers are much safer executing a search warrant when nobody is home than if the suspect if present. By leaving his residence, Mel’s client unknowingly created a safer environment for the officers who were about to execute the warrant. Mel noted that had the police found weapons or contraband in the residence as part of the legal search, they would have had reason to stop his client, but that was not the case. The presiding judge agreed.

In his argument against Exception #3, Mel stated that Bailey rejects the notion that seizing an individual without probable cause helps facilitate the orderly completion of a search when a suspect departs before a search. An absent suspect can neither hinder a search nor help with its orderly execution. While it may be more convenient for officers to have the suspect in custody, Mel made our forefathers proud by arguing that convenience to law enforcement will never substitute for a person’s 4th Amendment considerations. The presiding judge agreed.

After hearing Mel’s reasoning, the judge had little choice but to suppress the evidence obtained through the unreasonable search and seizure.

Well done, Mel.