Drug Crimes

Eighth Amendment Challenge to Drug Free Zones

Supreme Court of Tennessee Blog posts:

A groundbreaking constitutional challenge has been filed regarding Tennessee’s “Drug Free School Zone Act,” a flawed but well-intentioned law that has recently come under fire by several conservative groups because it “ensnare[s] many individuals who fall outside of the scope and purpose of the law” and has resulted in significant collateral consequences that have been “passed on to taxpayers without any public safety returns.” The law has long been a target of criminal justice reformers, who have argued that the severe, mandatory minimum penalties contemplated by Tennessee’s School Zone law fail to make appropriate distinctions between people who sell drugs to children and people who don’t.

Alabama has a similar statutes which may be subject to similar constitutional attack because it suffers the exact same defects.

In addition to any penalties heretofore or hereafter provided by law for any person convicted of an unlawful sale of a controlled substance, there is hereby imposed a penalty of five years incarceration in a state corrections facility with no provision for probation if the situs of such unlawful sale was on the campus or within a three-mile radius of the campus boundaries of any public or private school, college, university or other educational institution in this state.

The Alabama statute imposes a mandatory (not eligible for probation) if the sale occurred within 3 miles of a public school regardless whether a child was involved in the sale. (There is a similar statute for sales on or near public housing.)

Constructive vs Actual Possession of Drugs

In a fair majority of drug possession-type prosecutions, the accused Defendant did not have drugs in his pockets or in his hands (or in his mouth as have several of my clients) In the initial consultation, I always have to discuss what is called “constructive possession.” The Supreme Court of Alabama has held that “[i]n order to sustain a conviction for possession of controlled substances, there must be sufficient evidence of either actual or constructive possession.” Radke v. State, 52 Ala.App. 397, 293 So.2d 312 (1973), affirmed, 292 Ala.290, 293 So.2d 314 (1974).

Constructive possession of a drug is a legal conclusion, derived from factual evidence, that someone who does not have physical possession of a thing, in fact, has legal possession of that thing. This is fancy legal language which means that the law will presume you possessed something even if its not in your pocket.

First, the courts require that “[w]hen constructive possession is relied on, the prosecution must also prove beyond a reasonable doubt that the accused had knowledge of the presence of the controlled substance. Campbell v. State, 439 So.2d 718 (Ala.Cr.App.1983)  However, “[t]his knowledge may be inferred from the accused’s exclusive possession, ownership, and control of the premises” Meeker v. State, 801 So.2d 850, 853 (AlaCr.App.2001) Often, the prosecution’s evidence will included facts that multiple persons were in a residence, car, or place other than the accused Defendant. Therefore, that accused Defendant is not in “exclusive possession” or control of the residence, vehicle, or place. Sometimes, the prosecution’s entire theory will revolve around joint occupancy and possession of the house or car.

In such situations, when the accused is not in exclusive possession of the premises, the requisite knowledge for constructive possession may not be inferred unless there are other circumstances tending to buttress this inference. Korreckt v. State, 507 So.2d 558 (Ala.Cr.App.1986) The courts require some evidence that connects the defendant with the contraband. Grubbs v. State, 462 So.2d 995 (Ala.Cr.App.1984) In Posey v. State, 736 So.2d at 656,658-659, the Court affirmed “a non-exclusive list of circumstances that may establish such a connection between a defendant and the contraband found in a non-exclusive possession situation. The Court stated:

The kinds of circumstances which provide such connection are: (1) evidence that excludes all other possible possessors; (2) evidence of actual possession; (3) evidence that the defendant had substantial control over the particular place where the contraband was found; (4) admissions of the Defendant that provide the necessary connection, which includes both verbal admissions and conduct that evidences a consciousness of guilt when the Defendant is confronted with the possibility that an illicit drug will be found evidence that debris of the contraband was found on the Defendant’s person or with his personal effects; (6) evidence which shows that the Defendant, at the time of the arrest, had either used the contraband very shortly before, or was under its influence.

Additionally, when a person is not in exclusive possession of the residence or vehicle, “the circumstantial evidence had to establish a connection between [the defendant] and the marijuana that excluded every reasonable hypothesis except guilt.” Goodloe v. State, 783 So.2d 931,935 (Ala.Cr.App.2000)

A good example of this type of case is Meeker v. State. In Meeker, the Defendant was convicted based upon the evidence that showed he had visited the residence on a couple of occasions and was possibly staying in a third bedroom. The evidence showed that clothing was found in this room, Meeker’s driver’s licence, a mattress and marijuana were found in the third bedroom. This Court overturned Meeker’s conviction, finding that since he was not present at the time of the raid and since “there was no evidence indicating when or how the license came to be in the room, whether seized marijuana was in the room at the time the license was placed there, or whether [Meeker] had any knowledge that drugs were present in the residence on the . . . the night the residence was searched.” Meeker at 854.


Chocolate chip cookies might get you arrested for drug possession

Radley Balko has a running list of all the materials that field tests have mistaken for drugs:

Sage, Chocolate chip cookies, Motor oil, Spearmint, Dr. Bronner’s Magic Soap, Tortilla dough, Deodorant, Billiards chalk, Patchouli, Flour, Eucalyptus, Breath mints, Loose-leaf tea, Jolly Ranchers

Mom reflects on the 1st year of her 8 year prison sentence

As reported in the Tulsa World News,

One year ago, on the week of Christmas, the first-time offender was checked into the Eddie Warrior women’s prison – the first holiday away from her four young children.

“I cried and cried just thinking of my kids opening presents on Christmas and I wasn’t there,” she said. “This year, it’s going to be any other day. I try not to keep up with days in here.”

At her mother’s home in Kingfisher, there is a somber tone among her children – ages 2, 4, 5 and 10. . .

“The first eight months were a blur,” Spottedcrow said. “I just cried a lot. It’s like I woke up a couple of months ago.”

Her daily schedule starts with breakfast at 5:30 a.m., followed by her job in the laundry. At 4:30 p.m., she is released and goes to the gym, followed by dinner and then church at 7 p.m.

“You have to try and keep your mind busy,” she said. “It’s easy to get sad, depressed and stuck in your own head in here.”

Prison is no picnic, even at a minimum-security campus like Eddie Warrior, she said.

“I took for granted using the bathroom by myself, what clothes you can wear and being able to pick up and go to the store when you want,” Spottedcrow said. “I hate not being able to use your own shampoo and you are limited to spending $10 a month (in the commissary).”

But it’s her kids taking up most of her thoughts.

“I was there every day taking of care of them before this,” she said. “I did everything from going to football games and PTA.”

While in prison, Spottedcrow has taken parenting classes, finished her GED and participates in a grief/loss recovery program, a behavior course, Alcoholics Anonymous/Narcotics Anonymous and a faith-based program. She is on a waiting list to begin higher education and Career Tech classes.

“The life I was living before, that’s over,” Spottedcrow said. “I’m not playing with my life anymore. I would never chance this again for my children.”

Spottedcrow never denied she smoked pot but said she was never a drug dealer or ever used or sold marijuana in front of her children.

“I got myself in this situation, and I’m not saying I shouldn’t be punished,” she said. “But I think this is a little excessive, especially looking at other cases from my county. And I’m sleeping next to people who have killed people, and they have less time than me. There are days I really can’t believe I’m in prison.”

In prison, she has had three misconducts: one for bartering when she gave an inmate cigarettes, one for having contraband when cookies were found in her locker without a receipt and another for aiding and abetting when she did not tell authorities a woman put bleach in the laundry area.

“I have a big heart,” she said. “When I see someone in need, like for food, I want to help if I can. But you can get a misconduct in here for the littlest things.”

In her classes, she has reflected on her life and changes that need to be made, including in her love life.

When she entered prison, she was still in a relationship with her common-law husband, who is the father of three of her children. Now, that relationship is essentially over, and he has not been supporting or caring for the children either, she said.

“The reality is – out of sight, out of mind,” she said. “We were kids having kids. I’m taking it day by day right now. But when I get out of here, I’m only worrying about me and my kids. They are my first concern.”

And there may be some concerns to work through with her children.

At the Kingfisher home, it’s been a tough existence and one that is relying on the generosity and help of others.

Spottedcrow’s oldest child has been acting out since her incarceration.

“He’s in trouble for stealing, and his mouth is real swift and sharp,” Starr said. “He blames me a lot for what happened to his mother. The girls want to cry a lot. They don’t like to listen to me, saying, ‘You’re not my mother.’ We struggle every day.”

Financially, the situation has been devastating at times.

Starr earns $8 an hour at a truck stop and doesn’t have a driver’s license because of a conviction. Spottedcrow’s oldest child pitches in with a few dollars from odd jobs he does at their church.

Starr’s utility and food costs have shot up since she took in the four children, and she owes $8,000 in court fines. As part of her sentence, she must take two drug tests a year, costing $150 each.

“But there are other little things, like I couldn’t buy their school pictures this year,” Starr said. “At school, kids can buy popcorn for $1 on Fridays, and sometimes mine are the only ones not getting popcorn.”