Tampa Criminal Defense Attorneys discuss recent case results in a sell of marijuana case decided in Pasco County, FL.
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Entrapment Defense in Sale of Marijuana Felony in New Port Richey, Pasco County, FL
Result: State Attorney's Office for the Sixth Judicial Circuit of Florida filed a "No Information" which dropped all charges after the State Attorney reviewed information provided by our office about an entrapment defense or duress or necessity defense, and took testimony under oath at a State Attorney investigation. On January 14, 2009, the State Attorney's Office filed a "No Information" which stated the prosecutor's conclusion that "the facts and circumstances revealed do not warrant prosecution at this time."
Our client was arrested in November of 2008 for sale of marijuana more than 20 grams within 1000 feet of a convenience store, and possession of marijuana more than 20 grams within 1000 feet of a convenience store for a case in New Port Richey, Pasco County. The incident that caused the arrest occurred 6 months early when the client allegedly assisted another person (who turned out to be a confidential informant) who sold more than 20 grams of marijuana to an undercover officer.
The circumstances of this case were bizarre because it involved a sting operation at a Hydroponic Store where people purchase equipment and suplies for indoor growing or gardening in Pinellas County, Florida. A sting operation involving a hydroponic store might be an effective way for law enforcement to find out information about marijuana grow house operations in Florida. See Part II for more information on sting operations at hydroponic stores in Florida aimed at busting marijuana or cannabis grow house operations. In this case, however, the sting operation was pretty inept.
From our investigation it appeared that an employee of a hydroponics store in Pinellas County was working as a confidential informant for the law enforcement officers in Pinellas and Pasco County. It appears from the investigation that the confidential informant was either unable or unwilling to convince any of his drug connections to assisting him in buying or selling drugs, including marijuana. After becoming increasing desperate, the confidential informant approached a young woman that worked in the same shopping complex as the hydroponic store.
The hydroponic store employee told the woman that he needed a ride to sell marijuana to a man in Pasco County at a convenience store. The young woman, who had no criminal record, told him repeatedly she wanted nothing to do with giving him a ride. However, over the course of the day the confidential informant convinced the young woman that he owed money to a drug dealer. The confidential informant told her that unless he was able to get a ride to the convenience store to do the drug deal and get the money, a drug dealer may come after him or his child. Our client was familiar with the man's chld because she had seen the child around the shopping center. In fact, our client had watched the child for the confidential informant on a couple of occasions. Against her better judgment, after hours of begging by the confidential informant, the woman agreed to drive the confidential informant to Pasco County.
When she got to the convenience store in Pasco County, the young lady and the confidential informant sat in the car with the "drug dealer" while the confidential informant sold a package of marijuana. The confidential informant then got out of the vehicle and stayed at the scene of the convenience store after the drug transaction. Of course the other party to the sell of marijuana transaction was really an undercover detective working for the Pasco County Sheriff's Office.
As the young women drove off, she had a distinct feeling that the confidential informant had made up the entire story about his daughter being in danger. She fully expected to be stopped by the police as she drove out of the parking lot, but she was never stopped. It appears that the detectives working with the confidential informant wanted to gather more evidence against the young woman before making an arrest. Over the next several months, the employee at the hydroponics store continued to harass the young woman asking her to assist him in performing other drug deals, but each time she refused.
In November of 2008, detectives came looking for the young woman in Pinellas County to arrest her on felony warrants for sale and possession of marijuana. Instead of talking to the police, she invoked her right to remain silent, bonded out of jail, and hired an attorney at the Sammis Law Firm.
An attorney at the Sammis Law Firm was retained by the young lady and her parents to represent her during a pre-file investigation of the case. The State Attorney's Office in Pasco County, FL, usually takes 21 days after an arrest to make a filing decision. In other words, the police make the arrest for certain charges. The job of the State Attorney's Office is to decide whether to formally files those charges, more serious charges, less serious charges, or no charges at all. Hiring an attorney immediately after the arrest is important to make sure that your lawyer has an opportunity to talk with the prosecutor who will be deciding whether to formally file criminal charges.
In this case, we provided the prosecutor with information about our ENTRAPMENT or NECESSITY OR DURESS defense.
Entrapment Defense under Florida Law
The entrapment defense exists under Florida law when the following factors are present:
- The person accused was encouraged to participate in the crime charged in order for law enforcement to gain evidence that the person accused committed a criminal offense; and
- The person accused engaged in the criminal act as a direct result of the encouragement; and
- And the person or people who encouraged the crime were law enforcement officers or confidential informants acting in cooperation with law enforcement; and
- And the person or people who encouraged the crime used methods of persuasion which created a substantial risk that the criminal act would take place by the individual who was not otherwise ready to commit the crime; and
- The person accused was not a person who was otherwise ready to commit the crime.
In this case, the confidential informant attempted to gain our client's trust by talking about his financial problems, his daughter, and a possible way that he could avoid being attacked by a drug dealer who was threatening him and his family. The confidential informant went after someone who he knew professionally because they worked in the same strip mall, and someone who was not a drug dealer. Often, the confidential informant performs a series of small acts to encourage or induce the person accused to commit the crime. In this case, the man repeatedly expanded on his story about how his life, and then his child's life was in danger. The confidential informant was looking for additional things to say that would finally convince the woman to assist him.
After each failed attempt, the confidential informant may become more aggressive and creates greater incentives to commit the crime. In many of these entrapment cases, the confidential informant will prey on the defendant's weaknesses. In this case, concern for the safety of an innocent child.
In other entrapment cases, the confidential informant may prey on the defendant's sexual urges. For instance, if a pretty lady promises to have sex with the defendant if he will bring her drugs to enhance her sexual pleasure, then the confidential informant is preying on the defendant's sexual urges and not his predisposition to sell drugs. Many entrapment cases have hinged on the fact that the confidential informant promised some other benefit for committing the crime, and that additional benefit motivated the defendant to commit a crime he was not otherwise inclined to commit.
Necessity or Duress Defense under Florida Law
In Florida, acting out of necessity or duress can be an affirmative defense to a criminal charge when the following four factors are shown:
- The person accused reasonably believed under the circumstances that a danger or an immediate emergency existed which threatened significant hard to the person accused or another person;
- The person accused did not intentionally cause the danger or emergency; and
- The person accused could not avoid the danger or emergency except by committing the crime charged; and
- The harm that the person accused wanted to avoid by doing the criminal act must outweigh the harm caused by committing the criminal act.
The public policy for the duress or necessity criminal defense is that when a person is in a dangerous or emergency situation he may be confronted with a choice of two evils: committing a criminal offense under the letter of the law with some harmful result or complying with the law but in the process commit an even greater harm. In that situation, social policy excuses the crime that results from violating the law but avoiding the greater evil. See LaFave Scott, 1 Substantive Criminal Law § 5.4, at 627 (1986).
In this case, it appeared that the duress or necessity defense could apply because our client was worried about an immediate threat to the life of the confidential informant and his young daughter. By hiring a criminal lawyer for New Port Richey, Pasco County, FL, early in the case the client was able to avoid having any criminal charges filed against her after the arrest.
If you have been arrested for a criminal offense of selling drugs or trafficking a controlled substance, or if you are currently under investigation, contact an attorney at the Sammis Law Firm before you make any statement to law enforcement. Your criminal defense attorney is often in the best position to convince the officers not to make an arrest, or if they are going to make an arrest to negotiate your surrender and argue for a very low bond. Having an attorney during the 21 day period after an arrest is critical to your defense because your attorney may be able to convince the prosecutor not to file any formal charges, even in cases involving an affirmative defense.