In June, 2006, M.A. was returning to his home in Broward County, traveling southbound on “Florida’s Turnpike in Okeechobee County, when the accident occurred.
A U.S. Army convoy also was traveling southbound, and a Humvee hit M.A.’s vehicle from the rear. Typically, a “rear-end” accident results in the driver of the ‘following’ vehicle being charged with causing the crash—- but in this case, amazingly, the Florida Highway Patrol Trooper investigating the crash determined that M.A. was at fault. This was however, just the beginning of M.A.’s problems.
The FHP trooper asked M.A. if he would consent to a search of the vehicle’s trunk. M.A. refused.
The trooper then claimed to smell “burnt marijuana” emanating from M.A.’s car. The trooper then claimed M.A. made voluntary statements that there was marijuana in the car’s trunk. After searching the vehicle trunk compartment, M.A. was arrested and charged with Felony Possession of Cannabis, and Misdemeanor use or possession of Narcotics Paraphernalia. (The felony charge is punishable my a maximum term of imprisonment of five (5) years, and the misdemeanor carries a one (1) year County Jail maximum sentence.) The case number is 2006 CF 510.
M.A. hired Jonathan Jay Kirschner, Esq. Attorney Kirschner thought the trooper’s arrest affidavit conceding M.A. had refused the vehicle search, followed closely by M.A.’s alleged “admissions”, and coupled with the ‘sudden’ smell of cannabis, was at best, very suspicious.
At the trooper’s deposition, he testified under oath that he received no formal training or experience in recognizing the “smell” of marijuana, and that he was able to recognize the odor based only upon his “experiences in New York City walking down the streets…”
The trooper also gave sworn testimony that he used no ‘coercive’ tactics when seeking M.A.’s consent to search the trunk. M.A., to the contrary, indicated the trooper threatened to “impound” M.A.’s vehicle if he did not consent to the search. – – – If the trooper had in fact used the threat of impoundment in order to gain M.A.’s consent to search, the Court could then find that M.A.’s consent was not “voluntary”, and order the State be precluded from introducing the ‘pot’ ultimately recovered at M.A.’s trial, due to the police misconduct in coercing M.A.’s “consent”. Such police misconduct violates the Fourth Amendment to the United States Constitution.
The problem was that it was M.A.’s word versus the trooper’s sworn testimony.
But there was a witness.
A U.S. Army sergeant with eighteen (18) years military service was dispatched to the scene of the accident that night, and arrived at the scene some thirty (30) minutes prior to the trooper’s arrival. The Sergeant went to the scene because the accident involved Army property. And he had observed the interaction between the trooper and M.A.
Attorney Jay Kirschner then was faced with the daunting task of gaining access to the federal DOD employee; as the federal government is notoriously zealous in restricting access to it’s agents.
Kirschner ultimately persuaded the Army’s counsel to allow the Sergeant to appear for a sworn deposition.
The Sergeant corroborated M.A.’s version of the coercive tactics utilized by the trooper.
Kirschner filed a lengthy “Motion to Suppress Evidence”, setting forth the grounds for suppressing the contraband, and forwarded it to the Office of the State Attorney. Rather than risk losing the case entirely, and exposing the trooper’s actions, the State agreed to allow M.A. to plead to a simple misdemeanor possession charge. Adjudication of guilt was withheld, meaning M.A. did not suffer a criminal conviction. He was placed on six (6) months probation on February 20, 2007, which was converted to “administrative probation” (M.A. is not required to report, be supervised, or submit to random drug testing) on April 24, 2007, just sixty-three (63) days after sentencing.
Persistence, experience and attention to detail always yields superlative results.