This month (January 2012),Florida’s 4th and 1st District Courts of Appeal recently came to opposite conclusions concerning the interpretation of section 893.135(1)(b)1, Florida States 2009. This particular statute provides that:
[a]ny person who knowingly sells, purchases, manufacturers, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 28 grams of cocaine . . ., or any mixture of cocaine, but less than 150 kilograms of cocaine or any such mixture, commits a felony of the first degree.
The statute further provides for penalties consisting of both fines and mandatory minimum prison terms based on the quantity of cocaine involved.
In Jackson v. State of Florida (4th DCA case; opinion dated January 2012) and Greenwade v. State of Florida (1st DCA case; opinion dated January 24, 2012), the issue before the courts involved the handling and testing by the crime lab of individual bags of suspected cocaine which had been seized by the police. The Jackson case involved eight (8) baggies of a powdery substance and two (2) baggies containing suspected cocaine rocks. The Greenwade case involved nine (9) baggies containing a powdery substance.
In Jackson, the crime lab technician tested one of the eight “powdery substance” bags for cocaine and the two “rock” baggies. No further testing was conducted. The total weight of the ten bags was greater than 200 grams. The jury found the defendant guilty of trafficking cocaine in an amount of 200 grams or more but less than 400 grams. UnderFlorida Statute 893.135(1)(b)1.b., the defendant was sentenced to fifteen (15) years [eight (8) years in addition to the statute’s seven (7) year mandatory minimum for cocaine trafficking of this amount].
Relying on Ross v. State, 528 So. 2d 1237 (Fla. 3d DCA 1988), the Jackson court reversed the defendant’s conviction with directions that the conviction be reduced to the lesser offense of trafficking in cocaine in amount of 28 grams or more, but less than 200 grams because the crime lab had not tested each and every seized packet.
In Ross, the State had only tested two (2) of ninety-two (92) separately-packaged packets. The total weight of the combined packets exceeded 28 grams, the threshold level required for a felony conviction of cocaine trafficking. The Ross Court held that where “the subject cocaine or mixture is contained. . .in a series of separately wrapped packets,” the State must “establish that each if the subject packets contains cocaine or a mixture thereof which in the aggregate stratifies the statutory weight.” Ross at 1239. The Ross court reversed the defendant’s felony conviction for trafficking in cocaine because the State failed to prove that he actually possessed 28 grams of cocaine.
In Greenwade, the First DCA discussed Ross and two other similar cases out of the Second DCA, but declined to follow those cases. Instead the Greenwade Court focused on the inclusion of the wording “or of any mixture containing cocaine” in Statute 893.135(1)(b)1” to conclude that Florida law does not require the crime lab to quantify the amount of cocaine in a given sample. That is, a positive test for cocaine is sufficient for establishing that the sample, whether 100.0% pure or part of a mixture, is sufficient for a finding that the defendant was in possession of cocaine.
The First DCA also cited the Florida Supreme Court’s statement in State v. Yu, 400 So. 2d 762, 765 (Fla. 1981) that “the legislature reasonably could have concluded that a mixture containing cocaine could be distributed to a greater number of people than the same amount of undiluted cocaine and thus pose a greater potential for harm to the public.” The First DCA then applied the Yu Court’s statement to conclude that the fact that cocaine is often sold as a mixture to facilitate broader distribution, legitimizes the practice of commingling multiple packets for chemical testing and weighing, where circumstances attending the discovery and seizure of the packets permit the reasonable conclusion that they contained contraband, and perhaps other substances, to be used in illegal drug distribution.
In Greenwade, all of the individual packets had been field tested. Furthermore, the nine (9) individual baggies were found in a larger green bag which was setting on a table next to a digital scale and spoon which tested positive for traces of cocaine. These facts undoubtedly persuaded that Greenwade court to uphold the defendant’s jury conviction of trafficking in cocaine in amount more than 200 grams, but less than 400 grams, should be upheld.
The Greenwald court has certified the conflict between its holding and the Third and Second circuits to the Florida Supreme Court “to the extent those cases hold that the lab’s failure to test each package before commingling to determine weight renders insufficient the State’s evidence of trafficking, notwithstanding other circumstantial evidence of the offense.” The matter is expected to be heard this year.
From our perspective as criminal defense attorneys, the co-mingling of individual packets to obtain a weight for imposing the corresponding penalties is problematic when separate tests to establish that the individual packets also contain cocaine are not also conducted. The legislature, by including the words “or a mixture of cocaine,” was most likely recognizing that cocaine could be sold in its pure state, or in a “diluted” state where it is mixed with other white powdery substances. It is hard to imagine that the statute’s wording gives legitimacy to the co-mingling of packets to obtain a total weight for sentencing purposes as the Greenwald Court suggests. Clearly any non-cocaine substances will contribute to the total weight. As the Ross court stated, “a visual examination of untested packets of this weight is insufficient to convict because the white powder contained therein may be milk sugar or any one of vast variety of other white powdery chemical compounds not containing cocaine.” Ross at 1239.
Where individual packets are all shown to contain cocaine and then co-mingled to obtain the total weight, the contribution of any non-cocaine substances to the total weight would be acceptable for assessing the total weight under the statute. This would also help “prove” that the weighed co-mingled sample is based on a true co-mingling of all seized packets and therefore help justify sentencing under the statute based on a “real” weight. Again, the fact that the individual packets may have contained non-cocaine substances would be irrelevant if it was demonstrated that each and every packet itself contained cocaine.
Generally under rules applied to statistical sampling of representative individual containers of a large number of containers (e.g., as in quality control testing of a consumer product), the number of samples to be tested is statistically based on the total number of samples. According to the facts in Ross and Greenwade, there is apparently no defined procedure for testing at least a minimum number of individual containers/packets based on the total number of packets seized based on statistical sampling procedures. Testing is apparently conducted under the sole discretion of a crime lab employee rather than by some sort of statistically-based procedure.
We also note that the Ross case involved 92 packets of which only two (2) separately packets were tested. In Greenwade, every separate packet for a total of nine (9) packets had allegedly been field tested before they were combined into one (1) sample for additional testing. Furthermore the “rock cocaine” sample tested positive. The Greenwade data was more likely to have been representative of the entire number seized baggies (i.e., that they did all contain cocaine) than the Ross data under statistical sampling principles.
Moreover, under Florida law, the tests used by the crime lab are only confirmatory tests of the presence of cocaine. That is, the actual amount of cocaine in the individual packets or the seized packets does not need to be determined. It would seem that a quantitative determination of the total cocaine in at least the weighed final sample which is used to “pass sentence” would help ensure a proper sentence under the statute. This testing would focus on the total amount of cocaine in any given weighed sample and would also establish whether the weighed sample was a mixture. As an example, assume that following results were obtained with three (3) different weighed samples (each at 300 grams) with each sample obtained from a different crime lab.
- 300 mg weighed sample/total quantified cocaine is 300 (pure)
- 300 mg weighed sample/total quantified is 28 (mixture)
- 300 mg weighed sample/total quantified cocaine is 100 (mixture)
Such a test would eliminate the contributory factor of non-cocaine substances to the imposition of sentences because it would be based on the actual amount of cocaine within the seized and combined packets. Based on current procedures, all three defendants would be sentenced on the basis of 300 mg of cocaine.
It will be interesting to see just how the Florida Supreme Court rules on this matter. Until the procedures for more accurately assessing the true amount of cocaine in a sample which is to be used as the weight of cocaine for sentencing positions, it is our position that all seized samples need to be submitted to a confirmatory test for cocaine before combining the samples for a weight determination. Stay tuned for an update on the Florida Supreme Court’s decision.
THE FOREGOING IS NOT LEGAL ADVICE, NOR SHOULD YOU CONSIDER IT AS SUCH. IT IS FOR INFORMATIONAL PURPOSES ONLY. IF YOU ARE CONTEMPLATING ANY ACTIONS WHICH MAY HAVE LEGAL CONSEQUENCES, YOU SHOULD CONSULT WITH AN ATTORNEY OF YOUR CHOOSING.
