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Any information or clarifications that can be made addressing the substance
of
this post will be greatfully appreciated and carefully considered.
I have a few questions concerning law and legal procedure in a criminal
matter.
Details are as follows:
I
FACTS OF THE CASE
1.) On the date of December 17th of this year I was a passenger in a certain
pick-up
truck that was subjected to a "drug dog sniff" at which time the dog "hit"
on the driver's side,
but not on the passenger side where I was sitting.
2.) I was then ordered to exit the vehicle whereupon I was subjected to a
very explicit patdown
search that failed to yeild any contraband or other illegal substances.
3.) The driver of the vehicle was likewise seached and he also failed to
provide the officers any
evidence of illegal activity.
4.) Subsequently the vehicle was searched and apparantly a used syringe was
discovered crammed in
the crack between the seats, in the center of the seat between the driver's
side and passenger side, or so it
was related to me later by the officer when he was transporting me to jail.
5.) The driver of the vehicle, who also was the owner, and myself were
immediately arrested for possession
of a controlled drug and transported to jail.
6.) On December 20th we were both individually and seperately arraigned upon
independant felony complaints
charging that we were alleged to be guilty of possession of a controlled.
That is to say that we have different case
numbers.
7.)A Section B was also filed alleging that the offense charged is a second
and subsequent offense.
8.) All facts stated herein occurred in the State of Oklahoma.
______________________________________________________________________
II
The Information and Affidavit of Probable Cause by the arresting officer
Background of Oklahoma Criminal Procedure
9.) In oklahoma the initial accusatory pleading is considered to be a
criminal complaint in f
elony cases, even if it is titled as Felony Information. It is only after a
probable cause finding
by the committing magistrate at the Preliminary Hearing confers jurisdiction
upon the District cOURT TO
proceed against the defendant upon Information to which the defendant
pleads to in open court at Formal
Arraignment, provided that a Demurrer is not entered contesting defects as
to the Information.
10.) Under revised statutory procedure enacted by the legislature, The
following rule is given:
22 O.S.Section 504.1
----------------------
Motion to Quash for Insufficient Evidence
A. In addition to a demurrer to the indictment or information, as provided
in Section 504 of Title 22 of the Oklahoma Statutes,
the defendant may file a motion to quash for insufficient evidence in felony
cases after preliminary hearing. The defendant must
establish beyond the face of the indictment or information that there is
insufficient evidence to prove any one of the necessary
elements of the offense for which the defendant is charged.
10.) The Complaint, or Felony Information, reads in part:
"That is to say the said defendant, on or about the 17th day of December,
2004 did unlawfully, willfully, knowingly
or intentionally and feloniously have in his possession and under his
control Methamphetamine, said drug" da da da.
11.) The Affidavit, while being a full page in length, actually says
little about me. Facts stated within that relate to me are as follows:
"Dane Metcalfe also advised that he would not consent to a search of his
person."
"Officer Frank Fox and Officer Brad Rhoads searched [ the driver's ]
vehicle and in the middle of the vehicle a used syringe was found.
"Both [ the driver ] and Metcalfe were placed under arrest for possession of
CDS residue..."
_______________________________________________________________________
III
Applicable Oklahoma Legal Authority
Staples v. State Okl., 528 P.2d 1131 (1974)
-------------------------------------------
1974 OK CR 208
---------------
" The defendant asserts that this case must be reversed for the reason
that the State's evidence is insufficient to warrant the conclusion by the
jury that he was in possession of the marijuana found in the truck in which
he was a passenger.
It has been frequently held in this State that the possession prohibited by
the drug laws need not be actual physical custody of the controlled
substance; it is sufficient that the State prove the accused to have been in
constructive possession of the contraband material by showing that he had
knowledge of its presence and the power and intent to control its
disposition or use. See e.g., McCarty v. State, Okl.Cr., 525 P.2d 1391
(1974); Wentworth v. State, Okl.Cr., 513 P.2d 886 (1973); Guthrey v. State,
Okl.Cr., 507 P.2d 556 (1973); Sutterfield v. State, Okl.Cr., 496 P.2d 428
(1972). Further, possession need not be exclusive; a person may be deemed to
be in joint possession of a drug which is in the physical custody of a
companion, if he willfully and knowingly shares with the other the right to
control the contraband. See Patterson v. State, Okl.Cr., 403 P.2d 515
(1965). We have, however, repeatedly held that proof of mere proximity to a
prohibited substance is insufficient. Whether the case is tried on the
theory of sole or joint possession, proof that the accused was present at a
place where drugs were being used or possessed is, in and of itself,
insufficient to justify a finding of possession. There must be additional
evidence of knowledge and control. McCarty v. State, supra; McBride v.
State, Okl.Cr., 507 P.2d 63 (1973); Osburn v. State, Okl.Cr., 497 P.2d 471
(1972); Riggs v. State, Okl.Cr., 486 P.2d 643 (1971); Brown v. State,
Okl.Cr., 481 P.2d 475 (1971).
Guilty knowledge is rarely susceptible of direct proof. The fact that the
accused knew of the presence of the contraband and had the right to control
its disposition or use may be established by circumstantial evidence.
McCarty v. State, supra. Nevertheless, it is the law of this jurisdiction
that a conviction upon circumstantial evidence cannot be sustained if the
proof does not exclude every reasonable hypothesis but that of guilt, and
proof amounting only to a strong suspicion or mere probability is
insufficient. Brown v. State, supra. We have held that circumstantial
evidence which shows that a narcotic substance was found on premises
possessed by the accused and under his exclusive control, permits an
inference of knowledge and control of that substance which is sufficient to
carry the case to the jury. Luker v. State, Okl.Cr., 504 P.2d 1238 (1973);
Ruhm v. State, Okl.Cr., 496 P.2d 809 (1972).
On the other hand, as we stated in the third paragraph of the syllabus of
Brown v. State, supra:
"'Where a person is present in premises where marijuana is found, but does
not have exclusive access, use, or possession of the premises, it may not be
inferred that he had knowledge of the presence of marijuana and had control
of it unless there are additional independent factors showing his knowledge
and control.'"
Such
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ossibly too many crime laws?
http://www.foxnews.com/story/0,2933,143046,00.html
WASHINGTON - Every American is just a few steps away from committing a
crime.
That point is raised in new publications that seek to cast a critical eye on
lawmakers for their aggressive approach to going after supposed wrongdoing.
"I think we should be alarmed on a number of different levels," said Bob
Barr, a former Republican member of Congress from Georgia who also used to
be a U.S district attorney. "We're changing the very nature of society - the
over-criminalization of society."
From environmental infractions, to corporate crime and prosecuting vice
crimes already covered by state law, the federal criminal code has grown 33
percent since 1982, with an estimated 4,000 punishable crimes on the books
today, according to "Measuring the Explosive Growth of Federal Crime
Legislation," published by the Federalist Society (search) in 2004.
Contrasting the growth of federal crimes is an overall drop in the crime
rate across the United States, according to recent Justice Department
statistics. The number of murders dropped by nearly 6 percent and overall
crime dropped 2 percent in the first half of 2004 compared to the same time
period in 2003. Meanwhile, reports of rape increased nationwide by 1.4
percent.
"Effectively, we've created a federal police power," which was not the
original intent of the framers of the Constitution, said John S. Baker Jr.,
a law professor at Louisiana State University and co-author of the report.
Plus, according to the Washington D.C-based Sentencing Project (search),
half of the more than two million federal, state and local prisoners today
are behind bars for non-violent offenses. The group said that's the result
of tougher sentencing guidelines promoted by state and federal officials in
the last decade.
'Society's Last Line of Defense'
While the example of a 61-year grandmother being hauled off in handcuffs for
growing her hedges too high might seem preposterous, it is part of a bigger
problem, said Gene Healy, editor of the newly-published book by the Cato
Institute (search), "Go Directly To Jail: The Criminalization of Almost
Everything."
Lawmakers and prosecutors, in their zeal to show they "are tough on crime,"
have clogged the legal system with criminal cases weighed down by unfair
mandatory sentences and many best left for the civil courts and regulatory
sanctions.
"Criminal law is sort of society's last line of defense - it's really the
hammer that is used against truly bad actors committing crimes we are all
concerned about: killing, defrauding, stealing," Healy said. "When you throw
someone who has filled a form out wrong in the same cell with an arsonist
you really weaken the force of this sanction."
But Gene Voegtlin, legislative counsel for the International Chiefs of
Police (search), said that even the seemingly smallest prosecutions have
their place. He points to New York City as an example - under former Mayor
Rudy Giuliani (search), the city was able to reign in rampant crime by
getting tough on even the smallest infractions, like littering, loitering
and disorderly conduct.
"You create an environment of safety and it becomes that much harder for
people to step out of line," he said.
Healy's book uses amusing examples of ballooning criminal laws - like it
being a federal crime to transport unlicensed dentures over state lines -
but also more sobering instances of questionable law enforcement tactics,
like the Texas woman who was hauled off to jail in front of her kids in 1997
for not buckling up in the car.
"I think we get a thrill out of seeing powerful figures like .Martha Stewart
get in trouble with the law, but what people don't realize is they are
basically applauding a law that could be turned against them" said Healy,
"and they would be in a worse spot because they wouldn't have the same
amount of money to defend themselves."
The book chronicles several horror stories.
There's 8-year-old Hamadi Alston (search) of New Jersey, who was put in a
jail cell in 2003 for five hours for using an L-shaped piece of paper he
found in a book as a play gun in the schoolyard. There have been numerous
reports of people - even children - being arrested and detained with
handcuffs for eating in Washington, D.C., subway stations.
Schoolteacher Hope Clarke was hauled off a cruise ship in 2003 allegedly for
not paying a fine for leaving marshmallows at a Yellowstone National Park
campsite. After being detained for 10 hours, she was taken into shackles
before a judge, who by that time acknowledged she really did pay the fine.
Dave Kopel of the Independence Institute (search) in Denver said aggressive
law enforcement has become increasingly a problem since the 1990s, when more
agencies incorporated SWAT teams and governments wanted tougher
zero-tolerance policies.
"When you start moving to that third-world model, where even law abiding
people are afraid of police, it's a big step backward for civilization, and
even law enforcement in general," Kopel said.
But Voegtlin said the incidents are extreme, and do not represent the wide
swath of positive community policing efforts and law enforcement tactics
throughout the country. Most incidents, he said, involve police acting "by
the book," to protect the general public, as well as themselves.
"Of course there have been isolated examples," said Voegtlin, who reminds
that police don't make the laws. "The idea is, it's not up to law
enforcement to decide what laws are put in the books - they are there to
enforce the law and that's it."
But Healy said some law enforcement officers are causing ordinary citizens
to lose trust in police because they seem to be treating everyone like
potential criminals.
"If you are an ordinary citizen going about your business, you should be
secure in knowing that you won't be handcuffed and humiliated and if you
ever have an interaction with police it will be polite and pleasant," he
said. "That's the way it is in most places - but as it becomes easier to
throw the book at someone and give them Hannibal Lecter treatment for these
minor offenses, than it's going to change the way we view law enforcement."
But James Carafano, a national security expert with the Heritage Foundation
(search), said the expanded federal crime powers are necessary to
investigate and prosecute the War on Terror.
"There are many important issues of security here and this anxiety over
overcriminalization is just poisoning the well," he said. "This is just part
of the pathetic debate over 9/11 - that you can't have security and civil
liberties at the same time."
But it isn't just terror laws that have folks worried. They say federal
crimes regarding corporate misdoings - like sending "Domestic Diva" Stewart
to jail for lying to an investigator - and the environment, are also out of
hand.
Defenders say that sending Stewart to jail shows that the government is
serious about corporate crime. Others disagree that the law is fairly
applied
The Cato book points to Edward Hanousek Jr. (search), who in 1994 was
sentenced to six months in prison, six months in a halfway house and six
months under supervised release, when an independent contractor working
under hi
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