Mariah Coney, Esq.

Taneilia Jackson, Esq.

123 Collins Ave
Nalcrest, Florida 33179


May 21, 2014

Dawn Davis
750 East Stew Street
Nalcrest, Florida 33856
Fax Number


Re: Whether the evidence found in the duffle bags warrant a misdemeanor charge for possession
of drug paraphernalia.


Dear Ms Davis,

You hired us to represent you after your arrest on December 28, 2002 for the possession
of drug paraphernalia. On January 1, 2003 we met and you asked us whether the evidence found
could be suppressed, due to the fact that you didnt take full ownership. Prior to our meeting on
January 1, 2003 we received the police report on December 31, 2002. This opinion is limited to
the facts contained in the facts section of this letter and the Florida Statues as of this date of this
letter and is solely for your benefit.

Facts

The following facts were gathered from the Police report written on December 28, 2002.
Please contact us if there are any inaccuracies to be corrected or any additions to be made.

Stated in the police report you were at The Ray Motel with Peter Connor and Sam Cook, who
was the sole renter of the motel room. The police arrived to do a follow-up investigation of an
event that happened earlier. Cook invited the police in where they discovered boxes with DVDs
and VCR players that were slightly covered by a towel. Moving further into the room they saw
duffel bags next to the bed. When asked who owned the red (MarcBoro) bag both you and
Connor agreed that it belonged to both of you and granted the police permission to look inside.
During the search of the red ( Marcboro) bag three glass pipes were used that contained brown
residue. Based on Police protocol, the evidence found lead him to believe that the pipes were
used to smoke illegal narcotics. When the pipes were found then you and Mr. Connor denied
possession of the bag and responded that the bag was found in a dumpster behind the dumpster
and was not really yours. The blue jean colored bag was discovered and you admitted that it
might be yours. Upon inspection of that bag another pipe was found along with a few
documents. The documents had your name on them. You later stated that the red (Marcboro)
bag was brought at a thrift shop and the property was already there when you brought it. Then


your friend Peter Connor verbally stated that the red (marcoboro) was in fact his and found in
that bag was a silver crack pipe. When tested, the silver pipe was positive for cocaine. The other
four pipes tested positive for methamphetamine. At that point in time you were both arrested for
possession of drug paraphernalia.

Answer

After further examination of the facts the Courts should suppress the drug paraphernalia
if it decides that the evidence found did not warrant an arrest. However there are possible
arguments that the government could make.

The government could make the argument that there is reasonable suspicion to believe
that the bag belong to you because it was found in a motel room that you take partial ownership
in. The drug paraphernalia was found in a bag that you didnt take full ownership in, but you did
take partial ownership in possess by stating that the bag might be yours. By making the
statement it might be mine you do take some ownership in the bag. With the statement the
courts can also conclude that you may have taken ownership, if you were not in fear of the
criminal circumstances that surrounds this situation.

The government will bring up the fact that in the (Blue Jean) bag there were documents
with your name written on them. It can be speculated that you would put documents that may be
of importance in a bag that you possess. Also because the papers were inside the bag then you
must have been aware of the other content inside.

The government could also argue that the inconstancies found during the questioning on
that day proves that you and Mr. Connor may have been lying. If taken to trial the government
could persuade the jury not to believe the defense argument because of these inconsistencies.
The question posed would be how your statement or testimony given could be taken into
consideration when there is no accuracy.

Explanation of the governments arguments
Under the Florida Statute 893.101 the legislature finds that the lack of knowledge of the
illicit nature if a controlled substance (illegal paraphernalia) can be used as a defense when
accused of being in possession of controlled substances. However when using this defense the
possession of a controlled substance, whether actual or constructive, you are presumed to be the
owner of the substances. In the case (United States v. Nenadich, 689 F.Supp. 285 [S.D. N.Y.
1988) Actual possession is defined as immediate physical contact. Whereas Constructive
possession is defined in (United States v. Derose, 74 F.3d 1177 [11th Cir. 1996]) where a person
has knowledge of an object plus the ability to control the object, even if the person has no
physical contact with it. When in court the jury will be given instructions to presume that the
substances found are indeed yours. You also voluntarily gave consent to the police that the bag
may have been yours without being coerced, by explicit or implicit means. The police had some
evidence of illicit activity because of the follow-up investigation, there was probable cause to
search the apartment.



In the Florida Statue 893.13 (1)(a) certain drugs and chemical substances are by law
known as controlled substances. To prove that you were in possession of drug paraphernalia the
state must prove beyond a reasonable doubt the following that you:

1. Sold
2. Purchased
3. Manufactured
4. Delivered
5. Possessed with the intent to sell
6. Possessed with the intent to purchase
7. Possessed with the intent to Manufacture
8. Possessed with the intent to deliver
a certain substance.

You could be accused of possession with the intent to purchase, sell or deliver due to the
circumstances. The second element they have to prove that you substances was in fact a
controlled substances and that you had knowledge of the substance.

The Florida Statue 893.147 states that it is unlawful for any person to use, or to posses
with intent to use, drug paraphernalia. Any person who violates this state is guilty if a
misdemeanor of the first degree, punishable as provided in s. 775.052 or s. 775.083.

Given the possible arguments that the government may use and explanations that support
these arguments we can either decide to plea bargain or go to trial. A first degree misdemeanor
is punishable by no more than 180 days. A plea bargain could be in your best interest and could
be less expensive.

I would like to meet with you in a few days to decide the right course of action that is
best for you and fits your specific case. Should you have any questions concerning the matter
please do not hesitate to contact our office.


Very Truly Yours




Mariah Coney