Drugs in the Backseat

Sometimes, the toughest thing to do is to not do anything.

A common, thoughtless phrase goes something like this: Don’t just stand there, do something. Almost always, this is bad advice.

Our brains are hard wired to “do something,” much in the way that a deer runs across a busy road when he hears a random noise behind him. This impulse to “do something” may have helped us survive in the wild, but it no longer carries the same wisdom. “Doing something” tricks us into thinking we have control of the situation, and probably makes us feel less regret later, should things turn out bad. Unfortunately, doing something can get you into trouble.

If you have the courage to “not” do something, to stand still, you’ve just increased your chances of success.

This is Warren Buffett’s 5/25 Rule.

Now, I can already sense the eye-rolling, and eye-rolling rates has been linked to a marriage’s chance of success, so I take your eye-rolls seriously. Plus, invoking Buffett’s name will make some of you yawn, in the same way that talking about quantum physics at a gathering will bore everyone to tears (guilty as charged).

Here’s how you follow the 5/25 Rule. First, write down 25 things you need to do, and place them in order of importance.

Next, circle the top 5.

Keep in mind that, even though you’ve circled the Top 5 goals, the other 20 goals are still pretty important to you, right? Well, even though those other 20 things are super important–the Rule requires you to cross out the remaining 20 things on your list.

Under the 5/25 Rule, the bottom 20 goals are completely out of your life. Forget about them. Actually, Buffett goes beyond mere forgetfulness, he says these 20 things just became your “Avoid At All Cost” list. You may be tempted to work on #6, or #9, or #14, because these are still important things. But, you can’t touch them. You can’t do anything on this avoidance list until you succeed on your five most important things.

And that, my friends, is the 5/25 Rule. And that, my friends, is what we call FOCUS.

Imagine you’re a reporter, and you land an interview with Bill Gates and Warren Buffett sitting at the same table. their first interview together. This actually happened. And, imagine you ask them a simple question “What is the one trait that made you both rich?”

They both answered with the same word, at the same time. FOCUS.

Based upon my 25 years of defending violations of probation and community control, I’ve assembled a 5/25 Rule liste for probationers. Here’s the Top 5 things they must focus on to stay out of prison.

(1) drugs–don’t be near them.

(2) drugs–don’t have them in your car.

(3) drugs & friends–don’t hang around friends with drugs.

(4) drugs–if you have to violate rule #1 and rule #2, above, then don’t drive like an asshole. Drive perfect. Maybe you’ll get away with it.

(5) drugs–don’t smoke weed

When you’re on probation, the deck is stacked in favor of the House. Statistically, over half of everyone on probation fails. Our real life case for today is an example of how not to perform while on probation. After all, even bad examples can still teach us something, like, what not to do. Here’s what happened in Towns v. State, 43 Fla. L. Weekly D 2572 (Fla. 3d DCA 2018).

Towns received three years probation for a grand theft auto charge. While on probation, Towns was “driving his own car” (appellate court’s words here, they were trying to be funny) when he was pulled over for a traffic infraction. He had three friends in the car, one front passenger and two in the back seat.

As the officer approached the car to ask for the usual “license & registration”, he noticed the odor of marijuana coming from the vehicle and as such, he ordered everyone out of the car. In case you didn’t know, the odor of cannabis is a legal excuse to search the car, and everyone in it. As a result of this search, the officer found a handgun and several baggies of weed wedged in the back seat.

Towns was arrested for possession of the handgun, and possession of marijuana with intent to sell. As you might expect, these new charges violated his probation for grand theft auto. The appeal we’re discussing today only deals with Towns’ violation of probation. As you might expect, a new arrest will violate your probation. In this case, the probation officer added an extra allegation to this VOP, a claim that Towns was “associating with persons engaged in criminal activity“. Remember, we mentioned that one of the rules for probationers is that they not be around their friends with drugs? Well, the rule is actually more broad than that. Probationers may not associate with criminals in any way, shape, or form.

When the prosecutors sought to send Towns’ to prison on this violation of probation, the VOP becomes a “mini-trial” of sorts, where the state must prove up these new possession charges. As I have written about many times before, it is extremely difficult to prove drug possession when you don’t find the drugs “on” the person. In this case, the drugs were found in a car with 4 passengers. Sure, Towns owns this car and was driving it, but there were two backseat passengers near the drugs, and these passengers were also arrested for possession of cannabis.

Towns was found guilty of violating his probation due to the drug possession and associating with persons engaged in criminal activity. He was sentenced to 5 years prison for this VOP (I don’t know what his sentence was on these new charges and often times, the VOP comes up before the new charges are resolved).

On appeal, Towns argued that the violation for possession of marijuana should be overturned because the state did not prove constructive possession. Remember, Towns was driving a car that smelled like weed, he owned the car, and the car contained weed–yet he claims no knowledge of any shenanigans?

Technically, the problem here isn’t knowledge. To be found guilty of possessing cannabis, sure, you’ve got to know that you’ve got weed, otherwise, every mailman delivering packages with drugs from Colorado would be guilty of a possession charge–but mailmen have no knowledge of what’s inside their packages. Knowledge is only part of the puzzle–you also need dominion and control.

The appellate court overturned Towns’ violation for the new possession charges, finding that the state presented no evidence that he had dominion and control over the drugs and handgun, especially “when two passengers occupied the back seat of the vehicle with easy access to the underside of the back seat where the gun and marijuana had been stuffed . . . [And the] mere smell of marijuana is not proof that Towns had dominion and possession of the drugs.” id. at 6.

So, Towns won. Sort of.

The court did find that he violated his probation by associating with criminals, noting that “even if Towns did not exercise physical dominion and control over the marijuana, the trial court was within its discretion to conclude that evidence of the strong odor of marijuana was sufficient to put Towns on notice that it was in his car. . . [and] that the two backseat passengers were engaged in the criminal activity of possessing marijuana with intent to sell and that Towns consequently violated his probation by associating with them.” id. at 7.

This case was sent back to the sentencing judge, to see if the elimination of the possession charges would render a different sentencing result. The initial sentence was five years prison. The appellate court gave a strong hint in Footnote One of their opinion, stating that “Rather than impose a prison term, the trial court could reinstate probation, increase its length, or modify the conditions.” Hum. You think the lower court will read the footnotes?