When you think about Florida, what comes to mind? Sunshine, beaches, resorts? How about cocaine? Florida is one of the biggest ports of entry into the United States for cocaine – “Miami Vice” was based on the actual massive cocaine trade that poured through Florida in the 1970’s and 1980’s. While the cocaine epidemic has slowed, cocaine is still prevalent in the Sunshine State. Drug use in Florida is the same as it is in the rest of the country on average, but cocaine accounts for more than 60% of drug-related arrests in Florida. If you’re concerned or just curious, keep reading to learn about the law on cocaine in Florida.
First, let’s take a look at what we’re dealing with. Drug law covers all manner of controlled substances, but here we’re looking at cocaine. It may be called snow, blow, coke, zip, yay, or any of dozens of other nicknames. Most of the nicknames refer to powder cocaine; cocaine also comes in “crack,” or freebase, form. Crack and cocaine come from the same place – the leaves of the coca plant in South America. The leaves are picked and soaked in chemicals (including gasoline) to extract the coca base. The mixture is filtered, dried, and processed further to create powder cocaine. To make crack cocaine, the powder cocaine is processed with baking soda and water. Crack cocaine takes the form of small rocks and can be smoked. Crack cocaine is much less expensive than cocaine. Crack is also punished differently under federal drug-trafficking law.
In general (although recent developments in some states are changing the game for marijuana), if you’re arrested for a drug offense, you’re facing twice the trouble – it’s illegal under both state and federal law. If one declines to prosecute, you may still face time under the other. Generally, simple possession of a controlled substance will be tried under state law. Trafficking violations are generally tried under federal law, which typically allows harsher punishments. Florida, however, has instituted strict laws in an attempt to curb the roaring blow trade and Florida’s state law punishments are often harsher than the equivalent federal ones.
In addition to liability under state and federal criminal laws, you’ll probably face civil penalties in addition to your criminal ones. Civil penalties come in the form of fines. Under federal law, you’ll have up to an additional $11,000 in fines (depending on your income and assets) on top of your criminal penalties.
The laws regarding cocaine vary based on the quantity of cocaine involved. The quantity is measured by weight – regardless of the purity. If the police find a mixture that’s 99% flour and 1% cocaine, the weight of the whole mixture counts. One kilo of that mix would be punished the same way as one kilo of pure cocaine.
Possession of Cocaine
Possession is the least serious drug offense. To convict you for possession under Florida state law, the prosecution must prove that you were “in actual or constructive possession of a controlled substance” without a prescription. West’s F.S.A. § 893.13(6). First, you have to know that it’s a controlled substance. If you borrowed what you thought was baby powder from a neighbor and it turns out to be cocaine, you’re in the clear. If you have a bag of what you think is heroine and it turns out to be cocaine, that’s no defense.
Second, you have to actually or constructively possess the controlled substance. Basically, you have to have the controlled substance on your person or in a place that you control – your car or your home, for example. If police found drugs on a table in a home you share with roommates, the state would have to prove that the drugs belonged to you specifically or that you specifically had control over them.
Under Florida state law, “possession with intent to sell” of less than 10 grams of cocaine in any form is a third-degree felony, which is punishable by imprisonment for up to 5 years and a fine of up to $5,000. § 775.082 – 775.083. Possession of more than 10 grams is a first-degree felony, which is punishable by imprisonment for up to 30 years and a fine of up to $10,000. Id. Repeat offenders face more severe punishments and are not eligible for parole or any form of early release. § 775.082(9). Federal law allows for imprisonment for up to 1 year with a minimum fine of $1,000 for a first offense. For repeat offenders, the punishments increase to up to 3 years in prison and a minimum fine of $5,000. 21 U.S.C.A. § 844.
Sale of Cocaine
To be convicted for the sale of a controlled substance under Florida state law, you have to knowingly exchange the controlled substance for money or in trade. West’s F.S.A. § 893.13(1). If you sell less than 10 grams, it’s a second-degree felony. That means you may be imprisoned for up to 15 years and fined up to $5,000. § 775.082 – 775.083. If you sell more than 10 grams, it’s a first-degree felony. That means imprisonment for up to 30 years and a fine of up to $10,000. Id.
Under Federal law, the sale or distribution of less than half a kilogram of cocaine falls under the “simple possession” law and is punishable by up to a year in jail and a minimum fine of $1,000. 21 U.S.C.A. § 844.
Trafficking or Selling Cocaine
Trafficking is the most serious drug-related charge. To prove that you’re trafficking cocaine under Florida state law, the state has to prove that you knowingly sold, purchased, manufactured, delivered, brought into Florida, or possessed more than 28 grams of cocaine. Here, as above, you have to know it’s cocaine and you have to be in actual or constructive possession of it. Of course, it’s difficult to argue that you thought you were buying 100 kilograms of shrink-wrapped baby powder from Colombia. The state also doesn’t have to prove that you were selling the cocaine – possession is enough.
If you’re caught with 28 to 200 grams, you’re looking at a mandatory minimum of 3 years in prison and a $50,000 fine. West’s F.S.A. § 893.135. For 200 to 400 grams, you’ll have a mandatory 7 years in prison and a fine of $100,000. Id. For 400 grams to 150 kilograms, you face a mandatory minimum of 15 years in prison and a $250,000 fine. Id. If you’re caught with more than 150 kilograms, you’ll be imprisoned for life without parole. Id.
Under federal law, trafficking rules kick in when you’re caught with more than half a kilogram. For possession of more than half a kilogram and less than 5 kilograms, you face a mandatory minimum sentence of 5 years and you may get up to forty years. 28 U.S.C.A. § 841. You’ll get the same sentence for possession of more than 28 and less than 280 grams of crack cocaine. For a quantity of five kilos or more (or 280 grams or more of crack), you’ll get a mandatory minimum of 10 years and you may be imprisoned for life. Id.
Maintaining Drug-Involved Premises
Not only can you not possess or distribute cocaine, under federal law you can’t knowingly “open, lease, rent, use, or maintain” property for the purpose of manufacturing, distributing, or using controlled substances. The criminal penalties include imprisonment for up to 20 years and a fine of up to $500,000. The civil penalties (which can be piled on top of the criminal ones or treated individually) allow for a fine of up to $250,000 or double the gross receipts of the drug-related activity that happened on the premises. 21 U.S.C.A. § 856.
Upping the Ante
The consequences for possessing, selling, or trafficking are serious all on their own. Under certain circumstances, they may be even higher.
If someone is seriously hurt or dies as a result of cocaine trafficking activities, you have committed a capital felony under Florida state law. West’s F.S.A. § 893.135(2). This applies if you kill someone or cause him or her to be killed in the pursuit of trafficking cocaine. The death doesn’t have to be the inevitable result of your activity, just the natural one. A capital felony in Florida is punishable by death or by life in prison. § 775.082(a). Under federal law,
If you’re caught within 100 feet of a school (including colleges) or youth center, you face double the penalties under federal law and a minimum of one year in prison for a first offense. For a second offense, you’ll face triple the allowable penalties with a minimum of three years in prison. 21 U.S.C.A. § 850.
Possession within 1,000 feet of a rest stop or truck stop will double your time under federal law. If it’s not your first offense, your time will triple. 21 U.S.C.A. § 849. The same goes for distributing cocaine to an individual who is under 21 or employing a person under the age of 18 in any way connected to controlled substances. Your prison time will double if it’s your first offense and triple if it’s not. § 859, 861.
In general, any subsequent offense carries a harsher penalty than your first one.
Evidence and How They Can Get It
You’ve probably heard of Al Capone. He consistently escaped conviction for his many crimes because the state couldn’t put together evidence linking him to the crimes. Without evidence that proves your guilt beyond a reasonable doubt, you can’t be convicted. So where can the state get the evidence it needs?
See also: the arrest affidavit in Florida
This is a complicated question and one that engenders much legal debate. The Fourth Amendment protects U.S. citizens’ rights relating to search and seizure of their homes and property. In general, law enforcement must have a warrant to enter your home or search your property. Generally, evidence discovered by law enforcement officers without a warrant is not admissible at your trial and can’t be considered by the jury. However, the cops may not need a warrant if you’re not in your home.
Florida has a “stop and frisk law” that allows the police to stop you on the street under “circumstances which reasonably indicate that [a] person has committed, is committing, or is about to commit a violation of the criminal laws of this state.” West’s F.S.A. § 901.151. The officer can only ask the person for identification unless the officer has “probable cause to believe” that the person has a dangerous weapon. If the officer believes that, he can search the person and seize any evidence he finds of criminal activity. Id. In other words, if you’re walking around with a bag of coke in your pocket and a police officer thinks you look suspicious, he can stop you. If he believes you’re armed, he can search you. If he finds the drugs, he can arrest you and use the drugs as evidence in court.
The statute seems to leave a lot of room for interpretation, but the case law closes many of the loopholes. The officer must have specific, articulable, factual reasons to detain a person. A “hunch” isn’t good enough. Williams v. State, 4D12-2964, 2013 WL 6081873 (Fla. Dist. Ct. App. 2013). Once you’ve been detained, however, a clenched fist is enough to give the officer probable cause to believe you’re armed (small weapons may be held in a fist). Id. The officer has to have a real reason to stop you in the first place, but it’s not difficult for them to search you under the premise that they thought you might be armed. If you’re detained, stand still and keep your hands in clear sight, away from your pockets and waistband.
A police officer may not detain you, arrest you, search you, or seize your property without probable cause. Probable cause on the part of a police officer exists if the totality of the facts and circumstances would cause a reasonable person to believe that an offense has been committed (for an arrest) or that property is contraband or has been used in a crime (for a search and/or seizure). 22 Fla. Prac., Criminal Procedure § 2:11 (2013 ed.).
Officers may not search your home without a search warrant. A judge may issue a search warrant if she has probable cause to believe that the house is involved in drug use or trafficking. A finding of probable cause only requires the sworn affidavit of a credible witness.
The Bottom Line
If you face charges for a drug-related offense, you still have rights. Keep careful records of the incident in question and your dealings with police and the state. Reach out to an experienced criminal defense attorney to protect your rights and interests and help you through the complex criminal litigation process.