An Overview of Drug Related Offenses in the State of California

Interviewer: What kind of drug cases do you normally handle? Are they usually possessions or are they more high level trafficking type cases?

William Kroger: We handle all type of cases everything from simple possession to large scale type drug trafficking organizations.

Interviewer: In all the years that you have been practicing how many cases do you think you've worked on in this area?

William Kroger: Over a couple of thousand minimum.

Federal Cases are Usually Larger Cases and Develop From a Federal Investigation

Interviewer: Do the cases tend to be state or federal. Why would it be one or the other?

William Kroger: We do both, state and federal. I've done federal cases all over the US, I've been in been admitted into over 15 different federal jurisdictions on drug cases. In the state court in California, I've been all over California from the far south to the far north. I've also done some state cases in Georgia and Arizona and a couple of other states as well. But for the most part those are larger cases. Federal cases typically develop out of a federal investigation; or an arrest by a federal agency.

The Factors Which Determine the Nature of the Case are the Arresting Agency, the Quantity of Drugs and Who is Investigating the Case

Interviewer: If someone is a dealer would their case cross into the federal realm or does it usually stay at the state level? What factors into it in order to making it a federal case?

William Kroger: Typically the factors are what agency is arresting you. Possibly what quantity you have, and who is investigating you. So typically if you are in Southern California you can be caught with 100 Kilos of cocaine, I've had clients with over 200 kilos of cocaine and the case has stayed at the state level. I've had clients with several thousand pounds of marijuana stay at the state level in California. But when you've been to other places like Wyoming you can have 50 pounds of marijuana and it could go federal, or you can have an ounce of coke and it can go federal.

It depends on the locality and it also depends on who arrests you. If you are going through an airport, it could be either way, it could be local or it could be federal and I think more importantly it depends on what state you are in, if it's a small police department they might not be equipped to handle something, then the case could go federal.

If Drugs are Apprehended at a Border Crossing, the Case Will Likely be a Federal Case

Interviewer: What other areas the arresting agency will be federal versus state? What have you seen is there correlation?

William Kroger: Typically the airport is the main place where it can go state or federal, or coming across the border obviously from Canada or Mexico to the United States or any other country.

Federal Court is Paper Driven and has a Higher Rate of Convictions as Compared to the State Court

Interviewer: What happens if it is a federal case versus a state case; is it going to be a lot more difficult for you fight it or what kind of things enter into it in that case?

William Kroger: Federal court is paper driven and they have a very high success rate of convictions compared to the state court. Typically a US Attorney will work along the side of the federal agents and review the case as it is ongoing. Also federal investigators are trained by the federal government which expends a lot more money and time on training their agents. In addition, a lot of the federal law enforcement agents are lawyers, right now I'm working with a couple of different DEA agents that are actually lawyers on top of being DEA agents. I've also worked with Beverly Hills police detectives and LAPD detectives that have also been lawyers, but it seems more likely at the federal level.

Their training and education are a little bit higher and they've been on a job for a little bit longer, some of them come from military backgrounds and some of them come from local law enforcement backgrounds. Typically they're educated in the state or in military intelligence, and then they go into the federal system.

What Policies and Procedures Need to be Followed in Federal and State Court for Drug Related Offense?

Common Reaction of an Individual Upon Being Charged With a Drug Related Offense in California

Interviewer: How do you find clients react to being charged on either level? Do they freak out or are they more scared of being charged in the federal levels?

William Kroger: I think more people are afraid of being charged at the federal level, but you can take the same amount of drugs and state level in California and see in the comparison for what you would get in the state versus what you would get in the federal system. Sometimes you'll get less time in federal, for instance if I look at 40 kilos or 50 kilos of cocaine, under the federal system it will be a 10 year mandatory minimum, but if you are able to break it down if you had no prior record and you met the criteria under the guidelines you might get down to a 40 month sentence.

Whereas in the state court, they're looking at a 20 year enhancement plus maybe three years or four years on top of it for just possession the cocaine for sale and then you would do 50% of that time, so when you do the math you actually do more time in state and the conditions in the prisons are much worse than they are in the federal system.

A Case Cannot be Transferred From State Jurisdiction to Federal or Vice Versa

Interviewer: Is it a strategy, I mean can you get a case moved from one arena to the other? Or is that not available to you?

William Kroger: No that really doesn't happen, perhaps if the agencies that did the arrest were on some kind of specialized task force and both agencies were involved, federal and state. I've never seen it done myself, I've never heard of it being done either.

The Federal Government is Revising Laws for Drug Offenders Enabling Moderate Sentencing

Interviewer: You said the sentencing is maybe, so it's not always clear cut at federal, it could be more or less depending on the case, right.

William Kroger: It could be more or less and now the federal guidelines are changing this year. There is a new law for drug offenders that's going to give them a less harsh sentence, so they're getting a couple of levels off of their sentences, if they're drug cases. The federal government is finally opening their eyes and saying; we did sentence these people too harshly and we're going to lower it. Also the sentences may not be as high as in state court.

The Percentage of State Administered Drug Cases is Higher Than Federal Drug Cases in California

Interviewer: What is the split, what is the percentage of cases you get that are federal versus state?

William Kroger: We get far more state cases than federal cases. The reason being it's a lot more arrests being made in the state system. Typically when there is an arrest in the federal system it is usually a lengthy investigation. The U.S. Attorney is usually attached to the case at the investigative point.

There are More Intent to Sell or Distribute Cases Than There are Simple Possession Cases

Interviewer: Of the cases you get, what kind of cases are you getting, do you get more possession or do you get more high level cases.

William Kroger: I'd say the state court is pretty evenly distributed, we get a lot of possession cases, and we get a lot of possession for sale cases. I think we probably get more possession for sale cases, than straight possession cases, when I think about it. Especially when it comes to marijuana they don't really arrest anybody for possession of marijuana that much anymore, but for sales they still do.

Interviewer: All right so if you just possess, they just let you go or they ticket you, what will happen?

William Kroger: A lot of the times they will ticket you, or California has medical marijuana and most people are pretty savvy have their medical marijuana license, so we'll typically let them off. If they don't then we will go to court and I think for the most part we gotten a dismissal on every one of the true medical marijuana case that we fought. So when it comes to marijuana it is more sales or cultivation or transportation or something larger scale than it would be simple possession that are prosecuted.

The Circumstances of the Arrest Determine Whether an Individual Will be Charged With Possession or Trafficking

Interviewer: At what level will they; instead of being charged with possession they'll be charge with; I don't know what they call it; intent to distribute or trafficking.

William Kroger: In California there are two different charges, possession with the intent to sell and the other one is sales and transportation. Typically it is the totality of the circumstances that dictate whether or not it is a sales case or a possession case; you could be caught with an ounce of marijuana but you're caught with a good amount of money and a scale on you. They're going to charge you for sales, whereas under the medical marijuana laws you are allowed to possess up to eight ounces if you have a valid recommendation. But if you are doing it the wrong way and you have money and you have scales or you actually sold to somebody, then they'll get you for possession with the intent to sell or sales.

Interviewer: What if you have just the pure drug, is there a threshold over which they'll charge you with Trafficking or Intent to sell?

William Kroger: Yeah if you have more than a couple of ounces, they're probably going to charge you with possession with the intent to sell.

Common Scenario of a Drug Related Arrest in California

Interviewer: When do these arrests tend to occur, is there anywhere, mostly in cars or in the street.

William Kroger: Mostly in cars, people will pull over in their cars and the officers will say they smell marijuana and once they smell marijuana they have probable cause to search their car. Then once they have probable cause to search the car they can search the whole thing, and if they find a couple of ounces, they will typically arrest you for possession with intent.

But that is how they used to do it quite a bit. So now if they smell it they'll search your car and if they find it and they think you possibly might be selling, they'll arrest you. The way the cops do it, they'll let the court decide, they don't want to let you go and then, have their supervisors say; “Well why didn't you arrest them.” They just pretty much will arrest you if they think that you quite possibly could be selling and they'll let the courts decide or the district attorney decides.

Alternative Punishments or Diversionary Programs for First Time Drug Offenders

Interviewer: Are there any diversion programs for first time offenders or is that not available?

William Kroger: They actually have three different programs and it would be for first time offenders, second time offender and third time offender. They have a deferred entry judgment which is pretty simple, you go and you take 20 classes over 20 weeks, after 18 months the case would get dismissed. Then if you've done that one and failed that class you can't do that again and so you have to do a Prop 36 class, which is a little longer, it takes a year to go through the program and it is more involved than 20 classes. Typically you go through the program if you are successful after a year, between a year and 18 months your case will get dismissed.

Then the last one is called Drug Courts where they actually place the people who failed the other two, what they do is they put you into a program inside the jail for 30 days so that you actually get clean then they will let you out and you can essentially do an out-patient program that lasts a year. You have gone to court every month and you have to go to classes and counseling a couple of times a week.

It is Necessary to Have an Attorney Represent You in Court in Order to Make Sure Things Don't go Wrong

Interviewer: Do you need an attorney to get into these programs or is it really like an issue to get into them?

William Kroger: It's always better to have an attorney to make sure things go right, a lot of times what happens with our client is they're from out of state, or they don't have the time, they're professionals so they don't have the time to go to these classes, because if you miss two then you've got to start from the beginning. What we do is we have the court accommodate their schedule or we get them into some kind of program, through their private doctors, things like that. It's very helpful to have an attorney for a host of different reasons

Interviewer: Are the programs fairly tricky to get into?

William Kroger: No I think because we're so well budgeted for them and I think they are pretty simple and they don't require much.

Cheaper Attorneys Normally do not Have the Same Level of Competence as Their More Experienced Counterparts

Interviewer: All right, you have people in your area that focus on drug cases and charge really low amounts in attorney's fees. What are people missing out if they go with the cheapest one in the area?

William Kroger: Obviously you're not going to get anyone with a good deal of experience. I've been all over the United State fighting drug case and all over California fighting drug cases and we've handled several thousand of them.

By going with some new attorney or somebody who is going to charge a small amount of money, they're probably not familiar with what or how to file motions or they don't have motions that they filed in the past with success. They may not know the district attorney or judge in that court. We've been in front of probably every judge in Los Angeles County, and every court in Los Angeles County including, Catalina Island which is a court that's only open on every other Friday in the afternoon and we've had cases out there and dismissed on both occasions. Having been going to court every day for over 17 years, we know the courts really well. It's what I do.

The Time put in by the Defense Counsel to Formulate and Expedite a Successful Resolution is a Cost Increasing Factor

Interviewer: If it's any other case what is it that costs money, is that hiring experts, is that what costs money in a case? Or what are the things that tend to make the representation more expensive?

William Kroger: It is the time we put into it.The time that it takes for us to draft and file motions. It's really where the cost becomes the factor.

Interviewer: If someone just goes with a cheap low end person, they may not be able to research the law fully; they may not have time to pay attention to the cases as much as they need.

William Kroger: Yeah, they're probably not going to. If somebody is going to a cheap lawyer the chances are that that cheap lawyer has a couple of dozen other really cheap cases and he is going to be spending a lot of time running around and just trying to go to court and not paying much attention to the case. Or seeing if there are any intricacies that he can fight, or if there are any research issues that he may not have the knowledge of that.

The Common Charge Accompanying an Intent to Sell or Distribute is a Conspiracy Charge

Interviewer: When they charge you with intent to distribute are there any other ride along charges that come with it? So do they charge you with possession as well and paraphernalia as well along with other stuff?

William Kroger: Well you know typically if they are going to charge with possession with the intent to sell that is typically what they charge you with. Once in a while they will charge you with a conspiracy charge if you've got a good group of people along with you, or you've got some wire-taps, or something like that they might charge you with conspiracy.

In the federal system, they typically charge you with conspiracy because they don't typically make simple arrests of one person. They usually investigate the case and they'll get a group of people.

A Conspiracy Charge is Defined as When Two or More People get Together to Perform an Illegal act

Interviewer: What does conspiracy mean when they charge you with it? What is involved in that?

William Kroger: Conspiracy technically is when two or more people get together to do an illegal act, to conduct something illegally. When you and your buddy decide to rob a bank or sell some drugs together, that's conspiracy. Two or more people agreeing to commit a crime, so it is pretty simple to put that together.

Conspiracy Charges can add a Period of Time to the Sentence Handed in the Event of a Conviction

Interviewer: What does that do for the possible penalties that they add that on?

William Kroger: Well under the state law what happens is that, if you're charged with selling an ounce of cocaine, the maximum that you could get on that would be three years. Then if you are charged with conspiracy on top of that, then they can add another year and half.

Interviewer: Do they have to bring forth someone else that you would have conspired with?

William Kroger: Yeah, they typically arrest more than one person. There'll be a couple of people, or a few people on the complaint, that have been arrested.

Potential Penalties for Drug Related Charges in the State of California

Interviewer: What are possible penalties or do they vary by drug first of all. How are drugs rated marijuana versus cocaine and meth and other stuff. What are the possible penalties for possession and distribution and conspiracy and all that?

William Kroger: Well the possible penalty is pretty much the same almost across the board for possession of coke or marijuana for sale. Those are all three year maximums and four year maximums. The difference is between possession with the intent to sell and actual sales. Most controlled substance charges face three year maximum or four year maximum depending on how they charge it. Then they have weight enhancements so if you have more than a certain it goes up by the weight of kilos.

California has determinate sentencing, where you are sentenced to a specific term as determined by the court based on your prior conduct and the conduct of the instant case.

The Most Important Aspect in Defending a Drug Related Case is the Search

Interviewer: When you are able to mitigate a situation? Are there certain elements that you are able to get reduced more than others? Are you able to get dismissals or is it typically damage control and a reduction of sentence?

William Kroger: Well it's kind of damage control but the most important part on a drug case is, it seems to be the search. Was the search conducted right, did they violate anybody's Constitutional Rights when they did the search. We have a few cases right now that we have in that they pulled those clients over and looked into their cell phones, and based on what they found in the phones let them to search further places where they officers found incriminating evidence.

Right now we've got two cases right now pending where we filed the motion to suppress everything that was found after they looked in the cell phone, because of the new Supreme Court ruling. We've filed motions to suppress the evidence based on an illegal search, that's how we win quite a few cases. Otherwise if we don't see that there is a chance to win it; what we try to do is mitigate the possible punishment with the prosecutor or judge.

Any Evidence Procured by the Police as a Result of an Illegal Action can be Excluded From the Case

Interviewer: If the Police execute part of the search improperly, does that help to exclude evidence, like when they do go over your cell phone and that wasn't proper, maybe searched the car as well.

William Kroger: A search or anything after the illegal activity would be deemed “fruit of the poisonous tree” which is famous case, the Wong Sun case, so anything that the police gather as evidence after the illegal search or illegal action of the police would be excluded from the case. This particular guy they might be able to get him for whatever he had in his car before they searched the cell which led to his apartment. So we would mitigate the damage down to what he on his possession before they searched his phone.

Interviewer: What other elements, I mean where are areas in terms of the search that is very important that you are able to poke holes in to win the case?

William Kroger: A lot of times it will be searches of cars, if the police pull somebody over because they say their car is not registered, but it is probably registered, we would argue that they pulled him over illegally. Or if they pull him over for making an illegal turn but they didn't make an illegal turn and we can prove it. We would say that the search was illegal or the stop was illegal, therefore the search is illegal, and we would make a motion to exclude evidence.

An Improper Stop or Delay in Writing a Ticket may be Construed as an Illegal act

Interviewer: So the reason for the stop figures into whether a search was done properly or not?

William Kroger: Correct, what's the reason to stop them in the first place and was the stop reasonable as well. I mean did they take too long to write them a ticket, so the dogs could come. If they took too long to write them a ticket, then they're sitting there for half an hour so they could get some dogs to smell the car. That's delayed detention and therefore that's illegal.

Interviewer: How do you gauge the time-line from when someone is pulled over as to the event.

William Kroger: It should be documented in the police report and if it's not in the police report then what we do, we would subpoena the records from the police department because everything is inputted as far as when they have the person pull over. When they called for backup or when they called for the canine. When the canine arrives, so everything is detailed and if they don't turn that over to you right away you have to file a motion in order to request that from the district attorney.

Examples of Notable Drug Cases in California

Interviewer: Can you give me some case results, really interesting or intricate or unusual case that you've done that you've gotten a good result in.

William Kroger: We recently had a trial where a client had over 200 Kilos of cocaine sitting in a secret compartment in his truck. He had a big 18 wheeler, big rig and they had this special compartment built. It's basically called a headache rack; It's a stainless steel plate that goes behind the driver compartment of a semi-truck and it was specifically manufactured so it could hold 220 kilos of cocaine. We actually took this case to trial three times. The first two times we had a hung jury and the last time we got a not guilty verdict and our defense was based on the fact that he had no knowledge it was there. That somebody had put the cocaine in his truck without him knowing it, as he was driving it across country. That was a pretty recent case.

A Hung Jury Can Result in Either a Dismissal or a Re-Trial as per the District Attorney's Decision

Interviewer: How was it they were able to take it to trial three times? I thought once and you're done.

William Kroger: We had hung juries. Which means that there's no definite outcome of the case, they couldn't decide one way or the other and then at that point, the district attorney can either say okay, we give up, you guys put on a good case so we're going to call it a day. Or they can say, hey we think we're going to win this case, so we're going to try it again. That's what they did, they did it two more times. So that was an interesting one we just had. I had another, I had an interesting marijuana grow case where my client had a couple thousand marijuana plants growing indoors and he had about five individuals working for him, you know because this is a full time operation and everything was really good. He was very well protected, he covered all his bases.

It just so happened though, one of the workers was friends with a guy who was wanted for a potential murder. So the police, this special homicide division had been tracking this potential murder suspect and they were watching his phone. They had a location on his phone so they were watching his phone, tracking it to see where it would go and he actually was out one night with the worker of the grow and he lost his phone. The person who worked at the grow said, hey no problem, I'll just take it to work with me and I'll bring it to you tomorrow night. He had no idea the phone was being watched so he took it to work, to the grow and the homicide detectives saw that the phone was there, stationary for a couple hours so they thought that would be a good time to go and get this murder suspect.

So what they did is, they did a forced entry to get this felon, potential felon and they found all these marijuana plants. They ended up arresting all of them and the end result was I was able to get four of the people dismissed out of the case and the last person who was left is ending up getting a misdemeanor with a little bit of community service. That's for about 2,000 marijuana plants.

In the Case of a Potential Felon Evading the Police, Warrants are not Required

Interviewer: Wow, that's crazy. Was that because the reason for entry was, was it a warrant based entry, was it limited to just the suspect?

William Kroger: No, when you have what's called a fleeing felon, when there's a potential felon that's evading the police, you don't need a warrant. That's one of the exceptions that has been carved out for the warrant requirements, is fleeing felon. There's also you know, as you mentioned earlier, plain view, exigent circumstances, public safety exception. There's a lot of different exceptions to having a warrant.

A Particular Portion of the Highway Known as the Green Highway is Subject to Operation Pipeline Conducted by the Police Targeting Drug Traffickers

Interviewer: Can you give me the example of,maybe the number one type of case you have, what happened in one of them.

William Kroger: You know, there's not a number one type of case we have but we have had several people pulled over. There's a particular portion of the highway that goes from Northern California to Southern California, it's called the green highway. People transport marijuana there and the sheriffs know it and the DEA know it and there's an operation called Operation Pipeline, where they basically wait and they somewhat profile cars driving down the freeway and if they think that person might have a good amount of marijuana on them, they'll get behind them and figure out a way to pull them over what's called a pretext stop, whether they're speeding or they're swerving or following too closely. They'll pull them over, then they'll just go search their car based on the fact that they typically smell marijuana.

Some of these clients actually were actually smoking marijuana while they're driving or they'll have it in the car, so it gives the police probable cause to search it and then go search it. We've got cases like that in that particular situation; I think the minimum we've gotten was about five pounds of marijuana. We've got up to 50 pounds of marijuana. We had one case that was 57 kilos of cocaine, that was stopped in that area by the same department. That's something that we see quite a bit is the I-5 interdiction or the I-5 pipeline, Operation Pipeline, which is right in northern Los Angeles as people are coming into Los Angeles.

Another Example of a Drug Case Resulting in a Favorable Outcome

Interviewer: Maybe just one more example of the craziest case that you ever had that you had a good result on.

William Kroger: I've had so many crazy cases, it's a hard one to. The craziest case was one where the cops were blatantly lying, how about something like that? I had a client that was pulled over and the police in the report wrote that he did not have his little DMV sticker on his license plate and therefore his car was not registered properly. It was his father's car, his father was a retired government employee. He came and testified in court that not only did he register the car himself, but when he left the DMV, he put the tag on the license plate and he took an Exacto knife and crisscrossed it so nobody could peal it off. We were able to prove that the police blatantly lied about the registration tag not being there by calling a former government employee to testify that he put it on there and it was there.

I also have a really interesting case. I had an interesting case where my client was driving, and this guy was like a driving drug store, he had coke, he had meth, he had pot, he had everything. The police department pulled him over, but the police department actually had what's called a ride along, a citizen who can go along for a ride in the car, you know just observe what's going on. To have a good time or something that they want to do, they're just voluntarily doing it. So they're pulling my client over and the ride along says, why are we pulling him over and the cop says, he's got a registered tag. The ride along says, no it's registered I could see the tag and the cop says, well, we're already pulling him over so we'll just finish up and pull him over. Okay.

So they pull him over and the bonehead actually has a knife on his seat that was over five inches, so there was probable cause to search his car. They search the car and they find all these drugs and they charge him with possession with intent to sell coke and meth and pot and we thought, when we looked into it before we saw that this guy was doing a ride along, so we had our investigator go interview this guy and he told me and our investigator that yeah, he was in the car, that the car was registered, but they pulled him over anyway because they were already pulling him over. Based on that, we filed a motion to exclude all the evidence based on an illegal search and we filed that and judge ruled in our favor, basically told my client that he won the lottery that day, that he was very lucky. That was an odd one too, I mean, it just kind of shows the mindset of the police sometimes when they make, when they're conducting these investigations.

In that same exact court, we had a judge return over 20 pounds of marijuana to my client. We were putting on a defense that he owned and operated a valid medical collective under the state of California and they had to let 20 pounds of marijuana and we got the judge after a two day hearing, the judge signed an order returning the marijuana. He actually went into the sheriff's department, I accompanied my client to make sure nothing would happen and lo and behold, we picked up these 20 pounds of marijuana. I went with him and the co-defendant to the sheriff's department and whole sheriff's department was in there watching this happen and they were pretty pissed off about the whole thing. But he walked out with his duffel bags of marijuana over his shoulders. So, you know, strange things do happen in California.