One of the most common offices in our criminal Justice system are drug related offense. If you have been arrested for selling, purchasing, manufacturing, delivering, or possessing an illegal drug, there are many defenses that are available to you. When reviewing your case, we start from the time of the original police encounter and move to the time of arrest to determine if any portion of the police action was unlawful. An officer can only search a person pursuant to a protective sweep, in an exigent or emergency situation, incident to an arrest, with your consent, in hot pursuit, to conduct an inventory search, or in the course of a pat down or frisk. If your police encounter was unlawful, then any evidence obtained after the unlawful action can not be used against you. Questions that you should ask are:
The Police Encounter
Was your contact with the officer a result of a citizen encounter?
A citizen encounter occurs when an officer encounters a citizen and the citizen feels free to go, but chooses to remain. Whether or not you felt free to leave will be based on a reasonable person standard and circumstances such as the language or tone of the officer’s voice, whether the officer blocked your path or movement, the number of officers, and whether the officer was in uniform will be considered.
Was your contact with the officer a result of a an illegal stop?
If so, then the officer must have had a reasonable suspicion that you were or were about to be involved in criminal activity. Any search done at this point should be limited to a protective frisk to ensure that you were not carrying any weapons. If there were no objective circumstances to give the officer the reasonable suspicion that he needed to stop or frisk you, then the stop could be unlawful.
Was your contact with the officer an investigatory detention?
An investigatory detention occurs when an officer stops a person and temporarily detains them. The length of the detention must be reasonable. The investigating officer needed to have reasonable suspicion “plus” of impeding or past criminal activity. Our attorneys will review the officer’s reasoning to ensure that it is based on object beliefs and circumstances.
Was the contraband found subsequent to an arrest?
Once you are arrested (for any criminal offense), a police officer has the right to search you and your immediate person, including your vehicle. If contraband is found throughout this search than you can be charged for possession (or trafficking depending on the amount) in addition to your original arrest that prompted the search. However, if the officer lacked probable to arrest you in the first place then any evidence yielded from the subsequent search can not be used against you.
Was the contraband found during the execution of a search warrant?
If so, there are many different factors that can be explored. Initially, the warrant needs to be reviewed to see whether the information that supported the warrant’s issuance was stale. Secondly, the scope of the search needs to be reviewed, i.e. was the contraband found in the location that the search warrant was issued for, or was contraband found in containers that were not reasonably likely to contain what the warrant authorized to search for. Finally, we explore whether the warrant was executed properly, i.e. did the officers knock and announce their presence as required, was it executed within 10 days of issuance.
Where Miranda rights read to you prior to any questioning?
Once you are placed under arrest, your Miranda rights must be read to you before you are asked any questions. If they were not read to you, then any statements that you made after you were arrested can not be used against you.
During questioning did you ever invoke a right to a lawyer?
If you exercised your right to speak to an attorney then any questions that were posed to you after you invoked your right were improper and should not have been asked. Any statements made in response to these questions were improper.
Did you feel coerced or threatened into making a statement?
Consent that is the product of official intimidation or harassment is not consent at all and citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse. If your consent to search resulted from coercion or intimidation, all of the circumstances surrounding the encounter must be considered in ascertaining the voluntariness of the consent, to determine whether police conduct would have communicated to a reasonable person that he was not free to decline the officer’s request or otherwise terminate the encounter. Evidence of coercion may be found from a prolonged detention, a statement that you are free to leave if you consent to a search, a threat to obtain a search warrant if you did not consent to the search, especially when the police lack probable cause or sufficient evidence for such warrant, an implied promise that defendant would not be prosecuted, or a repeated requests for consent.
The States burden of proof
Can the state prove possession?
In order to prove possession, the state must prove that the person had either actual or constructive possession. To prove actual possession, the state must prove that you had knowledge of the presence of contraband and had the ability to maintain control over it or reduce it to possession. In order to prove constructive possession the state needs to prove that the contraband was found in your ready reach and was within your exclusive personal control and access. Depending on the factual circumstance, i.e. where the contraband was found or if more than one person was with you when the contraband was found, there are many different defenses that can be used to negate possession.
Is there a confidential informant involved?
If you were arrested in conjunction with the State’s use of a confidential informant there are many inquiries that need to be made. Questions that should be asked are: Was the CI paid compensation for his or her services? Was the CI attempting to reduce his or her own sentence? Was there a conflict of interest between the CI and yourself? What evidence is there of the reliability of the CI? Is this the first case that the CI has worked on or has he or she done several?
Was the weight of the drugs the correct?
The amount of contraband that you are found with is imperative to your arrest. A gram can make the difference between possession or trafficking charges. It is always important to weight the contraband with a scale that is independent from the law enforcement department.
If you have been accused of a Drug Crime in State or Federal Court DO NOT DELAY, contact Anthony Rickman at The Rickman Law Firm for a free consultation.