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5 Effective Drug Possession Defense Strategies
#1. ASK THE COURT TO SUPPRESS THE EVIDENCE
If the police violated your constitutional rights when they seized the drugs you are alleged to have possessed, you can ask the judge to suppress the evidence. In the right case, a motion to suppress can be an especially effective defense to drug possession charges. If the motion to suppress is granted, the case will probably be dismissed without a trial. The prosecution cannot use evidence gained by violating the law. Therefore, the substance that was illegally seized cannot be admitted into evidence nor can the results of a lab test conducted on a substance.
A. Search Warrants
The Constitution prohibits the government from conducting unreasonable searches and seizures. As a general rule, police are required to get a warrant before searching any place or item in which a person has a reasonable expectation of privacy– her home, office, hotel room, luggage, sealed packages, and mail, for example.
To get a search warrant, the police must provide a judge or magistrate with one or more affidavits (written statements under oath) reporting the observations of confidential informants, private citizens, or police officers. The affidavits must provide probable cause to believe that the search will reveal contraband or evidence of a crime.
Searches pursuant to a warrant can be attacked for several reasons, for example, the affidavit may contain false statements or fail to establish probable cause, the warrant may not be sufficiently specific, or the search may be beyond what the warrant allows.
B. Warrantless Searches
Not all searches require a warrant, however. Many exceptions allow the police to conduct warrantless searches. The rules on warrantless searches are sometimes vague and not infrequently police exceed permissible bounds and conduct a questionable searches.
Warrantless searches that are often used by police to find drugs include:
Search with consent. Police do not need a warrant or probable cause to search a person or place when a person with the right to do so consents. Consent must be given freely and voluntarily. Consent extracted by intimidation orlies is not valid.
Drugs are in plain view. When the police are in a place where they are entitled to be, they can seize evidence that is in plain view. They must have probable cause to believe the item they seize is contraband or evidence of a crime.
Search incident to arrest. When police lawfully arrest someone, the areas accessible to the arrestee can be searched incident to the arrest. If the arrest is without probable cause, the evidence obtained during the search can be suppressed.
Automobile search. An automobile that is readily mobile may be searched without a warrant if there is probable cause to believe the vehicle contains contraband or evidence of a crime. If the vehicle is validly stopped, the passenger compartment may be searched for weapons for the officer’s protection if the officer has a reasonable suspicion weapons will be found.
Frisks. Police may frisk a suspect when they have a reasonable suspicion that the person is armed and dangerous. The frisk is a limited pat-down for weapons.
C. Common Scenarios
The outcome of a motion to suppress can never be guaranteed. However, here are some common scenarios in which the police arguably overstepped and a motion to suppress has a good chance of success. They are by no means the only situations in which a search can be challenged.
•The police ask for permission to search a person’s home, car, office, hotel room, etc. and she agrees. Drugs are found. But she agreed only because she was intimidated or tricked. For example, the officer asked with his hand on his gun and did not tell her she had a right to refuse. Or the officer falsely told the woman he could get a search warrant when he could not or falsely told her a drug dog had alerted.
•A home is searched pursuant to a search warrant. The warrant application is based on an affidavit that contains several materially false statements because police used an affidavit from an earlier case and did not revise it to fit the facts of the current case.
•A search warrant authorizes the search of a home for stolen TV’s. The police open a dresser drawer where a stolen ATV could not possibly have been hidden and find drugs.
•The police knock on the door of a house to talk to residents. They do not have a warrant. No one answers so they go around to the backyard and enter an area that is fenced off, posted with a no trespassing sign, or surrounded by a hedge where they find drugs.
•The police bring a drug-sniffing dog up to the window of a house and the dog alerts. The U.S. Supreme Court has ruled that police cannot bring a drug-sniffing dog up to the door of a home in the hopes of creating probable cause to obtain a search warrant.Florida v. Jardines, 569 U.S. 1 (2013).
•A person is arrested after emerging from a house or an alley that the police were watching because of suspected drug activity. Drugs are found in his backpack. But the police never saw him engage in a handoff or other suspicious activity before arresting him.
Police often stop cars for minor traffic violations and then look for a justification to search the occupants or car for drugs. Here are some examples of motor vehicle searches that could be challenged with a motion to suppress because the police arguably exceeded their authority:
•Police stop a car for a minor traffic violation. The driver is cooperative, his license and registration are in order, and he is not wanted for any crime. The police order him out of the car and pat him down for “the officer’s safety” finding a small quantity of drugs in his pocket. The police never saw any evidence the driver was armed, no crime had been reported in the vicinity, and the area was not a high-crime area.
•Police stop a car for a traffic violation. No drugs or weapons are found when the occupants are patted down.
#2.CHALLENGE THE PROSECUTION EVIDENCE OF POSSESSION
The prosecution must prove beyond a reasonable doubt that the defendant possessed a controlled substance.
A. The Two Types of Possession: Actual and Constructive
The law recognizes two types of possession, actual and constructive. Actual possession means you have the drug on your person (e.g., in your hands, mouth, pockets, purse, or backpack). Constructive possession means you do not have the drug on your person but you have control over it
Example: Don purchased several hydrocodone pills illegally and placed them in his medicine cabinet from which he could retrieve them whenever he wanted. If the police find the pills in his medicine cabinet, Don could be charged with constructive possession of the pills even though he did not have physical possession of them.
B. Factors that Indicate Constructive Possession: Proximity and Control
The totality of circumstances determines if a person constructively possessed an illegal substance. Proximity to the drugs, that is how close were the drugs to the defendant, is one factor that courts consider. But courts have consistently ruled that proximity alone is not sufficient to convict a person of constructive possession of a controlled substance.
Another important issue is whether the defendant had sole control of the area where the drugs were found.If multiple people are in an area, it can be difficult or impossible for the prosecution to prove which of them controlled any drugs that are found.
Example: Bob has a party at his house with several guests. After a lot of drinking, a fight breaks out. The police are called and they find a bag of cocaine on a table. The cocaine could belong to anyone attending the party. June,a party guest, was sitting next to the table, but without additional evidence, it would probably be difficult for the prosecution to prove she possessed the drugs or intended to possess the drugs.
By contrast, if a person has sole possession of a house or room, constructive possession is more easily proven.
Example: Bob lives alone, keeps to himself, and never has parties or guests. If the police found cocaine on a table in Bob’s home, the prosecution will probably be able to prove that Bob knew about the cocaine and had constructive possession of it because he had exclusive possession and control of the house. Seldom does anyone live so isolated from other people. Often two or more people reside in a house or apartment.
Example: Rick shares his home with three roommates. If cocaine is found in the house, Rick might be a suspect, but in most instances, the prosecution would have to provide additional evidence that Rick knew the cocaine was present and intended to maintain control over the drug. However, the prosecution would probably be able to prove constructive possession of the cocaine were found in a closet in Rick’s room which he always kept locked and to which he alone had the key.
Even when a home has a single occupant, circumstances could indicate another person had control of the drugs.
Example: Ray’s fiancée frequently visits his home. Because Ray is the home’s sole resident, a bag of cocaine on the coffee table would probably be sufficient evidence for the jury to conclude the drugs belonged to Ray. However, Ray could raise the defense that the drugs belonged to his fiancée and he did not know the drugs were in the bag and had no intent to control them. The jury would then determine if they believed Ray.
C. Innocent Possession
Having an illegal drug in your immediate area or your possession does not automatically mean you have committed a crime. Most crimes have two aspects. The defendant must (a) commit a bad act (b) with the intention to do a bad act. The same is true with possession. A person may have possession of an illegal drug for an innocent reason.
For example, fleeting possession can be a defense. Fleeting possession typically applies when a person takes possession of a drug to dispose of it. A California case illustrates the point and also the necessity of knowing all the details before making a judgment. A neighbor saw Andy, the defendant, lean into the passenger side of a car, slap the passenger, take a red bandanna from the car and throw it into a field. Andy then drove off with the passenger still in the car.
The neighbor called the police and an officer found the bandanna in the field. It contained heroin. No one disputed that heroin was in the bandanna, no one disputed that Andy took the bandana from the passenger, and no one disputed Andy knew heroin was in the bandanna. He was convicted of possession of heroin.
Andy appealed his conviction. Here his motives became important. Andy observed the passenger was drowsy. He was concerned the passenger had overdosed and was losing consciousness. He slapped the passenger to revive him. He took the heroin from the passenger so he could not shoot-up again. He drove the passenger to a fire department and explained the passenger needed oxygen. He was given oxygen and transported to a hospital. And waited at the fire station for the police to arrive.
So, Andy acted responsibly. He placed himself in legal jeopardy to save someone else. He recognized the symptoms of his friend’s overdosing and acted promptly to get medical assistance for him.
The California court ruled that Andy only held the drug long enough to dispose of it and that did not constitute illegal possession of the heroin. Furthermore, the Court noted there was no evidence that Andy intended to resume control of the drug when he threw it in the field. He abandoned the property. If Andy had returned to the field to retrieve the drug, the Court probably would have come to a different conclusion. People v. Mijares,6 Cal.3d 415, 99 Cal.Rptr. 139, 491 P.2d 1115 (Cal. 1971).
Andy engaged in all the behavior that constitutes illegal possession. However, he did not intend to commit a crime.
A New York court reached a similar conclusion when a bar’s bouncer was arrested for possession of 14 packets of cocaine that he confiscated from a patron who was entering the bar. People v. EC,195 Misc.2d 680, 761 N.Y.S.2d 443 (N.Y. Sup. Ct. 2003). The bouncer’s boss told him to confiscate illegal drugs from anyone entering the bar; then deliver the drugs to the security agency that hired him. The security agency’s policy was to turn the drugs over to the police.
The New York court ruled a person could have a legal excuse for possessing illegal drugs. The bouncer was entitled to jury instructions on innocent possession. A jury would then determine if the bouncer had the intent to maintain control of the drugs or had an innocent intent.
A word of warning, these are state cases. State courts from different states may reach different results on similar facts.
D. Disputing Possession
What seems like a simple element can be a big problem for the prosecution. Granted, the prosecution will have a relatively easy time proving possession if a defendant is found with a large amount of cocaine in his coat pocket. However, the prosecution often has to rely on constructive possession.
Example: Ann leases an apartment but has a couple of roommates. The police find a marijuana plant on the window sill. Ann is charged because the apartment is in her name.
At trial, Ann’s defense attorney cross-examines the arresting officer asking him if he was aware other people lived in the apartment. The officer answers “yes.” He adds that only Ann’s name was on the lease. So, he arrested Ann.
Questioning the officer about the other residents accomplishes two purposes. First, at the least, it will raise a doubt in the juror’s minds concerning who owned the marijuana plant in the window. Second, mere proximity to drugs is insufficient to sustain a conviction. Therefore, the judge may dismiss the charges without the case going to the jury. However, since Ann is renting the apartment the judge may let the jury decide it.
Example: Suppose instead that Beth was visiting Ann when the police came. Beth was sitting in a chair close to the window. Beth is charged with possession of marijuana, but the prosecution has no incriminating evidence other than Beth’s proximity to the marijuana plant. In such a weak case, Beth’s attorney would probably ask a few questions at trial so that the witnesses are not inadvertently prompted to add a detail that would link Beth to the plant. At the close of the prosecution’s case, the defense attorney would then ask the judge to dismiss the charges. There is a good chance the judge would do so.
Frequently in drug cases, proximity is the most significant piece of evidence the prosecution can present.
Example: Sam is well known by the police to be a crack addict. The police see Sam asleep or passed out in a back alley and a crack pipe is lying within three feet of him. The pipe has sufficient crack residue that a person who had the pipe could be charged with possession of crack.
There is a good chance the police are going to arrest Sam. Here is the problem with the case. Sam is not the only crack addict on the streets. Also, no evidence, other than proximity, links Sam to the crack pipe.
In Sam’s case, the defense attorney may ask the police whether other people enter the back ally. The obvious answer is yes. The defense attorney may ask the officers if they monitored the area before Sam was found to establish a crack pipe was not already on the pavement. The police will probably answer no. Next, the attorney will ask: “Then you do not know if another person left the pipe on the street, do you?”
If the judge does not dismiss the case against Sam, Sam’s attorney can drive home the point the prosecution has to prove its case beyond a reasonable doubt in the closing argument. Jurors may think the pipe probably did belong to Sam. However, the belief the pipe probably belonged to Sam is not enough. Beyond a reasonable doubt requires a higher level of certainty than “probably.”
The prosecution may try to allege a defendant constructively possessed a controlled substance in numerous situations. Assumptions and prejudices simply do not stand up when a defense attorney argues a case to a disinterested jury.
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5 Effective Drug Possession Defense Strategies – Continued
#3.CHALLENGE THE PROSECUTION EVIDENCE OF KNOWING POSSESSION
To convict a person of possession of a controlled substance, the prosecution must prove beyond a reasonable doubt that the person possessed the drug knowingly. There are two aspects of “knowingly.”
A. Knowledge that the Substance Is a Controlled Substance
First, the prosecution must prove the defendant knew the substance was a controlled substance, i.e., that it is illegal or available by prescription only.
Example:Betty has a bad headache. She is having dinner with Joel and complains about her headache. Joel says,“I have something for that.” He gives her a few pills and tells her they are “maximum dose” aspirin he picked up at the drug store. Betty has no reason to believe otherwise and takes a couple of pills home with her. The pills are Percoset. Betty leaves the pills in a baggie on the passenger seat of her car. On the way home, she is stopped for rolling through a stop sign. The officer sees the pills in plain sight in her car and arrests her for possession. Betty has a defense to a possession charge because she made a mistake of fact. She believed the pills to be aspirin.
B. Knowledge of Possessing a Controlled Substance
Second, the prosecution must prove the defendant knew he or she had possessed the controlled substance.
Example:Leo, Melissa’s boyfriend, asks her to drop off a box at his brother’s house on her way to work. He tells her it’s a birthday gift for the brother. Melissa tosses the box in her car and drives off. A police officer stops her for an expired registration sticker on her license plate. He asks her if he can look in the box and she says ok. The officer finds cocaine. Melissa possesses the package and the drugs but does not know the drugs are in the package.
In numerous situations, a person may possess a controlled substance and not know it. For example, trace amounts are frequently not considered sufficient evidence of knowing possession. A small amount of marijuana on a car’s floorboard may be undetectable by a person in the car. Similarly, trace amounts in a person’s coat pocket may be insufficient to sustain a conviction without other evidence.
For example, one court ruled a trace amount of cocaine found in the defendant’s pants pockets was so small that there was insufficient evidence to convict him. The arresting officer did not find the drugs in the defendant’s pocket. The cocaine was not discovered until the clothes were examined in a laboratory by the forensic examiner. The examiner testified the cocaine could have been observed by the naked eye, but the amount was insufficient to weigh.
The court noted the absence of any evidence that indicated the defendant knew the cocaine was in his pockets. Consequently, the trace amount was insufficient to prove the defendant knew he had possession of cocaine. Hudson v. State,30 So. 3d 1199 (Miss. 2010)
On the other hand, in another case, the defendant possessed 2.10 grams of methamphetamine in a form-fitting coat pocket. The pocket also contained a cigarette lighter and her license. The court noted the form-fitting jacket made it more likely the defendant knew the methamphetamine was there even if it, as she claimed, the jacket belonged to a friend. The court also mentioned the lighter and license in the pocket as reasons the defendant knew the drugs were present. People v. Evansarti, No. G052306 (Cal. App. 2017).
Similarly, if the defendant’s behavior indicated he knew the drug was present, a trace amount can be sufficient for a conviction.
Example: David is driving a car and is pulled over by the police for speeding. The police officer sees David throw a foil wrapper from the car. The officer retrieves the wrapper and finds a trace amount of a white powder rolled up in the wrapper. The white powder is methamphetamine. David argues he borrowed the car and did not know the drugs were in the car. Standing alone, that might be a successful argument. However, David’s throwing the drugs from the car could be interpreted as knowledge of guilt.
#4.CHALLENGE THE PROSECUTION’S IDENTIFICATION OF THE CONTROLLED SUBSTANCE
To convict a person of possession of a controlled substance, the prosecution must prove beyond a reasonable doubt that the substance on which the charge is based is a controlled substance.
A. What is a Controlled Substance?
Controlled substances include both drugs that have no legal medical use such as crack, heroin, and cocaine, as well as prescription medications such as Percocet and Xanax. Possession of prescription medication is not illegal so long as you have a valid prescription for it. A word of caution, state laws typically require controlled substances that are prescribed to be kept in the bottle with the labeling information that was supplied by the pharmacy.
B. The Prosecution Must Prove the Substance Is Illegal to Possess
The prosecution must prove the substance is illegal or illegal for the defendant to possess.
Often a police officer conducts a field test with a portable testing kit to determine if a substance is illegal. Some officers have training in how to identify a substance without a chemical test. Field tests and the officer’s observations are used to establish probable cause that a crime has been committed. Probable cause gives the police a justification to make an arrest.
Field tests and the officer’s observations are insufficient to prove beyond a reasonable doubt that a substance is illegal. A laboratory analysis is typically the only way for the prosecution to prove beyond a reasonable doubt that a substance is a controlled substance.
Field tests are often inaccurate and routinely produce false positives. Even though laboratory analysis is required to get a conviction at a trial, some courts will accept a guilty plea based on field test results. Many innocent people make the mistake of pleading guilty when a field test is positive for an illegal drug.
C. The Prosecution Must Establish a Chain of Custody
The next step in identifying whether a substance is a controlled substance is to establish a chain of custody. At trial, the prosecution must show the substance that was tested was the same substance that the police claim was the reason for the arrest.
Example: George is arrested for possession of cocaine. The police take custody of a white powder found in George’s car. At trial, the prosecution presents a laboratory analysis of a white powder indicating that it is cocaine. However, the question remains whether the powder that the lab tested is the same substance that the police removed from George’s car.
To prove that the substance tested was the substance the defendant possessed, the prosecution must establish a chain of custody. A chain of custody for controlled substances should contain the following general steps.
•A police officer places the suspicious substance in a sealed container.
•A notation is made of when and where the substance was obtained.
•The container is stored in a secure area.•A record is maintained of who has access to the substance.
•The laboratory receives the sealed container and a lab analyst opens it.
•The lab analyst documents when the container was opened, what procedures were performed on the contents, and who had access to them.
•The material is resealed and placed in a secure area.
•All steps are documented
D. Remedies for a Break in the Chain of Custody
There are two remedies when a chain of custody is broken. A relatively minor break in the chain typically goes to the weight of the evidence. The evidence is admitted for the jury’s consideration. The break in the chain of custody is called to the jury’s attention and the jury decides whether to believe the evidence or not.
When a significant break occurs, the court can keep the test results from the jury. For example, a Hawaii court ruled lab tests inadmissible when the analyst who conducted the test was not in the courtroom. A break in the chain of custody occurred since the analyst was not present to explain what happened to the substance while it was in his possession. Since the substance tested was powder, the court observed it would be readily susceptible to alteration or substitution. State v. Lopes, No. 29369 (Haw. App. 2010).
A serious breach in the chain of custody was also reported in a Minnesota case. State v. Conlin (Minn. App. 2014. In conlin, a police officer/dog handler removed marijuana from the evidence locker so the marijuana could be used to train a dog. He failed to make a record in the chain of custody log that he removed the marijuana from the evidence room. Then, he failed to return the marijuana to the evidence room immediately after using the substance for a dog training exercise. He placed some of the marijuana in a gun safe and placed the remainder of the marijuana in two other lockers. The officer who used the marijuana for the training exercise testified he returned the marijuana in the gun safe to the evidence room, but someone else removed the marijuana that was in the other lockers.
The trial judge ruled the marijuana and the test results that were derived from the marijuana taken from the evidence room could not be used at trial because the chain of custody was broken. The real lesson in this case though is how, in some instances, law enforcement officers can display a complete lack of professionalism and fail to follow proper protocol. That is why all documentation needs to be questioned and examined.
Law enforcement’s failure to follow the proper procedures could also influence a juror on the overall credibility and professionalism of the police. Although a defense attorney may not explicitly make this argument, jurors are aware of a police officer’s lapse in professionalism, and they often resent it.
Example: Officer Jones works for a small town without many resources. He is the only officer on duty when he makes a traffic stop and sees a bag of crack cocaine in the car. The cocaine was in the console between the driver and the passenger. He arrests the passenger for possession, seizes the crack and stores it in his desk for a couple of days. He did not prepare an evidence log; he made no notation of the time the crack was placed in the desk. He testifies that his desk was locked and no one had access to the interior of his desk. Officer Jones waits until his chief returns to duty to receive instructions on how to process the evidence, which is ultimately tested at a lab. The lab confirms that the substance is cocaine.
The evidence from the lab is admitted at trial. Although the jurors may not truly doubt the substance that was tested was indeed the same substance that was seized in the car, the jurors are unhappy with Officer Jones’s lack of professionalism. When it is time to vote guilty or not guilty, the jurors may be swayed by the unprofessionalism of the police.
E. Cross-Examination of Lab Technician/Chemists
The defense does not have to accept the lab results without a fight. The Constitution guarantees a defendant the right to confront his or her accusers at trial. The chemist or lab tech who performed the tests that identified the controlled substance must be available for cross-examination by the defense attorney. The lab report by itself is not sufficient.
Questioning Testing Procedures
Cross-examination of the lab tech who performed the tests can be critical. For example, the final lab results may report a sample contained a controlled substance. However, some tests may have been performed on the sample that failed to detect an illegal substance. The defense can cross-examine the lab tech about not only the results of the test but the process that was used to achieve the results. The process may reveal that the substance was tested several times until a positive result was obtained.
Just as you cannot assume policies regarding the chain of custody were followed, you cannot assume proper laboratory procedures were followed to determine if a substance is a controlled substance. Lab technicians who are under pressure to process a large number of samples make honest mistakes. Furthermore, sheer incompetence can never be discounted.
Some lab workers deliberately violate protocols. For example, a chemist for a state crime lab in Massachusetts grouped together samples from different cases that were to be tested. The samples appeared to be similar; so the chemist tested only a few of the samples but certified that all the samples had been tested. She violated other protocols such as forging the initials of evidence officers and removing samples from the evidence locker and postdating entries in the evidence logbook. She also intentionally tainted samples that tested negative for a controlled substance to test positive. Commonwealth v. Scott, 467 Mass. 336, 5 N.E.3d 530 (Mass. 2014).
Questioning Lab Technician’s Credentials
Lab technicians must have proper credentials and degrees. The defense attorney can question a technician about her education and training. The defense may also subpoena records that verify the technician’s credentials or lack of credentials. The judge may decide to suppress the test results if the technician lacked the appropriate education and training or failed to have the correct certification. Even if the results are admitted as evidence, each juror determines the truth of the case against the defendant. Chipping away at the lab technician’s credibility may not keep the evidence out but still may create a negative impression of the prosecution’s case in a juror’s mind. Skepticism created by raising issues concerning the lab technician can carry over to other parts of the prosecution’s case.
Questioning Maintenance of Testing Equipment
The testing equipment must be properly maintained and calibrated. The defense can request maintenance and calibration records for the lab machines and question the lab personnel about when the machines were calibrated and how they know the machines were correctly calibrated. The lab technician may not concede that the equipment was improperly maintained. However, statements that the technician “assumed” that the equipment was properly maintained may again chip away at the prosecution’s credibility and professionalism.
Hiring a Chemist
If your attorney has concerns about the calibration of the machine, the process used, or the credentials of the expert, you can hire a chemist. The chemist may be able to provide valuable testimony about defects in the chemical analysis as well as insight on how to cross-examine the state’s lab tech.
#5. CONSIDER A DIVERSION PROGRAM IF ONE IS AVAILABLE
Some jurisdictions offer diversion programs for defendants charged with possession. On completion of the diversion program, the charges are dropped so you can avoid a criminal record. Typically, you’ll need to participate in drug education and counseling, submit to drug testing, and remain drug-free for the duration of the program, which may last for a year or more. You will also have to pay a fee.
The downside is that you may have to plead guilty to the charges so that, if you fail to complete the program requirements, you will not be entitled to a trial and you will be sentenced. Some jurisdictions don’t require a guilty plea but do require you to waive a jury trial.
Eligibility for diversion programs varies by jurisdiction. In some states, only first-time offenders charged with misdemeanors are eligible, while others permit persons charged with more serious offenses or with prior records to participate.
Some people are reluctant to participate in the diversion program because they believe the police overreached and violated proper procedure or conducted an improper search when they were charged. If this is your situation, keep your goal in mind. Participation in a diversion program will preclude you from challenging improper police conduct in a criminal court. However, if your objective is to avoid a drug charge, participation in a diversion program may be your best bet. Consult with an attorney to find out if you are eligible for such a program and what the best choice is for you.