Interviewer: So, how would you attack a paraphernalia and possession case? (you probably get a lot of these cases) What can you say in general to defend the case?
Mike: The first thing my office or I’m going to do in defending a possession of drugs case is look at how the officer made contact with the client or the defendant because in America citizens have rights to be free from search and seizure from police officers. So the first thing we’re going to look at is how the contact with law enforcement was made. Was it made consensually? Was it done through a traffic stop? After that, you know, did the officer have reasonable suspicion of the person was committing a crime and from there to actually make the arrest, did the officer have what’s called probable cause to actually make an arrest?
We’re going to always investigate those because if the officer does not have reasonable suspicion and we can prove that, then all the evidence gained after that illegal stop is going to get thrown out and that’s the same thing if he lacked probable cause for an arrest.
We’re also going to look at how the search was done. If a warrant with search is done, in America, then the officer has to have a legal exception to a warrantless search. Searches are not supposed to be done without warrants, but there are exceptions to that. For example, one exception is plain view. And officer sees illegal drugs in plain view, he does not need a warrant before he searches as he can see the drugs right there. Another exception is exigency, if an officer can prove that exigent nature, meaning there’s a chance that the evidence is going to get destroyed if he doesn’t go in there quickly. But all these have a lot of rules and laws that go along with these concepts that a good defense lawyer is going to do everything he can to show that the arrest or the search was done unlawfully to try to get that evidence thrown out.
Interviewer: So the search part of the whole arrest and all that is part of the battleground for the defense attorney or the prosecution, you know, was it valid . . .
Mike: On drug cases, yes.
Mike: If an officer finds drugs in the home or in the vehicle, there are laws that apply to that and if he does not abide by the law specifically in terms of search and seizure, that’s where a good experienced defense lawyer is going to use those laws to protect his client for an unlawful search and seizure and a violation of his Constitutional rights.
Interviewer: So, of the drug possession cases, are they usually traffic stops or are they people walking around, I mean, where do they come into these.
Mike: Drug possession cases comes in all forms. They can come from a traffic stop, starting from a DUI, the pat down and they find drugs in the pocket. They can come from a questioning at someone’s home or search of a home. They can come from mere contact on the street. There are many ways a drug possession can wind up and they all come in different forms and it takes real knowledge of search and seizure laws to defend somebody correctly.
Interviewer: Are there any common or easily understood things that you can advise people out that to make sure that an office searched legally? Is there anything that people can do when their confronted?
Mike: Yes. If an officer contacts you and it’s clear that you’re the subject of an investigation, my first piece of advice is don’t answer any questions. Tell the officer you’re not answering any questions until you can talk to a lawyer. The second piece of advice is if an officer asks to search your vehicle, your person, your home, your backpack or any container you have always deny that. Tell them no, you do not give them permission to search without a warrant. These are the things that can protect you. Even if an officer gets a warrant to try to search these items in the future, that warrant can still be challenged for the Constitutionality of it and validity of the warrant. So I advise all people to always exercise their rights to remain silent and their right to refuse a search.
Interviewer: So if an officer says to you, “I’m going to search you now,” and you’d say, you know, “I do not wish to be searched unless you have a warrant,” and they still do it, you’re in a better position than if you said nothing or if you said, “Okay.”
Mike: Exactly because the greatest exception to a warrantless search is consent. When somebody consents to an officer to do a search they’re giving up their Constitutional rights so they really should never do that. You should always refuse to answer questions and always refuse searches without a warrant.
Mike: It’s the best way to protect your rights.
Interviewer: Okay. This is really good stuff, by the way. Very informative for people who are under investigation for illegal drugs or have been arrested.