The Three Ps Of Drug Possession
Peace officers make almost two million drug arrests every year. 80 percent of these arrests are for simple possession. Field officers often believe that, since these arrests are easy to make, the cases are easy to prove in court. But as outlined below, that belief is seriously misguided. Prosecutors must establish three elements, two of which are unrelated to “drug possession” in the overall sense. Additionally, the state must prove all three elements beyond any reasonable doubt.
Since the burden of proof is so high in criminal cases, lack of evidence is usually the best defense in these matters. If the admissible evidence is shaky, a West Palm Beach criminal defense lawyer can often successfully resolve cases that seem hopeless at first. Drug possession is a good example. Even if a police officer caught the defendant red-handed with an illegal drug, the charges often don’t hold up in court.
Produce the Substance in Court
Most drug possession arrests begin with random traffic stops or responses to disturbance calls, usually noise complaints. Typically, officers aren’t looking for illegal drugs in these situations. They basically stumble upon them.
Since events happen so quickly, police officers very rarely have valid search warrants. So, the drugs or other contraband they seize is only admissible in court if a search warrant exception applies. These exceptions include:
- Plain View: If the officer was legally in a certain place at a certain time, the officer may seize any contraband s/he sees. The aforementioned condition is a very big “if.” Frequently, police officers profile defendants. Officers detain defendants because they don’t “look right.” These stops, regardless of the illegal items found, are patently illegal. The ends never justify the means.
- Consent: Voluntary consent may be the most common search warrant exception. Owners, or apparent owners (e.g. a driver who doesn’t legally own the vehicle) may agree to let police officers search their property. To a limited extent, courts usually allow police officers to bully defendants until they consent. However, at some point, they cross the line.
- Exigent Circumstances: The safety check exception applies if someone reports a gas leak in Bill’s house or if Lisa is passed out behind the wheel of her car. In these cases, officers may enter the structure or vehicle to verify the safety of the occupants. The plain view exception applies during these security sweeps. We stress that the intrusion is limited to a sweep. In the gas leak example, officers cannot look in cupboards or drawers. No one will be in these places.
On a related note, disturbance tipsters are often unreliable nosy neighbors. If the tipster was unreliable, a West Palm Beach criminal defense lawyer can exclude the seized evidence, because it’s fruit from a poisonous tree.
Prove it Was Illegal
This requirement often comes up in several cases. Hemp/marijuana may be the most common one. Hemp and marijuana are physically identical. The state must run an expensive THC test to distinguish the two. Many prosecutors would rather offer favorable deals, like pretrial diversion, than spend money for this test.
Cut substances could be an issue as well. For example, cocaine may be so heavily laced with flour, baking soda, talcum powder, and other such adulterants and diluents that it’s no longer cocaine.
Furthermore, the controlled substances list is not set in stone. Officials often add and delete substances, such as various kinds of synthetic marijuana.
Establish Legal Possession
Note that we’ve gone through two Ps before we got to “possession.” Criminal possession has three elements: close proximity, actual knowledge, and exclusive control.
The proximity element is relatively easy to prove. The latter two could be almost impossible to prove in many cases.
If Jake stuffed heroin into a glovebox and locked it, other passengers in the car do not exclusively control that heroin, unless they have the only key and are sitting in the front passenger seat. Similarly, if Jake hides cocaine under a recliner, Sally probably doesn’t know it’s there, even if she’s sitting on the recliner.
Contact a Diligent Palm Beach County Lawyer
Criminal cases usually involve procedural, substantive, and/or procedural defenses. For a confidential consultation with an experienced criminal defense lawyer in West Palm Beach, contact William Wallshein P.A. Attorney William Wallshein has more than 41 years of experience, including five years as a prosecutor in Palm Beach County.
Source:
drugpolicy.org/drug-war-stats/
