Defending yourself in the War on Drugs

If you are under investigation for an alleged drug offense or have already been arrested, there are several defenses available to you. Most of these involve "Motions to Suppress" evidence seized illegally by the police.

If a judge grants a defense motion to suppress, all evidence seized as a result of the illegal search is tossed out. Without this evidence, the case is almost always dismissed!!

Some effective defenses available include:

1.An illegal stop, detention, and subsequent search---if police illegally stop you in a vehicle or on the street and find drugs either on your person or in the vehicle, they must have a Constitution basis for both the stop and the subsequent search. If the detention or stop is illegal, anything found during a search afterwards is tainted and must be suppressed. I have had many, many cases thrown out of court because police violated my client's Constitution Rights under the Fourth Amendment or Article 1, Section 7 of our Washington State Constitution by engaging in unlawful seizures and searches.

Depending on the facts of your case, there are numerous ways to challenge an illegal detention, seizure, or search, which include violating the scope of a permissible search; searches conducted without a warrant or consent; illegal impound searches; violation of the plain view or open view doctrines; or a lack of exigent circumstances.

2. An Invalid Search Warrant---Many drug cases are dismissed because of defects in a Search Warrant, usually involving a residence or business. If the warrant has specific defects, the Court will rule the search Unconstitutional and suppress any drugs or drug related materials. Again, this almost always results in dismissal of the case.

A Search Warrant may be invalid for a variety of reasons including:

a. A lack of Probable Cause

b. Information supporting the warrant affidavit is false, incomplete, or misleading

c. The warrant was obtained primarily based on information provided by an unreliable, anonymous informant

d. During the search, police exceeded the scope of the search permitted by the warrant;

f. The warrant was "stale" (warrants must be executed within a few days after issuance; if not executed within this time limit, the warrant becomes stale and is invalid)

3. Lack of Possession--charges involving possession of a controlled substance require proof of possession. Possession may be actual or constructive. The most obvious form of actual possession is when the drugs are found in a person's pocket. Constructive possession may be alleged if the drugs are found in your home, as you are presumed to be in constructive possession of whatever is in your own home under the theory of dominion and control.

Oddly, in Washington State you do not need to know that you possess drugs to be charged with possessing them. Go figure!

The Prosecution must prove that a person possessed drugs in order to gain a conviction.

Just being near some controlled substances--mere proximity--is not enough.

Example: You are in a minvan with several other college students. There is an accident, and police find a baggie of cocaine under the passenger seat where you were sitting. You are clearly not in actual possession, and the mere fact that the baggie was found under the seat does not mean the drugs were yours under a theory of constructive possession.

Note: The driver or owner of a motor vehicle or legal resident of a home is presumed to be in constructive possession of anything found within it. This presumption is not ironclad, however, as one can claim that a guest or passenger actually possessed the controlled substances and that you were unaware that they were present.

4. Unwitting Possession. This defense is available to a person who was technically in possession of a controlled substance, but was unaware of it. This frequently occurs in cases involving traffic stops; a passenger may slip some drugs into another passenger's clothing, purse, or hide them under the driver's seat to avoid being caught with them. Although there is technically possession, it is a defense to claim that the possession was "unwitting", that is, you did not know you possessed the contraband.

5. Transitory or "Fleeting" Possession. To prove a person possessed an illegal drug, the Prosecution must show more than a mere temporary or "Fleeting" possession of the substance. One of the hallmark cases supporting this defense involves a guest at a home where the owner pulls a plate full of cocaine out of a cupboard and shows it to the defendant while it sits on a table. The defendant touched the dish for a moment, basically said, "wow, lotta coke", and watched the owner place the dish back in the cupboard.

Even though the defendant's fingerprints were on the plate, testimony of other people at the house indicated that he had only transitory or fleeting possession of the dish and therefore did not exert the dominion and control over the drugs needed to show possession. He was found not guilty.

6. The possession of the drugs was legal. This frequently occurs with pharmaceutical drugs like oxycontin, vicodin, or oxycodone. In a recent case, my client was arrested while returning from a funeral for driving under the influence of alcohol (DUI). During a search, police found some pills on the floorboards which turned out to be morphine. My client was charged with felony possession of narcotics. You should have seen the Prosecutor's face when I produced a letter from my client's doctor plus his pharmacy records indicating that it was a valid prescription he'd been taking for over a year.Case dismissed!!.

WARNING: If you have a valid prescription for any form of pain killer, narcotic drug, depressant, sedative, etc., always carry them in the original prescription bottle with your name and the pharmacy label on it! Even if those pills found in an unmarked bottle in your purse or pocket are legitimate prescription medications, you will not likely convince the cop of that as you are being arrested and taken to jail!

7. Medicinal Use of Marijuana.Washington State now permits the medicinal use of marijuana for a variety of medical conditions described in newly enacted state statutes. A valid medicinal use prescription from a licensed physician is necessary. For more information, click on the marijuana leaf logo above.

8. Drug Court. While this is not a defense, it is a means of avoiding punishment and obtaining treatment for persons who possess small amounts of controlled substances or who have committed other types of non-violent crimes to feed their drug habits. For an outline of King County's Drug Court criteria, go to (http://www.metrokc.gov/kcscc/drugcourt/)

Space does not permit us to list all of the possible defenses to alleged drug offense here. The important thing to remember is don't become a victim or prisoner in the War on Drugs! You need a strong legal defense, and that's exactly what you'll get at Robert McKay & Associates. Call now for an immediate free consultation, (877)242-4808.