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Top Ten Mistakes Detrimental to a Favorable Outcome in a Drug Related Case • Priale & Racine PLLC

Top Ten Mistakes Detrimental to a Favorable Outcome in a Drug Related Case

Number One – consenting to a search; if law enforcement has the right to search they will simply just do it.

  • If an officer asks to search you, your car, your home, your purse, etc. what do you do?
    • Politely make it clear you are NOT consenting. (example: Officer I understand that you are going to do what you are going to do but I am not consenting to you searching my person, car, house, bag, etc.).
  • Often an officer will tell you that they are going to search you, your car, home, bag, etc.  When phrased this way most people do not feel that they are being asked for permission, they often feel that they do not have a choice.  What do you do?
    • Politely make it clear that you are NOT consenting. (example: Officer I understand that you are going to do what you are going to do but I am not consenting to you searching my person, car, house, bag, etc.).
  • Simply put – stay calm, keep your hands in plain view at all times, do not make any sudden movements, politely tell the officer you understand that they are in control of the situation and are going to do what they want, but that you are not and will not consent to them searching your pockets, searching your car, going through your bag, coming in to and/or searching your house. This is your constitutionally protected right and it is your job to make sure that you do not waive that right by consenting to a search.

 

Number Two -admitting the drugs are yours.

  • A good rule of thumb is NEVER make any statements to law enforcement officers without a lawyer present. In drug cases this is extremely important.  Defendant’s statements are often the strongest and only evidence officers have to prove the element of ‘possession’.  
  • Accordingly, do NOT:
    • Inform the officer you only have a joint on you – this will not help you, they now have probable cause to search you and your car, and by making this statement you have given them the evidence they need (your statement) to prove an entire element of the offense (possession).  
    • When an officer asks you if you have anything illegal on you or in your car, do NOT tell them thinking it will help you.  It will NOT help you.  It will only help them charge and convict you.
    • Do NOT tell the officer the drugs in the car are yours because the other two people in the car are your friends and you want to be noble and protect them.  To convict you they must prove that you knew of the presence of the drugs and that they were in fact drugs.  If there are three people in a car and a small amount of marijuana is found they must link it to an individual to convict them of possessing it.  The officer will threaten to charge you all and tell you that you will all be convicted and go to jail.  This is simply not true.  To convict you all they would have to prove either a conspiracy to possess the drugs and/or that you all individually possessing them.  If no one makes any statements they can not prove either. They know this and will detain you, separate you from your friends, and try to scare you into giving them what they need – your statement.  Do NOT give it to them.  

 

Number Three – individually packaged amounts.

  • This is the quickest was to elevate your simple possession charge to a possession with the intent to distribute charge. Possession of multiple small bags of individually packaged amounts is considered strong evidence that the person found in possession of them intended to sell them.  
  • This is a quick way to rapidly escalate the seriousness of a drug charge – often resulting in changing a misdemeanor to a felony, removing the option of a first offender program, and resulting in an increase in the jail time an individual is looking at if they are convicted.  

 

Number Four – carrying a scale on your person/ with you.

  • Like number three directly above, being found in possession of a scale while also in possession of drugs is considered strong evidence of an intent to sell and will most likely result in a charge of possession with intent to distribute instead of a simple possession charge.  
  • This is a quick way to rapidly escalate the seriousness of a drug charge – often resulting in changing a misdemeanor to a felony, removing the option of a first offender program, and resulting in an increase in the jail time an individual is looking at if they are convicted.  

 

Number Five – admitting you were going to sell the drugs.

  • While this sounds like it would be obvious you would be shocked how many people make this mistake.  Police officers are trained in ways to make you feel like you have no choice but to talk to them, like they really will help you if you are just honest with them, that it’s not you they want so if you just talk to them now they will let you go – these are all lies.  
  • Officers will often tell you that if you cooperate with them that is the only way for them to help you, and in a drug case what they want to hear is that you intended to sell the drugs they found in your possession so they can elevate your charge to possession with intent to distribute and use that elevated charge to try to leverage you into cooperating with them to get it reduced.  
  • Do NOT voluntarily make a statement that will make a bad situation worse.  Again, do NOT make any statements to law enforcement officers without an attorney present.  If after speaking to a lawyer there is some benefit that could be gained by making such a statement then your attorney will advise you of it and be with you when you do it.  

 

Number Six – traffic violations- most common way drug cases start.

  • The most common beginning to any drug offense is when the individual is pulled over by a law enforcement officer for a traffic violation.  Some of the most common traffic infractions that later lead to drug arrests are:
    • Speeding
    • Failure to use a turn signal when changing lanes
    • Third brake light is out
    • Broken tail light
    • Right turn at a no turn on red
    • Expired inspection / registration
    • Illegal window tint
    • Obstructed view – aka dangling object.
      • This is surprisingly the most common.  In Virginia it is illegal to have anything hanging around your rear view mirror – including air fresheners!!! If you have an air freshener hanging on your rear view mirror, a parking pass for your apartment complex, or a GPS suction cupped to your windshield, this is probable cause to stop your vehicle.

 

Number seven – smoking marijuana in your car or in the same clothes you left the house in. 

  • The distinct odor of marijuana is considered probable cause for a police officer to search your person, your car, a bag, your house or hotel room, etc. Accordingly, if an officer smells marijuana coming from your person or car this is a virtual get around the 4th Amendment free card giving them an automatic legal right to search you and/or your car.  
  • Anyone who has ever smelled marijuana knows that the odor, particularly of burnt marijuana, is extremely distinct.  It is also very easily detectable to people who do not regularly smoke marijuana, but much harder for the smokers themselves to detect.  Accordingly, while you may spray some air freshener in your car or Febreze on your clothes that does NOT mean that you do not smell like marijuana.  
  • Do NOT give away your 4th Amendment rights by smelling like marijuana when you leave the house or by smoking in public.  
    • Note this includes legally smoking in DC or MD and then driving to VA smelling like marijuana.  While you may have lawfully smoked marijuana in DC accordingly to the laws and regulations of DC, it is still illegal to even possess in VA.  Accordingly, despite your lawful use of the drug the fact that you or your car now smells like marijuana in Virginia is still probable cause to search your person and/or car.

 

Number Eight – carrying prescription drugs out of the prescription container.

  • Any drug that you have to get a prescription for to obtain means that is it illegal to possess without having first obtained that prescription.  Accordingly, if an officer for some reason finds you in possession of a prescription drug and it is not contained in the prescription bottle you obtained it in this is probable cause to arrest you for illegally possessing it.  You may very well have a legitimate prescription for the drug and bring that prescription into court and get the charge dismissed, but by carrying these drugs in the manner you have given the police the right to search you and your possessions and anything else they may have found can still be used against you in court.  

 

Number Nine – admitting to having drugs on you when asked – again if they had the right to search you they would. 

  • See number one and two above, the same principles apply.  Do NOT make any statements to law enforcement.  They are not trying to help you. You will not help yourself by being honest and confessing that you just have one joint on you, you will not help yourself by talking.  Again, remain calm, be polite, but do not admit to anything and do not agree to you or anything you own being searched.  Keep your hands in plain view, and calmly politely and respectfully inform the officer that you understand that they are going to do what they are going to do but that you do not consent to being searched, that you have nothing to say and that you will not answer any questions without a lawyer present.  This is your refrain.  This is how you politely and respectfully respond to any and all questions.  
    • (note – you do provide them with your name and identifying information including driver’s license, insurance and registration card if the encounter began as a traffic stop.  The above refers to all other questions.)

 

Number Ten – storing drugs in a bag/container that is identifiable as yours or has items identifiable as yours in it.

  • There are two different ways that possession of an item can be proven.  One is normal possession, such as holding something in your hand or on your person.  You are clearly possessing those items.  
  • The second form of possession is called constructive possession. This is the most common kind of possession litigated in court. An example of this is if you had a bag of marijuana in a backpack in your trunk.  
    • To prove possession on that situation they would have to prove that you knew of the presence of the bag of marijuana, that you knew that it was marijuana, and that you exerted dominion and control over the marijuana through your dominion and control of the vehicle.  The most common way they link a specific individual to a substance, in this case the bag of marijuana in the backpack is by showing who the backpack belonged to.  For example, if your backpack has your wallet in it with your ID, as well as your cell phone, work badge, and pictures of you and various other people then they will use those things to prove the bag and the items in it – including the marijuana – is yours.  
    • In contrast, let’s say that you are in a car with three friends, you all have bags in the back in with personal items in them, and there is a 4th bag with no personal items in it at all that is not identifiable as belonging to any one of you specifically.  You are all separated and questioned.  You all say that you have nothing to say and will not speak to them without a lawyer. Without something more neither the bag nor the marijuana inside the bag can be linked to any one of you and as long as no one makes any statements they will not be successful against you on court without something more.  
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