“For over 12 years I have represented many clients accused of possessing or selling drugs of all kinds. Whether you are being accused of illegally possessing, selling or transporting methamphetamine, cocaine, heroin, prescription drugs, hallucinogens such as LSD, or any other type of drug, an experienced criminal defense lawyer will always evaluate each case based upon the individual facts of that case. I treat my clients with empathy and respect, as I know I would want to be treated if I was in a position of needing legal counsel.” Ann
Some of the immediate legal questions that should be analyzed include whether the initial detention of the accused or suspect was lawful. Did the officer have reasonable suspicion to detain the suspect? Was there probable cause to arrest? Was there an unconstitutional delay in a detention? Were there any constitutional violations that could result in the evidence being suppressed?
Constitutional Issues that Can Arise in Drug Cases:
The 4th Amendment in the United States Constitution protects the people from unreasonable searches and seizers of their person and property. The basic rule is that an officer cannot arrest a person or search that person or their property without a warrant, unless an exception to the warrant requirement exists.
For traffic stops in the context of drug cases, officers do not normally need a warrant to search a car if they have probable cause to believe that drugs will be found in the vehicle. Because vehicles are highly movable the Courts have created the “automobile exception” to the warrant requirement. Probable cause will be sufficient for conducting a search if the probable cause is related to the reason for the search.
For example, if Officer Jones pulls over Sara for a broken tail light, but then Officer Jones notices when he approaches Sara’ driver side window that there is a used syringe and an empty baggie with some residue of what appears to be heroin in the center cup holder, Office Jones could then conduct a search of the vehicle to look for drugs.
If occupants of a vehicle are arrested upon probable cause that a crime was committed, an officer may be able to conduct a search incident to a lawful arrest. However, an officer can’t simply arrest a driver or occupant of a vehicle and search the vehicle solely because the occupant(s) were arrested. In Arizona v, Gant the US Supreme Court explained that an officer may only search the vehicle of arrested occupants under a “search incident to arrest” if the officer either has a reasonable belief that weapons are in the vehicle and those weapons are accessible to the arrestees, or if the officer has reasonable cause to believe that contraband related to the crime of arrest is in the vehicle.
For example, since the Gant case, an officer can no longer decide to stop a vehicle, arrest the driver for, let’s say, driving on a suspended license, and then use that arrest as the sole excuse to search the vehicle for drugs, when the officer had no articulable facts to believe that drugs would be found in the car. This would be an unconstitutional search. Any drugs or contraband found in the vehicle would be subject to suppression by a judge after a motion pursuant to Penal Code section 1538.5 is presented by the defense attorney. In other words, one must look at the situation at the time of the vehicle search. Were the occupants arrested and securely placed in another location such that none of those arrested could reasonably have any access to weapons, should any be in the vehicle? If yes, then the officer has no reason to search the vehicle for weapons and cannot due so simply because the search would be incident to the arrest (unless, of course, the officer obtains a reasonable belief that weapons are in the car prior to the search, such as if he sees one in plain sight or an occupant provides a spontaneous statement that weapons are in the vehicle).
Drugs and the Plain View Exception to the Warrant Requirement:
Another exception to the warrant requirement is described in the plain view doctrine. Basically, this means that if a police officer happens to see “in plain view” evidence of a crime such as drugs or contraband, and the officer was lawfully present at the location from where he observed the evidence. For example, if an officer walks by a house, and while on the sidewalk sees a vehicle with the door open and bag of what appears to be cocaine or methamphetamine on the ground by the wheel of the passenger’s door, the officer does not need a warrant to seize the baggie. However, if the officer jumped a fence or had to trespass on the owner’s property in order to see the drugs or incriminating evidence, that would not be a constitutionally valid seizer.
“How Are you Doing?” Police Can Try to Initiate Conversations with Anyone they Want to—Know Your Right to Remain Silence!
In the U.S. Supreme Court case United States v. Mendenhall, 446 U.S. 544(1980), the Court held that when determining whether a person is “seized” the question to ask is whether a reasonable person in the same situation would feel free to leave. This is an objective test, so it is irrelevant whether or not a particular suspect actually felt free to leave.
Unless there is a seizure or search to begin with, the constitution will not even come into play. If an officer has reasonable suspicion of a crime, he may detain the suspect and attempt to gather additional evidence that rises to probable cause. If probable cause is reached, then the officer can effectuate an arrest. But what if there is no reasonable suspicion and the officer just has a hunch or suspicion that a particular individual may be “up to something”?
A police officer, without any reasonable suspicion, may approach any person on the street and ask to engage in a consensual conversation. This is a tactic officers are specifically trained to use when they have no evidence that an individual is committing a crime. The officer will intentionally try to get a person to incriminate himself or herself in order to obtain sufficient evidence to conduct a search and seizure. A consent to search by the suspect or accused oftentimes leads to the discovery of contraband such as drugs, that would never have been discovered had the accused exercised his or her rights to remain silent and refuse to consent to a search.
As the US Supreme Court ruled in Florida v. Bostick, there is no seizure or detention if a reasonable person in the same situation as the defendant would have felt free to leave. The Court is required to consider the totality of the circumstances and determine if, objectively, a reasonable person in the defendant’s shoes would have felt free to terminate the conversation and leave. If so, then the officer did not need reasonable suspicion to initiate the contact. If, however, a reasonable person would have felt unfree to leave, such as in a case where several officers approach a person with their hands on their guns and in a stern voice demand the person stop, then a court would consider such contact a detention In such a case an officer would need at least reasonable suspicion to detain the person.
Contacts with Officers on the Street: Reasonable Suspicion, Consent and Probable Cause.
As discussed in above, when encountering a police officer on the street, the police can conduct a “Terry Stop” if they have at least “articulable facts” that would lead a reasonable person to suspect that individual is engaged in criminal activity. This is the standard for reasonable suspicion. It is enough to conduct a brief investigation but not enough to rise to probable cause to arrest. A mere hunch or suspicion is not sufficient to detain someone. There must be articulable facts that would lead a reasonable person to believe that particular person is engaged in criminal activity.
If the Officer has reasonable suspicion that a person is engaged in unlawful activity that officer can briefly detain that person, conduct a pat-down for weapons and inquire verbally. Of course, the suspect has a right to not answer the officer’s questions and to remain silent. If the officer gets additional evidence of criminal activity during his or her encounter with a suspect, the officer would be allowed to arrest that individual only if the officer had probable cause (a higher standard than reasonable suspicion) that the suspect was engaged in criminal activity. Oftentimes the additional “evidence” is obtained by the suspect’s own words that amount to a confession or incriminating statement. This is why remaining silent is so important!
In drug investigations, officers routinely approach people that they believe are involved in the drug trade but lack any solid evidence. In such cases the officers try to strike up a conversation. It is up to the person approached to know that they have a right NOT to answer the officer’s questions and that if they are not being detained or arrested, then they are free to leave. Politely telling the officer that you exercise your right not to answer any questions and asking if you are free to leave is a sure way to determine if you are detained. Of course, if an officer says you are not free to leave, he better have reasonable suspicion to detain you or else the detention can later be deemed unconstitutional. (Kaupp v. Texas (2003) 538 U.S. 626, 629 (Police contact constitutes a seizure when “the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.”) Even when detained, an officer is not required to provide Miranda warnings, so it is important for the citizenry to know they have a right to remain silent at all times.
Length of Detentions and Constitutionality of Prolonged Detentions in Drug Cases:
In typical traffic stops, which are commonly the reason for the initial detention in many drug cases, an officer usually claims to observe a traffic violation and uses this reason to stop a vehicle. The law only requires a police officer to have reasonable suspicion that a crime is being committed, so even the most minor offense will suffice. A broken tail-light, nonfunctioning license plate light, or tinted windows can be a valid reason for a traffic stop.
Once an officer puts you on notice (usually with lights and a siren) to pull over, you are then detained. The officer can make contact with you and question you about the infraction he believes he saw you commit or question you about anything else he likes. Again, you have a right not to answer any questions. However, you do need to provide the officer with proof of your driver’s license, registration and insurance if asked. If you are asked questions such “have you been drinking? Where are you going?” you do not have to answer. You have a right to remain silent and not incriminate yourself. (However, see DUI tabs for what you should provide and what you do not have to provide when it comes to a DUI investigation.)
You also are not required to consent to any search of your person or vehicle. Refusing to consent to a search cannot be used against you as evidence of wrong-doing or as reasonable suspicion that you committed a crime and are trying to hide your criminal activity. There is no harm in politely refusing to consent to any search if an officer asks to search your vehicle, and a great deal of benefit to not giving consent to any search.
You have a right to remain silent and not incriminate yourself. If the officer writes up a ticket, which fully addresses the reason for the initial detention, then he must allow you to leave. For example, if the officer pulls over a driver for a broken tail light or for speeding, and then decides he is suspicious that the vehicle has illegal drugs hidden inside and the driver does not give consent to the search, the officer can not search the vehicle unless he obtains probable cause to believe drugs are in the vehicle. Remember: a person’s refusal to consent to a search cannot in itself constitute probable cause to believe the suspect has committed a crime.
In a situation described above, where a suspect is pulled over for a traffic violation and an officer suspects there is contraband in the vehicle but lacks any articulable facts to support probable cause for a search of the vehicle, the officer must allow the suspect to be on his or her way within the time it would take a reasonable officer to conclude his investigation on the initial offense. For traffic violations that usually means a suspect cannot be detained for any amount of time longer than it would take the officer to write up the ticket or citation. For example, making the driver wait while the police officer calls in for a dog sniff is not permitted if the delay results in the driver waiting any amount of time longer than the time it would take the officer to write up the citation for the moving violation. An unreasonable delay will usually lead to an unconstitutional search and seizure.
The famous “dog sniff” case of Rodriguez v. United Stated, a 2015 US Supreme Court 6-3 decision addressed the issue of how long police officers can extend the length of an initially lawful traffic stop detention to conduct a “dog sniff” search that is unrelated to the initial reason for the traffic stop.
In the Rodriguez case the Supreme Court reviews basic constitutional law and the Fourth Amendment as it applies to traffic stops. The Court reminds us that traffic stops as well as other detentions that arise during an officer’s initial investigation, "must be temporary and last no longer than is necessary to effectuate the purpose of the stop." Consequently, traffic stops may become unreasonable if they are unnecessarily prolonged. (See Florida v. Royer, 460 U.S. 491, 507 (1983) and United States v. Sharpe, 470 U.S. 675, 682 (1985).)
Justice Ruth Bader Ginsburg wrote for the majority opinion in the Rodriguez case. The Court ruled that "a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures." The Court ruling explained that unless the extra period of detention was "independently supported reasonable suspicion", then any search conducted during a time where no reasonable suspicion existed to continue detaining the suspect amounted to an illegal search. Even a time period as short as 8 minutes was found to be unreasonable since the officer had no independent reasonable suspicion to continue detaining the driver after the initial reason for the detention was resolved. Of course, if an officer stops a vehicle for a traffic violation, and at the same time the officer addresses the citation while a second officer allows a trained canine to sniff the vehicle, such that the dog sniff did not result in any lengthier detention than that which was reasonably necessary to complete the infraction investigation, there would be no constitutional violation.
The best way to avoid such harrowing issues is to drive within the speed limit and make sure all vehicle lights are working properly and the registration sticker is up to date and clearly visible. Clearly, an officer will usually be able to find some traffic violation if he or she follows a driver for a long distance, since it is near impossible to drive a hundred percent perfectly at all times, but ensuring all lights are working properly and the registration and license plate properly displayed will reduce the chances of being pulled over by police.
Defending the Criminally Accused for Drug Offenses:
Analyzing the legality of the search and seizure that led up to the arrest for a controlled substance crime is one of the first issues a criminal defense lawyer should look at.
Controlled substances are legally defined and include such drugs as Drugs as Heroin, Cocaine, Methamphetamine, Valium, oxycontin, etc…. Without a valid prescription, most prescribed medications are illegal to possess, transport, use or sell, and are considered controlled substances.
Under Penal Code Section 1000 “Diversion,” many of those arrested for possessing or using illegal drugs will be eligible to get all their drug charges dismissed if they qualify under the statute and complete the required classes.
Penal Code section 1000 specifically lists the crimes that are eligible for diversion. Some of these include Health and Safety Code Sections 11350, 11357, 11364, or 11365, paragraph (2) of subdivision (b) of Section 11375, Section 11377, or Section 11550 of the Health and Safety Code, or subdivision (b) of Section 23222 of the Vehicle Code.
To be eligible for this pretrial drug diversion, an accused must also have not suffered a conviction within the last five years for a drug offense not listed in PC 1000, must not have been convicted of a felony conviction within the past 5 years, and the current offense must not involve violence.
After completing a relatively short class of narcotic anonymous type counseling, the accused will be able to have the charges fully dismissed after one year.
Even if an accused is not eligible for PC 1000 pretrial diversion, he or she may still be eligible for “Prop-36", which is another jail-alternative treatment program that many drug offenders may qualify for and which, if completed successfully, will also result in a dismissal of the case.
Any person charged or arrested for a drug offense should contact a drug possession defense attorney immediately to determine what is the best course of action.
The District Attorneys in Los Angeles and Pasadena Superior Courts often file the following types of drug charges:
- Sale, Transportation or Trafficking of a Controlled Substance or Narcotic
- Possession of Controlled Substances
- Possession for Sale of Controlled Substances
- Possession over 28 grams or Cultivation of Marijuana
- Under the Influence of a Controlled Substance
- Possession of Paraphernalia
- Possession of Certain Chemicals with the Intent to Manufacture
Despite the current leanings of the Legislature to reduce some of the felony drug crimes to misdemeanor offenses, there is still unwanted stigma and career consequences to being convicted of a drug crime in Los Angeles or Southern California Courts. In addition to facing large fines, possible jail or prison, and the loss of one’s job, the government can even try to seize an accused’s assets if they believe they are somehow connected to illegal drug activity. Consequently, it is always wise to employ a lawyer experienced in fighting against drug charges to represent you in a criminal drug related case.
Pasadena drug crimes defense attorney Ann Gottesman will aggressively and effectively defend you against drug charges filed by the government. Whether you have been arrested or are still being investigated for a drug crime, it is very important to understand what charges you may be facing, the possible consequences and what legal options lay before you.
If you’ve been arrested for a drug crime in Los Angeles County, including Pasadena, Alhambra, Los Angeles, West Covina, Burbank, Pomona, Glendale, Van Nuys or San Fernando, attorney Ann Gottesman has the experience and legal knowledge to successfully fight your case in court. She will meticulously review all discovery and subpoena additional evidence relevant to your defense in court. If needed, a knowledgeable expert will re-evaluate the test results to determine its accuracy. Ann Gottesman will analyze the case to determine if there are any motions that can be filed, like a motion to suppress, motion to reveal an officer’s disciplinary record (“Pitchess” motion), motion to quash warrants, etc…
Pasadena criminal defense lawyer Ann Gottesman is here to help you. Over the past 13 plus years, Ann’s experience and zealous representation has allowed her to achieve the best possible results in her clients’ drug cases.
Call the Law Office of Ann Gottesman for a FREE consultation at (626) 710-4021.