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Pretrial Motions in Drug Cases

Despite the slow erosion of individual rights in the courts, the way open to attacking drug cases revolve around pretrial motions. I only pick a few for argument’s sake but any defense attorney worth his briefcase will have many, many more avenues of attack. But I will comment here on a so-called “typical” case. Let’s say we have a vehicle stop, search, two occupants and a discovery of 200 pounds of marijuana in the trunk. In some jurisdictions this is a huge amount, in Arizona, not so much. I did a case in Illinois once involving 3000 pounds of marijuana and the judge said “Mr. Higgins, I imagine being from Arizona means that this case is not much of a big deal”. I responded, knowing he was setting me up, “No judge, I would think this is a substantial amount of marijuana about anywhere”. He then asked what was the largest seizure I had dealt with and I replied “In a conspiracy or all in one place”? He said “All in one place”. I told him “In 1989 I did a case where the stash house had 36 tons of weed”. End of discussion.

So, we are now dealing with a straight drug possession for sale case. This is based on, in every jurisdiction, no one is going to argue that 200 pounds is for personal use. I assume in our hypothetical case that the cops separated the driver and passenger to interview them individually. They go to one and say “The passenger, Mr. B, just dumped all over you and said he didn’t even know it was in the car”. They then go to Mr. B and say “The driver, Mr. A just dumped all over you and said he didn’t even know it was in the car”. They are both lies and the cops blatantly lied. Can cops lie? Of course they can and the courts, from the United States Supreme Court down, have repeatedly upheld lying by the cops reasoning that you have a right to remain silent and if you wanted to, you could have not said anything.

When charged with a drug crime, the prosecution always brings any other charges that may be remotely related to the actual crime. These are often what is referred to as “lesser included’s”. In our example, you will get charged with Transportation of Marijuana for Sale, Possession of Marijuana for Sale, Possession of Marijuana and probably a conspiracy count thrown in as well. Even if convicted of all of them, you can only be sentenced on the most severe because to commit the most severe you also have to commit the other crimes. In other words, you cannot be sentenced to Possession for Sale and have the lesser included of Possession sentence on top of that. The test is “does the lesser crime have the same elements as the greater crime minus one element”?

Back to how we defend such a case. The analysis begins with why you were pulled over in the first place. A cop cannot stop you for no reason but the reason does not have to be much. A burned out license plate bulb, going too slow, going too fast, you get the idea. It is not only the reason for the stop but the length of time of the stop which is important. Our office handled a ten pound cocaine case wherein the coke was at the feet of the passenger, our client, at the time of the stop. The case originated in 2015. However, during the pendency of the case, the United States Supreme Court decided Rodriquez v. US. In that case, the stop was for a valid reason and the cop had decided to write a warning ticket. After the warning, the cop asked the driver if he could run his dog around the car. The driver, Mr. Rodriquez, said “no”. The cop called for backup and the additional cop arrived 5 to 7 minutes later. The dog alerted and Mr. Rodriquez was arrested. The US Supreme Court said that it is not the stop itself but the prolonging of the stop to wait for the backup. At that point, the cop had no indication that any illegal activity was occurring. In our case with the 10 pounds, the cop with the dog took 25 minutes to arrive. The judge suppressed the evidence as violating Rodriquez even though Rodriquez had been decided after the beginning of our case. Cases still in progress must conform to Supreme Court decisions.

So, as you can see, every step of the procedure beginning with the stop, search (which includes other matters such as valid consent, scope of the search, etc), arrest, statements, if any, probable cause determination, which can be by way of preliminary hearing or grand jury indictment, and numerous other issues have to be addressed.

As stated above, there are criminal motions that affect every aspect of the case including the grand jury presentation, the stop of the vehicle or individual, the arrest, any confession or admission, etc. Every good attorney knows that filing a motion addressing some aspect of the case is important to a successful conclusion, or, at a minimum, showing the prosecution that the case may be in trouble should the matter end up being appealed. Generally, when a plea agreement is reached, no appeal is possible since it is specifically waived in the plea agreement. Many people put their hopes on post-conviction relief after a plea and sentencing but that is the subject of another article.

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