by Author | 08:39

Drug possession charges may not hold up in court if officers violated search and seizure law and/or there are not enough facts to legally establish all elements of possession.

Simple possession cases account for about 80% of the criminal drug cases in Oklahoma. Many of these prosecutions involve marijuana or prescription painkillers. Unless the defendant had a valid prescription, possession of even one joint or pill could be a serious infraction. The War on Drugs has cooled off somewhat in the 21st century, but sentences remain high for minor drug offenses.

That being said, the climate is changing. There is a movement to legalize marijuana or at least substantially expand medical marijuana laws. In fact, possession of up to 1.5 ounces may be a fine-only misdemeanor. Furthermore, many jurors agree that drug addiction triggers many of these offenses, especially possessing an illegal painkiller. Addiction is not a legal defense to possession, but it may resonate with the jury.

Fortunately, there are a number of legal defenses available. Ponca City criminal defense attorneys can use these defenses to get the charges thrown out of court or at least reduce the sentence.

Search and Seizure Issues

The Fourth Amendment prohibits unreasonable searches and seizures. Generally, these acts are per se unreasonable unless officers had a warrant, or a search warrant exception applied. Since officers generally do not bother to get search warrants in drug possession cases, a narrow search warrant exception must apply. Some common ones include:

  • Consent: Property owners, or apparent owners, may consent to vehicle, dwelling, and other property searches. Apparent owners are people like a roommate whose name is not on the list. Consent must be affirmative. Stepping aside and allowing officers to enter is assent, but not consent. There is a difference.
  • Exigent Circumstances: This exception is also known as the “emergency check” exception. If officers reasonably believe someone may be in danger, they may enter premises without a warrant and seize any contraband they see in plain view. Safety sweeps are just that. They are limited, fast sweeps to make sure everyone is okay.
  • Plain View: If officers are lawfully in a certain place, they may seize any drugs or other contraband they see in plain view. Typically, officers must have at least reasonable suspicion to stop a vehicle. Partial plain view cases, like part of a baggie protruding from under a seat, are in a grey area.
  • Automobile Exception: If officers have probable cause to believe that evidence of a crime is inside a vehicle, they do not need warrants to conduct searches. These searches are limited. Officers cannot lift the hood to look for drugs there.

If the state cannot establish the search warrant exception in court, a Kay County judge may exclude the evidence. At that point, the prosecution collapses like a house of cards. Furthermore, a signed warrant is not a get-out-of-jail-free card. Officers must still have probable cause.

Legal Definition of “Possession”

Proximity is the most obvious element of possession, and the easiest element to establish in court. But possession involves two other elements as well:

  • Knowledge, and
  • Possession.

Assume Felix is in the back seat of a car when Officer Doug pulls over the driver for speeding. Doug asks the driver for consent to search, and the driver says “okay.”

So far, so good. Officer Doug clearly had reasonable suspicion to pull over the car. Furthermore, even though the driver did not say something like “I hereby give my consent, as the owner, for you to search this vehicle,” the driver’s consent will probably hold up in court.

Upon searching the car, Officer Doug finds an illegal bottle of pain pills stuffed between the front seat cushions. Doug arrests everyone in the car, including Felix, for drug possession.

Now there is a problem. It is difficult for back seat passengers to exert control over items in the front seat, especially if there is another person in the seat. Furthermore, if Felix did not know the other people in the car very well, prosecutors may have a hard time establishing knowledge beyond a reasonable doubt.

Contact an Aggressive Attorney

Drug possession charges often do not hold up in court. For a free consultation with an experienced criminal defense attorney in Oklahoma City, contact Boettcher, Devinney, Ingle & Wicker. Home and jail visits are available.

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