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Legal Issues in Drug Possession Cases

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for AdobeStock_116715709 (1).jpegEven though most states have legalized marijuana, at least for medicinal purposes, the number of drug possession arrests has increased sharply since 2017. Texas laws are particularly harsh in this area. Drug possession laws mandate stiff penalties, even if the amount of drugs is very small.

These cases have significant indirect consequences as well. For example, if a non-citizen is convicted of any drug possession offense (other than misdemeanor marijuana possession), the government could initiate deportation proceedings. And, in most cases, deferred disposition counts as a conviction for immigration purposes.

Since so much is at stake, Weatherford criminal defense attorneys must be very aggressive. Fortunately, there are a number of legal defenses available. In many instances, the judge may throw the case out of court in these situations.

Improper Search and Seizure

Drug possession cases usually involve physical evidence, which means the Fourth Amendment usually comes into play. This provision prohibits unreasonable searches and seizures.

Typically, police officers do not have search warrants in these situations. Things happen so quickly that officers do not take the time to contact a judge. Warrantless searches and seizures are per se unreasonable unless a recognized exception applies. Some common exceptions include:

  • Consent: Property owners may give consent to search vehicles or buildings. Only owners, or people with apparent authority, can give effective consent. If a police officer wants to search a vehicle full of people, the officer cannot keep asking passengers until one of them consents.

  • Plain View: This exception often comes up during drug possession traffic stops. If officers see drugs or other illegal substances in plain view, warrantless seizure is legal. Partial plain view cases, such as part of a dime bag protruding from under a seat, are in a grey area.

  • Automobile Searches: If officers have probable cause to believe that there is evidence of a crime in a car or other vehicle, officers do not need search warrants to examine the vehicle.

All these exceptions have a common denominator. The property owner has a lower expectation of privacy in a vehicle or in items that are not concealed. Furthermore, if the owner consents, the owner waives the right to privacy guaranteed by the Constitution.

Procedural defenses, like the lack of a proper warrant, are often very effective in drug possession cases. Once officers make such errors, prosecutors cannot turn back the clock and correct them.

Lack of "Possession"

Drug possession cases make up close to 90 percent of all drug crimes, largely because police officers believe these cases are easy to prove. But in a Parker County court, possession has three basic elements:

  • Proximity,

  • Knowledge, and

  • Control.

Proximity is generally easy to establish. But the other two are more difficult to prove, especially beyond a reasonable doubt.

Assume John is a back seat passenger in a car that officers pull over for speeding. The car's driver consents to a search, and officers find crack in the glovebox. If they file charges against John, prosecutors should be able to establish the proximity element. But knowledge and control are more difficult to prove, especially if John did not know the other people very well (knowledge) and the glovebox was locked (control).

Drug possession charges often do not hold up in court. For a free consultation with an experienced criminal defense attorney in Weatherford, contact Herreth Law. Convenient payment plans are available.

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