The so-called “war on drugs” has been underway now for decades, and continues in one form or another. The recent legislative changes towards marijuana legalization in Colorado and some other states is a indication that society is somewhat changing, but there are strong institutional interests that want to keep the drug regulatory schemes in place.
In this climate, it is critical to have an attorney who is aware how to handle a drug case or drug conspiracy case. Drug cases and drug crimes also present major issues of criminal and civil forfeiture. Forfeiture is the legal process whereby someone convicted of a drug crime can be made to turn over assets (money or property) to the government.
With easy availability of drugs, drug cases are some of the most commonly encountered types of criminal cases. Unfortunately, they can also be some of the most serious, if the offenses involve allegations of conspiracy, trafficking, or distribution. Drug accusations carry the very real potential for extremely long sentences, harsh collateral consequences and civil penalties that may be assessed under property forfeiture provisions. Drug cases in both Kansas and Missouri present many dove-tailing legal issues:
Search and Seizure. In many drug cases, it happens that a person’s constitutional right to be free of unreasonable searches and seizures has been violated. The Fourth Amendment protects us from unreasonable searches and seizures. A key issue at the outset of every drug case is firstly: How was the drug evidence obtained? Successfully probing into this issue can often lead to the reduction or dismissal of drug charges.
Technical Details. In drug cases, the mastery of the details is vital. At Phillips & Thomas LLC, we focus immediately on the who, what, where, when, and why of a drug case. Federal and state law enforcement agencies often don’t like to share resources, and will often only provide the minimum amount of information. Police reports can often be vague, contradictory, or incomplete. In federal cases, it is important to examine dispatch tapes, MDT printouts, and AVL/GPS for all units. Police reports, lab reports, photos, videos, victim impact statements, citations, and affidavits also need to be pored over. There can sometimes be a limited window of opportunity to obtain things from law enforcement, as records can be buried, destroyed, or otherwise degraded. Under the case of of Arizona v. Youngblood, 488 U.S. 51 (1988), a criminal case can be dismissed if law enforcement has destroyed potentially exculpatory evidence. This can and does happen, and bad faith can be shown in a variety of ways.
It is critical to use all of the available evidence to reconstruct what actually happened. Police informant files will contain details (or inferences) on the backgrounds and motivations of CI (confidential informants). The lab reports are often the most overlooked element of defense of drug cases, and knowing the chemistry and procedures of how the tests are done is critical. The identity of the substance is sometimes not as clear-cut as it is made out to be. Some recent cases of ours have called into question the “random sampling” procedures of law enforcement agencies.
Drug cases are divided into different categories: possession, distribution, or trafficking. So-called “inchoate” offenses are those that have not been brought to actual completion, and are classified as “attempts” or “conspiracies” to do the particular act. For example, in a drug conspiracy case (common in federal court), the essence of the conspiracy is the making of the agreement itself.
Kansas, Missouri, and federal conspiracy charges have slightly different elements, but basically the government needs to prove beyond a reasonable doubt that (1) two or more persons came to a mutual understanding to try to accomplish a common unlawful plan; (2) that the person willfully became a member of the conspiracy; (3) that one of the conspirators knowingly committed an overt act in furtherance of the conspiracy; (4) that the overt act was knowingly committed at or about the time alleged in an effort to carry out some object of the conspiracy.
If you have been approached by law enforcement to act as a possible “confidential informant”, then you need legal advice and guidance right away. Any possible “deal” or immunity agreement needs to be done in conjunction with a defense attorney, so that all your rights and privileges are protected.
Successful drug crime defense strategies can often focus on the lack of “links” or connections between the defendant and the substances. In drug possession cases, possession can either be “actual possession” or “constructive possession.” But what about other factors?
- Was the person present in the house when the warrant was executed?
- Was the contraband in “plain view”?
- Was the person able to exert control over the contraband (“constructive possession”)?
- Did the person have any connections to the residence, auto, or structure where the contraband was found?
Forfeiture. Drug cases often carry with them the possibility of civil or criminal forfeiture of money or property that may have allegedly been acquired from unlawful activity. These forfeiture issues can arise as separate civil cases, or can come about within the underlying criminal case itself. It is important to have an experienced defense attorney who can handle these issues.
Treatment Programs. Many of our clients have a serious substance abuse issue that needs immediate attention and intervention. Working in collaboration with treatment programs, we have successfully helped our clients turn their lives around by assessing and referring them early on in their cases. Often, if we can show the prosecutor that we have helped our clients’ address the underlying substance abuse issue that caused them to enter the criminal justice system, we can convince them to dismiss or defer prosecution on their cases. Treating a drug case as a health issue rather than a criminal issue has provided tremendous benefits for our clients.
If you or someone you know has become involved in a drug case, or if you or someone you know has been asked to become an informant for drug-related issues, please call us.
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