Drugs/Firearms

There are two basic drug offenses in Washington, D.C.:

(1) Simple Possession:  Simple possession is a misdemeanor offense involving the knowing or intentional possession of a drug that is proscribed under the D.C. Controlled Substances Act.

(2) Drug Distribution:  Drug distribution is a felony charge involving the knowing or intentional distribution or possession with intent to distribute an illegal substance.

There are multiple firearms and weapons charges, including unlawful possession of firearm, carrying a pistol without a license, possession of firearm during crime of violence, assault with a dangerous weapon, possession of an unregistered firearm, unlawful possession of ammunition, unlawful discharge of firearm, and possession of dangerous weapons.

Defense Strategies

Motion to Suppress: The key to successfully defending drug and firearm cases is to keep out as much evidence as possible from the prosecution’s case at trial.  Trials are basically a struggle between the two sides as to what evidence comes in and what evidence does not come in.  That’s why rules of evidence are so important.  And in criminal proceedings, the prosecution has a significant burden of proof at trial:  beyond a reasonable doubt.  The defense lawyer wants to give the prosecution as little as possible.  He/she will be particularly effective if he/she can “suppress” evidence (that is, preclude it from ever being admitted at trial).

Depending on the facts of the case, the defense lawyer will often litigate a Motion to Suppress before trial.  Defense counsel will typically challenge the evidence as having been collected as the result of some form of illegal police conduct — usually some violation of the defendant’s constitutional rights.  Ideally, this illegal conduct will happen early in the process.  The defendant’s lawyer will argue that any physical evidence collected or statements made subsequent to the illegal conduct should be suppressed as the “tainted fruit” of the “poisonous tree.”

If the evidence in question was collected as the result of a search warrant, the defense lawyer may challenge the validity of the warrant.  Was it, for example, approved by a neutral and detached magistrate?  Was there probable cause underlying the warrant?  Were there sufficient facts — as opposed to mere allegations or conclusions — stated in the affidavit of probable cause?  Was the warrant executed in a timely fashion after it had been issued?  Did the warrant describe with sufficient particularity the place to be searched and the items to be seized?

If the defendant’s arrest was the result of a pedestrian or car stop, the defendant’s lawyer may challenge the constitutionality of the stop itself as well as any resulting searches or seizures.  The Fourth Amendment to the U.S. Constitution prohibits unreasonable searches and seizures.  Pulling a car over for a traffic violation or stopping a citizen on the street to ask about criminal activity both qualify as a “seizure” for constitutional purposes.

Defense counsel will begin with the stop itself.  Why was the individual stopped? What did the police officer know or see when he/she made the stop?  Was there reasonable suspicion or probable cause to believe that criminal activity might be “afoot”?

The defense lawyer will then challenge each subsequent decision made by the police officer to further detain the individual.  The prosecution must show that there was in fact reasonable suspicion or probable cause to support each and every stage of the person’s continued detention.  After all, if the person committed a simple traffic infraction, unless there was further reason to detain the person, the police officer should have simply issued a traffic and sent the motorist on his or her way.

Defense counsel might also challenge the admissibility of any statements made by the defendant.  Many people assume that if the police did not read the defendant his or her Miranda rights (“you have the right to remain silent,” etc.) during any phase of the police investigation, the whole case will be thrown out.  This is not true.  In fact, any statements the defendant or any co-conspirators make are normally admissible at trial as an exception to the general prohibition on the use of hearsay. Miranda applies only to cases in which the defendant is both in police custody (not free to leave) and under interrogation (being asked specific questions about criminal activity).

Despite the limited scope of the Miranda rights, the defense lawyer will sometimes litigate a motion to suppress any statements the defendant may have made in response to police questioning AFTER being taken into custody but BEFORE being read the Miranda rights.  Depending on the circumstances, counsel may also challenge the voluntariness of the defendant’s waiver of his or her right to remain silent.  How long had the defendant been in custody before being read his or her rights?  Had the defendant made any statements in response to police questioning prior to those rights?  What were the defendant’s conditions?  What were the conditions of his or her confinement? Was the defendant threatened in any way or promised something in exchange for agreeing to waive his or her rights?

If, after the Motion to Suppress, the court finds either that the Miranda rights were never read or that the defendant did not knowingly or voluntarily waive the right to remain silent, the court could preclude the prosecution from introducing any resulting statements at trial.

Judge or Jury Trial: The Sixth Amendment guarantees the right to a jury trial for “all” criminal offenses.  The Supreme Court, however, has interpreted this right to apply only to “serious” criminal offenses.  A serious criminal offense is one carrying a maximum statutory penalty of greater than 6 months of imprisonment.

This means that a defendant facing felony criminal charges in D.C will need to decide between a judge trial and a jury trial.  (A trial in which a judge both presides over the proceedings and makes the finding as to the defendant’s guilt is often referred to as a “bench” trial.)  The decision will depend on a number of factors specific to the case.