Drugs: Search Warrants and Pedestrian/Car Stops

by Jamison Koehler on October 7, 2009

One key to successfully defending drug 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 the Rules of Evidence are so important in litigation. And in criminal proceedings, the prosecution has a significant burden of proof at trial – beyond a reasonable doubt. Defense counsel wants to give the prosecution as little as possible to work with at trial. It will be particularly successful if it can suppress evidence (that is, preclude it from ever being admitted at trial) before the trial even begins.

Physical evidence plays a particularly significant role in drug trials. After all, the core element of a drug charge is whether the defendant either possessed a controlled substance or distributed it. The prosecution will have a difficult time meeting its burden of proof without evidence of the substance in question. Other evidence, such as incriminating statements by the defendant or a co-conspirator of the defendant, can also play an important role.

The first opportunity to challenge the admissibility of the evidence at trial is through a Motion to Suppress or some other motion in limine (that is, a motion that is litigated before trial, outside the presence of either the judge or jury that will hear the case). In a drug case, defense counsel will typically challenge the evidence as being collected as the result of an illegal search warrant or pedestrian/car stop. Defense counsel might also challenge the admissibility of any incriminating statements made by the defendant as either un-Mirandized or as “tainted fruit” of the poisonous tree (as discussed in one of my earlier posts).

Search Warrant

If the evidence in question was collected as the result of a search warrant, defense counsel could use a Motion to Suppress to challenge the validity of that warrant. Was it, for example, approved by a neutral and detached magistrate? Was there probable cause underlying the warrant? That is, 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 particularity the place to be searched and the items that were to be seized?

These are constitutional requirements that apply to all states. If defense counsel is successful in challenging one or more of these requirements, the evidence should be ruled inadmissible at trial. If the prosecution’s case is based entirely on this inadmissible evidence, it will not have a case and the charges should be dismissed.

Pedestrian/Car Stop

The prosecution might also be basing its case on physical evidence or statements that resulted from the detention of a suspect on the street or in a car. If defense counsel can successfully challenge the legality of the initial stop of the person, it can prevent the prosecution from introducing evidence collected as a result of such an illegal “seizure” at trial. Again, if the “suppressed evidence” is critical to the prosecution’s case, the prosecution might have no choice but to either appeal the court’s finding of illegality or dismiss the charges.

Defense counsel will take the same approach here as I discussed in an earlier post on Motions to Suppress in the DUI/DWI context. That is, defense counsel will begin with the legality of the stop itself (was there reasonable suspicion or probable cause to stop the person to begin with?) and 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 for each and every stage of the person’s continued detention. After all, if the person committed a simple traffic violation, unless there was further reason to detain the person, the police officer should have issued a traffic ticket and sent the motorist on his or her way.

Un-Mirandized or coerced statements can also be the subject for a strong Motion to Suppress, but, because these are complicated issues, I will deal with these issues in a separate entry.

3 Comments on “Drugs: Search Warrants and Pedestrian/Car Stops

  1. Can u tell me if my husbands 160 day speedy trail was reached?

  2. Can evidence be amitted in trial that was not on the search warrant and can a defendant be charged with the evidence not indicted for?

  3. Ms. Carroll:

    Yes, evidence can be admitted that is not specified on the search warrant or included as part of the indictment. Unfortunately, I have no idea about the status of your husband’s case. You should ask his lawyer.

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