When people call us on their drug cases we often hear one of the below 3 scenarios:
- “I was holding the drugs for a friend – they weren’t mine. Can I be convicted?”
- “I was the middleman but I never touched the drugs. Can I be convicted?”
- “A friend put them in my backpack and I had no clue. Can I be convicted?”
In #1 and #2 – yes – you can be convicted because you had either care, custody, management or control over the drugs. In the third – not if we can PROVE you had no clue. This is because Texas law defines the possession of drugs as actual and voluntary care, custody, management or control over the drugs; so you can never touch or even lay eyes on the drugs in question and still be legally in possession of them.
Possession becomes voluntary when you are aware the drugs are in your possession or under your control (such as in your house or purse) for enough time to be able to “terminate the possession” – to get rid of them. If you are found with someone else’s drugs in your backpack or car and you had no clue, you are not in possession. It can be difficult to prove that – but it can be done. If you indicate to police you were “holding” drugs for someone else you are in voluntary possession. For marijuana, possession must consist of a usable quantity – residue does not qualify as possession – although we have had to fight many cases on these grounds. For other controlled substances possession is based on weight including any dilutants or adulterants. For example, for codeine mixed with soda – the crime will be classified based on the weight of the entire liquid.
If you are found to be in possession of a controlled substance – the most common legal defense we use is to challenge the constitutional legality of the search and seizure. If we can prove the police violated your Fourth Amendment search and seizure rights, the Court will suppress – throw out – the evidence – which are the drugs found in your vehicle or on your person – and we win the case. However this is not as easy as it sounds since over the past decades the US Supreme Court and appellate courts have diminished the rights of individuals under the Fourth Amendment in their efforts to support law enforcement over the rights of the citizen. For example, many attorneys will lose on a Motion to Suppress even in the face of perjury by the police. But this does not stop us from trying cases on suppression motions where there is good reason to believe a search was illegal.
For those whose search is preceded by a vehicle stop, which is the most common antecedent to a search, there are certain things which we look out for to determine if a Motion to Suppress may be appropriate. We look at all the facts to gauge whether the officer who made the stop will be able to articulate specific facts, together with rational inferences from those facts, to give him a “reasonable suspicion” that the vehicle was involved in illegal activity. This is a highly subjective process and therefore one on which the legal argumentation skills of the attorney are brought to bear. This is because no single factor in the case scenario will determine “reasonable suspicion”; it is the totality of the circumstances that are examined when evaluating whether the officer had a justifiable reason to stop you. We examine each case based on the totality of those circumstances as known to the officer at the time of the stop and whether that officer will have a legally convincing argument that all those circumstances added up – for him – to “reasonable suspicion.”
Reasonable Suspicion and Vehicle Searches
Factors commonly used by police in deciding whether there is “reasonable suspicion” to stop a vehicle include:
- The area in which the vehicle is seen – is it a high crime or known drug area? [We once fought a case by obtaining crime statistics to show the area in which the stop was made was not a high crime area.]
- The officer’s previous experience with criminal activity [A highly subjective factor and one in which the officer must be able to articulate what specific factors combined to give him “reasonable suspicion” – a “hunch based on my years of experience” is not articulation.]
- Information about recent illegal drug activity in the area
- The appearance of the vehicle [A very subjective factor and one subject to a high degree of racial profiling. We have based many suppression defenses on this.]
- The driver’s and passengers’ behavior, e.g. do they make eye contact with the officer; is unusual motion or activity going on inside the car; do the occupants appear relaxed or stiff and nervous, are the occupants of different races [Again, many of these factors are highly subjective. Many police will use eye contact as one of the factors in their “totality” that combined to give them reasonable suspicion. However, we can cite cases of higher court rulings that the presence or absence of eye contact should not be accorded much weight.]
Houston Criminal Defense Attorney
If you have been charged with drug possession and your car was searched during the stop call Carl Haggard of The Haggard Law Firm at (832) 328-0600 or email for a confidential free consultation. Defense attorney Carl Haggard has over 30 years of experience successfully defending and winning for clients in Houston who have been charged with drug offenses. We can evaluate whether you were legally in possession or not and whether the police really had a legal right to search your car. We will fight to give you the best defense possible.
Criminal defense attorneys stand between the government and injustice. We can protect the innocent for the very reason that we know how to protect the guilty from an unjust prosecution.