Defending Drug Charges: The Motion To Suppress Evidence
I do a lot of work defending individuals charged with drug possession and or delivery. How do we go about defending those people? What works and why? This is the first part in a three part series. The 4th Amendment to the Constitution protects each of us from unreasonable search and seizures. One of the key weapons in the Defense Attorney's arsenal the Motion to Suppress Evidence. Too often attorneys neglect this tool often due to a lack of knowledge.
What the Motion does
A motion to suppress evidence is a motion that asks the Judge to determine the legality of the search and seizure of the evidence (drugs). If the Judge finds the evidence (drugs) where discovered in an illegal search then the evidence is "thrown out" or excluded from the trial. Without the drugs being admitted it is impossible to prove possession or delivery. So if we win the suppression hearing, we win. The prosecution may appeal, or they may just dismiss the case but they need to have the drugs admitted into evidence.
Identifying Suppression Issues
The first thing that must be done is that the facts surrounding the discovery of the drugs must be examined in detail. How did police come in contact with our client? If they stopped him did they have a legal reason to do so? Was there a search warrant? How did the police search the location? What was the legal justification for the search? Was there probable cause to issue a search warrant? Most often the search is a warrantless search of an automobile that has been stopped for some type of traffic violation. The second common scenario is a search warrant served on a home that is suspected of being used in drug trafficking.
Next we look at the actual seizure of the drugs. Where were they transported and how were they stored? Can the Police establish the chain of custody (explain everyone that handled the items)? Was there any chance the drugs became contaminated? How were they tested, can the police prove that it is what they say it is? How were they weighed and is it accurate?
In identifying suppression issues the attorney needs an in depth knowledge of both police procedure and currant case law. The case law is how courts have determined in other similar cases how to apply the law to protect your rights. Judges use these decisions by other Judges to base their decisions on.
The Hearing
Many Judges will hold a hearing several weeks before the trial. Some will hold it immediately before the trial. In most cases the initial burden is on the Defense to show that the arrest was done without a search warrant. In most cases the State will stipulate to this fact. Then the burden is on the State to prove there was probable cause for the search. They do this by having the police officers testify.
Getting a chance to cross-examine the police officers before the trial is a huge opportunity for the defense in that it gets the opportunity to lock in the officer's testimony and find their weakness for later use at trial. The focus of the questioning is to show the errors the officers may have made, and how the facts indicate the search was done illegally.
At the end of the hearing the Judge will hear the arguments, from both attorney's and often time review the case law provided by them. He will then make a decision.
The Decision
If the motion to suppress is granted then the evidence is excluded. The State must then decide to appeal or not. An appeal is an uphill battle for the losing side, because the Appeals Courts give the Trial Judge a lot of desecration and far less than 10% of all appeals overturn the original decision. In most cases the State will dismiss the charges for insufficient evidence and the defendant if free.
If the motion to suppress is denied, the Judge will find that the evidence can be submitted to the jury. The defendant still has the right to have a jury decide his guilt or innocence. He may also ask the jury to determine the legality of the search. In addition the defendant now has an issue to appeal the Judge's decision in denying the motion to suppress, and maybe just maybe a higher court will overturn the decision.
The Bottom Line
If the defense wins the motion to suppress it is most often the death of the State's case. If the defense loses than they live to fight another day at trial, and another day on appeal.