Managing Attorney
In the Houston area, hundreds of people are arrested for possession of drugs every month. A large percentage of arrests are made after a traffic stop leads to the discovery of drugs in a vehicle or on one of the occupants. But what is the best strategy to fight drug charges relating to a traffic stop? What happens if the police violate your rights during a traffic stop?
The below information is provided for educational purposes only. The law of searches is very complex and there are many nuances and exceptions to all of the information provided below. You should always consult with an experienced drug possession attorney to understand your rights and available defenses.
Challenging the Traffic Stop or Detention
The most common way to challenge a drug possession charge after a traffic stop is by challenging the stop or the detention. If a judge (or in some cases, a jury) agrees that a traffic stop or detention was illegal, then the evidence the police gained as a result of their illegal action will be suppressed, which means that it cannot be considered in court. Of course, if the evidence that is suppressed is the drugs themselves, then that could lead to the dismissal of a drug possession charge. Below are the most common ways to challenge a traffic stop or detention in a drug case:
- Stop was made without reasonable suspicion: Police typically need reasonable suspicion that an offense (including a traffic violation) has been committed in order to make a traffic stop. Reasonable suspicion is a lower level of proof than is required to arrest a person or conduct a search, although it must be more than a mere hunch. Reasonable suspicion be based on “specific, articulable facts” that an offense has occurred or is occurring (not just a blanket conclusion that something “suspicious” was happening). If a drug possession attorney proves that a traffic stop was made without reasonable suspicion then that could lead to drugs found during the traffic stop thrown out of court.
- Stop was impermissibly prolonged: Even if police are permitted to stop a vehicle, they may not exceed the time needed to handle the matter for which the stop was made. For example, if the stop was made for expired registration, then the police cannot extend the stop beyond the time it would typically take to investigate the offense of expired registration and write a citation (for example, by calling for a drug dog). Of course, the time it takes to investigate a matter will vary depending on the facts and there are no firm time limits that apply in all cases. Additionally, it could be that police officers gain facts after the initial traffic stop to justify a longer detention.
Challenging the Search
To be valid, a search of a vehicle must be made with consent, based on probable cause that the vehicle contains evidence of a crime (for example, when the police smell marijuana), or justified under another exception to the warrant or consent requirement, such as when the police perform an “inventory search” of a vehicle after an arrest of the driver.
- Illegal search: If the police conduct a search of the vehicle without any of the justifications above, then the search is illegal and the evidence should be suppressed. Although occupants of a vehicle are generally considered to have a lower “expectation of privacy” in a vehicle than in a home or most other places, the police still cannot search a vehicle without legal authorization.
- Search exceeded scope of permission: Even if a person decides to grant permission to search, they may later limit the scope of the search or even revoke permission to search. In a recent case, a driver granted the police permission to retrieve his wallet from a vehicle. After finding the wallet, the police officer continued a search of the vehicle and found cocaine. This search exceeded the scope of the permission to search granted by the driver and, as a result, constituted an illegal search of the vehicle.
- Search exceeded scope of exception: There are exceptions that allow the police to conduct a search or seize an item with a lower level of proof. For example, under the “plain touch doctrine” if the police perform a pat-down for police safety (which they can do with a “reasonable” fear for their safety) and they feel something on a person that is immediately apparent as contraband, then they can seize it. However, if they have to squeeze or manipulate the object, then they have exceeded the scope of the exception and the evidence is subject to suppression. This exception is frequently abused by police but with the availability of body cameras, an effective drug defense attorney may be able to prove that the search exceeded the scope of the plain touch doctrine and that any drugs found should be suppressed.
Challenging The “affirmative link” or Possession Element
To prove that a defendant is guilty of possession of a controlled substance, prosecutors must prove that the person charged had “control, management or care” over the substance and knew the matter possessed was illegal. If cocaine or any drug is found in a vehicle and not on a person, the state may have to prove that the person arrested had knowledge of and control over the drugs by showing additional independent facts and circumstances linking him to the drugs. These factors can include things like the defendant’s presence, whether the drugs were in plain view, whether the defendant was under the influence of drugs, whether he attempted to flee or acted like a guilty person, and whether he had large amounts of cash. Depending on the facts of a case, an experienced drug defense attorney may be able to challenge the existence of an “affirmative link.”
Attorney Jose Ceja is a former drug prosecutor who handled hundreds of drug possession cases as both a prosecutor and defense attorney and regularly defends clients charged with drug possession, including possession of cocaine, possession of ecstasy, possession of marijuana or THC, and possession of methamphetamine, possession of LSD and magic mushrooms. If you have been arrested for any drug offense in Houston, call Ceja Law Firm today for a free consultation.
