A Traffic Stop by the Police can lead to all kinds of troubles. Most DUI cases begin with a Traffic Stop. So do a lot of Drug Possession cases, as well. This article will focus on those Traffic Stops where drugs are found, and result in a Possession charge. Within my Practice, most of the Possession charges I see involve things like Marijuana or prescription medications like Vicodin or Xanax, and usually begin by being pulled over.
In the preceding article, I pointed out that about 90% of my caseload (consisting of things like DUI or related matters, such as Drug Possession cases and Driver’s License Restoration Appeals) begin with a Traffic Stop. In that regard, almost all of my day-to-day work can trace its origin the operation of a motor vehicle, and contact with the Police as a result.
In the real world, far more Criminal cases than one would ever think begin with a Traffic Stop. Just by running a person’s License, the Police frequently discover that an unpaid Ticket has led to a Suspended License, or that a person has an outstanding Warrant for some matter or other, and the Driver suddenly finds him or herself in the back of the Police car, while their car gets searched. That’s when things often take a turn for the worse.
There are about a million ways this can happen. A person may get stopped for weaving, and as part of a DUI Arrest, marijuana or some other drug is found. The Police can arrive on an accident scene and somehow turn up a few prescription pills from somewhere. However it happens, it happens, and a person winds up facing a Possession charge, or a Paraphernalia charge that all began with a drive or a ride in a vehicle.
Frequently, after the Police search a person, or their car, and then Arrest them for Possession of something like analogues, marijuana or any other controlled substance I am asked, “can they do that?” I have to chuckle at that question, because the answer has already been given: Of course they can do that – they already did it!
The real question, of course, is whether the search is legal. And this is always a critical inquiry in any Traffic Stop case that leads to a possession charge. Before even considering that question, however, the whole reason for the Traffic Stop, or the initial Police contact itself, needs to be questioned. If there is any legal basis to have the Stop ruled improper or unlawful, then any and everything that takes place thereafter will never see the light of day in a Court of Law, including anything that the Police find. The Police need a reason to pull someone over, and while there a million reasons that they can “give,” sometimes, the very circumstances themselves tend to contradict the reason “given” for the Stop.
In assessing the legality of the Stop, it is important to find out if there is any Police in-car video. The Police can say anything they want about why they pulled someone over, but, as the old saying goes, a picture is worth a thousand words. Dash-cam video can give clarity to unresolved questions between competing versions of the same story. It can be a wonderful tool to challenge a Traffic Stop, or what takes place during the Stop, especially when the Police are more obviously acting more on a “hunch” than anything else.
In many situations, however, such as when there is an accident, there is no basis to challenge the legality or reason(s) for the initial Police contact. When the Stop or reason(s) for the initial Police contact do not present any likely basis for a successful challenge, then the focus must shift to the subsequent search of the person, or the vehicle they were it. As anyone facing a Possession charge can attest, the Police, once on scene, take charge of the situation and proceed with an air of authority. They hardly stop and ask for permission to search, or, if they do, they sure make it seem like things will be a lot worse if the person doesn’t let them, or otherwise doesn’t admit to having anything on them, should it turn up later.
That’s really a lot of hot air, because unless the Police promise to take whatever they find and throw it in the garbage, and then really keep that promise, once they discover marijuana, or Vicodin, or some Xanax, or anything else, it doesn’t matter if the person handed it over to them or they found it after an exhaustive search; the person still gets charged with Possession. That’s not to say that they wouldn’t find whatever a person has, it’s just that, there’s no real benefit to just handing something over. No doubt, someone is reading this very article, facing a Possession charge of some sort, after having thought they’d get a break by being “cooperative” and handing over a bag of weed, or something like that.
Once a person is Arrested for Possession, they are taken to Jail, and usually released after posting a Bond. At some point, they begin looking for answers, and that’s reasonably like what has brought the reader to this point. This is often the point where I am hired. Now, the reality of a Criminal charge hits home. There are things to be done…
The first step in any Criminal case is an Arraignment. This is the Court proceeding where a person faces a Judge or Magistrate and is told exactly what they are being charged with, what can happen to them, and asked how they Plead. In most Misdemeanor cases, the Arraignment can be waived, meaning I will file certain papers with the Court so that the person does not have to actually go to Court for this proceeding, and instead of having to show up in Court and Plead “Not Guilty,” a “Not Guilty” Plea will be entered for them automatically. They then wait for a Notice to Appear with me at the first “real” Court Hearing, called a “Pre-Trial.”
At the Pre-Trial, I meet with the Prosecutor and discuss the case. Prior to that discussion, I will have reviewed the Police Report to see how the Arresting Officer recalls things. I will, of course, want to know if there is any Police in-car video, and, if so, what it shows. I need to learn what reasons, if any, might exist for me to challenge in terms of the Stop or the search, or anything else that is relevant to “beating” the case.
Often, those reasons show up where you’d least expect them. The key to challenging anything is finding a reason to challenge it, and you will never find any such reason unless you look for it, and look hard.
For all of that, there are plenty of cases where the evidence is good enough to stick. Just because a case cannot be “knocked out” doesn’t mean that things can’t be done to make it go away.
Keeping a Possession charge off a person’s Record is all part of a day’s work for me. Using various provisions of the Law, I can make a first-time Possession charge “go away,” so that a person will not have a Criminal Conviction put on their Record, and will not have the Driver’s License Suspended. This can be huge for anyone who is concerned about present or future employment.
If someone has had a prior Possession charge, or if they had a prior charge kept off of their Record, then they often worry about going before a Judge on a Second Offense, even it they are not charged as a second offender. Part of that concern is valid; no Judge is going to be happy to see someone committing the same, or at least a similar Offense as before. Understandably, a Judge is likely to think “if this person got Probation before, for an earlier such Offense, what do I need to do now to get them to stop? How can I get them to start taking this more seriously?”
Of course, at this point, the person is worried about Jail, and it would be naïve to think that the idea hasn’t crossed the Judge’s mind, as well.
My job is to make sure that doesn’t happen. You don’t pay a Lawyer to stand next to you while you get led away in handcuffs.
Accordingly, keeping the Client out of Jail is the top priority in any case where it is a realistic possibility.
Yet there are countless other negative, burdensome consequences a Judge can impose besides just locking someone up. The Court can send someone to all kinds of drug or substance abuse awareness classes, or Counseling, and hammer them with expensive and inconvenient testing. Add to that a catalog full of things like community service, work-force programs, Reporting Probation, and the like, and it become clear that while not going to Jail is great, a person can wind up on the dreaded “Probation from Hell” and wonder if Jail would have really been much worse.
My job is to make sure as many of those things as possible are outright avoided. Doing that takes more than just showing up in Court; it means I have to work closely with my Client from out very first meeting. Producing better results takes time and effort. It is not as simple as just throwing money at the Lawyer, either. Sure, there is no “bargain” in a cut-rate Lawyer who thinks his or her best asset is that they are inexpensive, and no one will ever get what they DON’T pay for, but just paying a lot of money to some Lawyer who makes it seem like he or she will go take care of everything is not the answer either.
If a case is based upon evidence strong enough to “stick,” then the only way to make things better for the Client, which really means making sure that the Client winds up with the least amount of consequences possible, is to work closely with them. Good work is the key to good fortune, and, as the old saying goes, nothing good comes easy. When I’m hired, I know I’ll have a lot of work to do, but the Client must be ready to do his or her part, as well, so that together, we can produce the best outcome possible.
And in the final analysis, the only result worth having is just that – the best outcome possible.