Article Provided by The Law Offices of Daniel J Miller
Under Virginia law, prosecutors bear the burden to prove each and every
element of a crime beyond a reasonable doubt. In short, that means they
bear the burden of excluding every reasonable hypothesis of innocence.
drug cases there are generally three prevailing defenses. Each defense is fact driven
so although a defense may work in one case, it may not actually work on all.
The three prevailing defenses in drug cases are:
- Search and seizure issues
- Possession issues
- Whether the commonwealth can prove that the substance found is illegal
Search & Seizure Laws
All searches of individuals, cars or homes are presumed to be unconstitutional. The Commonwealth bears the burden of first proving that the stop search
and seizure of the person car or home was constitutional. For example,
the prosecutor bears the burden of proving that an officer had reasonable
suspicion that a crime or traffic offense had been committed before stopping
Moreover, before the officer has the right to search a vehicle, he has
to have a reasonable belief that fruits of a crime are located within.
Most case law defines this reasonable belief in broad terms. Strong odor
or burnt or fresh marijuana or alcohol is the number one reason given
for the search of a defendant's vehicle.
The search of an individual's home or hotel room likewise carries certain
protections. The general rule is that a home or hotel room may not be
searched without a valid search warrant. The most often exploited exception
to this rule is when the police gain consent from an "authorized"
person or the police do a "knock and announce" and once at the
entry way of the home and have probable cause to believe that a felony
is being committed and that their inability to gain immediate access to
the home could result in the destruction of evidence.
The search of an individual and the constitutional safeguards that protects
him or her depends upon the nature and consequence of the interaction.
Most searches of individuals occur subsequent to arrest for other crimes
or in situations where the police have reason to believe that the person
being questioned is armed and dangerous.
The later search is limited to what is commonly referred to as a "pat
down" search which limits the officer's search to the outer portions
of the defendant's clothing. Unfortunately, the Courts have held that
where the officers feel or manipulate an area of clothing and determine
through training and experience that the object feels like drugs they
may under some circumstances remove the object.
A search subsequent to arrest also may carry constitutional safeguards
where the defense can prove that the officer lacked probable cause to
effectuate an arrest or where a strip search occurs and the officer fails
to abide by the strict confines placed upon them by the code of Virginia.
Two Types of Drug Possession
Actual possession and constructive possession are the two types of possession
cases that come before the Court. Actual possession occurs when the drugs are found on the individual. Constructive
possession more often occurs when the drugs are found near the individual
or in an area owned or recently occupied by the Defendant such has a car
or house. The later circumstance provides the better defense for the Defendant
since the prosecution has to rely upon circumstantial evidence to prove
Circumstantial evidence is that evidence that directly or indirectly tends
to prove the Defendant's guilt in any given case. As in the search
and seizure issue, the issue of constructive possession is case specific.
Some examples of facts that tend to prove the Defendant's guilt are
proximity to the drugs, furtive movements near the area where the drugs
are found, recent occupation of the vehicle or house, plain view, and
items such as identification or personal mail located near the suspected
drugs or admissions.
Proof that the drug as alleged is in fact the actual drug one is being
charged with has recently created an enormous hurdle for the prosecutors
since the advent of the Melendez-Diaz case. The Supreme Court in Melendez-Diaz
found that a defendant has a constitutional right to face all of his accusers
in a criminal trial. Accordingly, the Court struck down the State's
previous authority to submit a lab result to prove that the drug suspected
was in fact the drug being charged.
For the calendar year 2010 thru 2011 many prosecutors in Virginia were
faced with the overwhelming challenge of bringing the lab technicians
as well as all individuals that handled the drugs through out the process
to Court and in many cases had to dismiss cases based upon their unavailability.
Subsequently, the Virginia legislature has reduced this burden by passing
a law requiring the Defendant to notify the commonwealth of its intent
to challenge the lab certificates admissibility.
It is imperative that you contact a
Virginia Beach criminal defense attorney immediately after your arrest so that certain issues can be preserved
for trial. I have represented hundreds of satisfied clients charged with
simple possession and possession with intent to distribute marijuana,
cocaine, heroine, ecstasy, and psilocybin (mushrooms) in both federal
and state Courts in Virginia.
If you or a loved one has had the unfortunate luck of being charged with
a crime involving drugs it is imperative that you contact an attorney
that knows the law. Call our Virginai Beach firm for a
free consultation today!