Defense of Drug Possession and Drug Distribution Cases

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.

In 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:

  1. Search and seizure issues
  2. Possession issues
  3. 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 a vehicle.

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.

Search Protections

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 their case.

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 firm for a free consultation today!