The Mn Criminal Defense, Personal Injury & Family Law Blog
Drug Possession Charges and Brainerd, MN Criminal Defense Lawyers
February 13, 2020
Until the end of the 1980s, authorities focused mostly on large drug trafficking operations. These convictions meant headline-grabbing sentences. But the prosecutions had lots of moving parts and were difficult to win. The early 1980s prosecution of auto magnate John DeLorean is a good example.
So, beginning in the 1990s, authorities began focusing more on simple drug possession matters. As a result, the number of these prosecutions increased by 75 percent between 1990 and 2006. The number of drug possession arrests has leveled off since then, but these prosecutions still form the vast majority of most drug court dockets in Crow Wing County.
Drug possession cases are less involved than drug trafficking cases. For example, most possession prosecutions do not involve lengthy investigations or even search warrants. Officers see a violation and they arrest the alleged violator.
Nevertheless, drug possession cases still have a number of moving parts and they are not easy to win. So, a Brainerd, MN criminal defense lawyer can often successfully resolve these matters. That resolution could be a complete dismissal of charges or a diversion program which results in no criminal conviction.
Produce the Substance
As mentioned, police officers rarely obtain search warrants in drug possession cases. Events happen too quickly. However, the Fourth Amendment still applies in these situations. This provision prohibits unreasonable searches and seizures. So, in order for the seized physical evidence to be admissible in court, a search warrant exception must apply. Brainerd, MN criminal defense lawyers deal with several exceptions, including:
Consent: Owners or apparent owners can give police officers consent to search a building or other property. Apparent owners are people like a spouse whose name is not technically on the deed. Consent is an affirmative act. Opening the door for officers is definitely not consent. Verbally inviting them in is probably not consent to search either. But agreeing to “have them take a look around” is definitely consent.
Exigent Circumstances: The emergency exception is related to the consent doctrine. If officers believe someone is in trouble, they may enter a dwelling without a warrant. Common examples include disturbance calls and gas leaks. During these security sweeps, officers may seize any drugs or other contraband they see in plain view.
Plain View: This exception often comes up in vehicle searches. If officers see contraband in plain view, they may seize it without a warrant. The seized evidence is only admissible in court if officers were lawfully in that place at that time.
If prosecutors cannot produce the alleged drugs in court, there is no evidence against the defendant. An officer’s testimony about drug possession is not the best evidence under the rules of procedure, so such testimony is therefore inadmissible. Without any physical evidence, a Brainerd, MN criminal defense lawyer need not bother with the two issues discussed below. However, if a Crow Wing County judge rules the evidence is admissible, the case continues.
Brainerd, MN Criminal Defense Lawyers and Proof of Illegality
Officers always testify that the seized substance “field-tested” positive for cocaine, marijuana, or whatever. However, these field tests are completely unscientific. Frequently, they are little more than visual inspections. So, errors are common. In 2019, officers arrested Georgia Southern quarterback Shai Werts on drug possession charges. The substance field-tested positive for cocaine. A subsequent chemical test revealed that the substance was bird poop.
Significantly, the state will not perform an additional test unless a Brainerd, MN criminal defense lawyer makes such a request. In many situations, attorneys request a retest from an independent laboratory. Many times, these results are different from the ones police technicians found.
Marijuana is a special case, now that hemp is legal in Minnesota. Physically, marijuana looks, feels, and smells exactly like hemp. So, the state must perform a THC content test to determine the difference between the two. Legally, the substance is only marijuana if its THC content exceeds .03 percent.
There is one last major hurdle in a drug possession case. The state must establish all three elements of possession, which are:
Assume Juan gives officers consent to search his apartment. Unbeknownst to him, Jerry, Juan’s roommate, has a marijuana stash under his bed. Officers arrest Juan after they find the stash. Those charges will not hold up in court, unless the state can prove that Juan knew about the stash.
Or, assume Betty and her friends are passing a joint at a party. When officers arrive, Cathy is taking a drag. Officers arrest Betty because she was close to the joint and she knew it was marijuana. However, these charges will probably not hold up in court either. A Brainerd, MN criminal defense lawyer can argue that Betty did not control the joint.