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Winning a search issue

If you're going to practice criminal law, you're going to handle a lot of drug cases.  If you handle a lot of drug cases, you need to understand search and seizure law. 

In the vast majority of drug cases, the question is not how your client came into possession of the drugs, but how the police did:  whether their seizure was "reasonable" under the 4th Amendment.  If it wasn't, then your client gets off.  If it was, then your client has no defense; there's no question the drugs were found on him. 

Whether there is a legitimate search issue will dictate the outcome in almost every drug case.  You need to know this stuff if you're going to be a good criminal defense lawyer.

And you can start by reading the 9th District's decision last week in State v. Harper.

The Usual Suspects always show up on the list of the Supreme Court's worst decisions:  Dred Scott, Plessy v. Ferguson, Bush v. Gore, Roe v. Wade (which even supporters of abortion rights concede was a fairly dreadful opinion).  My personal favorite is Whren v. US, where the Court unanimously held that the police can pull you over for any traffic violation, even if it's a pretext to see if you've got drugs or other contraband or have an arrest warrant. 

And that's exactly what happens:  the police use it to pull people over to see if they've got drugs or other contraband or have an arrest warrant.  None of the people they do that to are remotely close to the status or life experience of the nine justices who decided Whren.  If they were, Whren might have come out the other way.

So meet Isha Harper.  One evening a highway state patrolman stopped Harper On I-71. One thing led to another, the "another" being the discovery of two kilos of Columbia's main non-coffee export in Harper's trunk.  After the trial judge denied her motion to suppress, a jury convicted Harper of possession with a major drug offender specification, and the judge shipped her for the mandatory 11-year prison term.

Let's go back to that motion to suppress.  The police version was simple:  they stopped Harper for following too closely, arrested her on an outstanding warrant, and found the drugs while they were conducting an inventory search prior to towing the car.  Obviously, if you can show the stop was bad, everything else goes away, but how do you beat a traffic stop? 

Normally, you don't:  there are so many trivial offenses -- lane changes without putting on the turn signal are a favorite -- and even if you didn't commit the offense, if the cop says you did, who's the judge going to believe? 

Not the cop, if his testimony directly conflicts with the video from his dashboard cam, which it did here:  the cop testified that he was sitting on the median when Harper suddenly changed lanes and cut in front of another vehicle.  The dashboard cam, though, showed that he'd already started following her when she changed lanes, and that there was nothing in front of her. 

Oops.  So, today's first lesson is, always ask for any video or audio tapes in your discovery requests.  And include a demand that any tapes be preserved.  My favorite was the cop who took the video tape home and "accidentally" recorded a TV show over it.  Even Terry O'Donnell was openly incredulous at that one.

That should've been the end of the matter:  bad stop, and everything after is the fruit of that oh-so-poisonous tree, The End.  But it's not:  the court proceeds to consider whether the inventory search was valid, and decides that didn't meet muster, either. 

The inventory is done to ensure that personal effects are safeguarded, and no false claims can be made against the officer or the towing company or garage, but there are numerous decisions holding that the inventory, to be valid, has to be conducted according to departmental policy.

The reason's Harper's a huge decision is because it holds that if the police don't follow the policy, the search is invalid.  The State Highway Patrol's policy says specifically that "once an inventory has been initiated, the officer must complete the inventory and should not stop after finding contraband or other incriminating materials."  That's the court's emphasis, and that's exactly what didn't happen here:  once the cops found the drugs, they stopped looking for anything else. 

There are a lot of decisions on when an inventory search really isn't, and Harper applies the policy requirement about as stringently as any of them.  Which leads to today's second lessonif you've got a case involving an inventory search, get the police department's inventory search policy.  And have a copy of Harper handy.


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