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.
Comments