Rights of the Accused
Drug Conspiracy & Distribution
Drug possession and distribution offenses are the most common type of offenses in criminal court. In Colorado, drug possession can be a felony or misdemeanor offense depending on the amount and type of drugs. The amount of drugs can often also determine if the case will be a distribution case or a possession case. It is a much more serious offense to distribute drugs than to simply possess them. Drug distribution offenses also include the intent to distribute. A person does not need to be caught selling drugs if the evidence supports that the drugs were intended to be distributed to others. Courts will often look to evidence such as scales, packaging material, large amounts of cash, and the amount of drugs to determine if there was intent to distribute the drugs.
In a drug case, the prosecution will have to prove that someone illegally possessed a controlled substance or that they possessed it with the intent to distribute it to others. The most common controlled substances in Colorado are methamphetamine, heroin, and fentanyl. However, there is a long list of controlled substances and the list includes many drugs that are often prescribed by doctors.
A person can still be charged for possessing drugs that are often prescribed by doctors. For instance, morphine is a controlled substance that is prescribed for pain. It is not illegal for someone to possess morphine with a prescription, but if they do not have a prescription, it is illegal. Even if one has a prescription for a drug, they can be charged with distributing it if they sell the drugs from their prescription to others. The prescription also needs to be valid not to be charged. If a person takes all their prescription medication but then gets more of the same drug off the street, the drugs obtained from the street are considered not to be legal.
What if Someone Did Not Know the Drugs Were in Their Car or Home?
There are many possible defenses to drug cases. The prosecution must show that the person knew they actually possessed the drugs. If someone leaves drugs at another’s home or car without their knowledge, it can be a defense that the owner of the home or car did not know the drugs were there. This can be difficult, but there are cases where this happens. There are also cases where a passenger in a car may stash drugs under the seat during a traffic stop. If the driver, was not aware that the passenger had drugs and had no control over the drugs, they should not be held responsible for them. However, if all parties deny the drugs are theirs, the police will probably arrest everyone and the argument with have to be made in court that the driver had no knowledge.
Vehicle Searches in Drug Cases
Most drug cases involve some type of search, and sometimes the searches are illegal. In drug possession cases, there is usually a search of a vehicle or of a person where an officer finds drugs. When an officer stops a person on the street, they need reasonable suspicion that a crime has been committed to justify a brief detention of the person. If officers fabricated the reason for the stop or their reasons are not reasonable based on the totality of the circumstances, any subsequent search is illegal.
Even if a traffic stop is justified, an officer needs probable cause to then search a vehicle without a warrant after it is stopped. If a driver is stopped for only a traffic violation and there is no reason to suspect any other crime, the officer cannot unreasonably prolong the traffic stop to obtain consent to search or for a drug dog to appear.
Officers need a warrant, consent, or probable cause to search a vehicle. Police usually will not get a warrant to search a vehicle after a traffic stop. It requires more work for officers to get a warrant after a stop. The law also does not require them to get a warrant to search a vehicle if there is probable cause that it contains evidence of a crime. This is often referred to as the “automobile exception” to the search warrant requirement. It relieves officers on the road from having to obtain a warrant to search a car but only if there is probable cause that contraband is in the car. If officers see drugs in plain view on the seat of the car, they will have probable cause to search the car and will not need a warrant. If a passenger or driver admits that there are drugs in the vehicle, there is probable cause to search a car without a warrant.
A search is illegal if conducted without probable cause or consent. If an officer does not have probable cause to search a vehicle, he will ask for consent. Often times, officers will try to intimidate or pressure drivers to consent to a vehicle search; however, the driver does not have to consent to a search. The officer is also not allowed to prolong a routine traffic stop in order to obtain consent.
Police can also conduct an inventory search of a vehicle that is impounded after a traffic stop. If a vehicle is impounded, police can inventory the vehicle and if they find any contraband in the vehicle while performing the inventory, that evidence can be used in a criminal case. The inventory is supposed to protect the owner against theft from any items contained in the car as well as protect officers from any claims that they stole items from the car. However, officers know that if they do not have probable cause, they can get around the warrant requirement by conducting an inventory search. While inventory searches are allowed, they can be improper if officers do not follow proper procedures and if they use it as a subterfuge to conduct an illegal search.
Possession vs. Possession With Intent to Distribute
There are many cases where someone possesses drugs for personal use but may be charged with a more serious distribution offense. If there is no defense to having the drugs, the defense can be that it was possession and not distribution. Prosecutors have a lot of discretion in how they charge cases. If a case involves evidence that the prosecutor considers supports distribution, they can charge someone with distribution even if only a small amount of drugs are found. For instance, if police find 2.5 grams of cocaine during the search of a home and also find scales, baggies, large amounts of cash, and multiple cell phones, they may decide to charge with a distribution offence instead of merely a possession offense. While 2.5 grams can be considered personal use, the prosecutor will argue that the other evidence supports that there was drug dealing activity. If only 2.5 grams are found in a search, and none of the other items are found, it is more likely that the case would be for just possession.
Police will sometimes tap phones and monitor calls and text messages of a suspect. These communications can also support the intent of the suspect to either possess or distribute drugs. If the monitored calls and texts show that a person has been selling drugs, they can be charged with a distribution offense, even if a subsequent search does not find a large amounts of drugs.
How Can Drug Treatment Be Used to Help My Case?
Drug crimes are often committed as a result of someone’s addiction. In many cases, if a defendant successfully completes a drug treatment program, it will usually help their case. If an addict is no longer using drugs, it is unlikely that they will reoffend. Prosecutors and judges know this, and they will take it into consideration when determining how a case should proceed and what punishment should be imposed. While sometimes treatment can result in a dismissal or reduction of the charges, there is no requirement that a prosecutor dismiss or reduce charges if someone completes treatment. However, if someone does complete treatment, they usually have a more favorable outcome than had they continued to use.
Call Ben LaBranche if You Have Been Arrested for a Drug Crime.
If you have been charged with a drug crime, you need a lawyer with experience handling drug cases. They can review the case information and determine if the arrest and search were valid. There may also be other defenses that can be raised depending on the circumstances.
Call Ben LaBranche at (225) 927-5495 if you have been arrested for a drug crime.
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