1839 S. Alma School Road
Suite 264
Mesa, Arizona 85210
(480) 374-8747
(602) 357-8606 (espanol)
177 N. Church Ave
Suite 312
Tucson, AZ 85701
(520) 468-6668
(602) 357-8606(espanol)

Penalties For Charged With A Drug Crime

(The content below was transcribed from an interview done with Acacia Law. We think you'll find it much easier
and more enjoyable to read this way.)

Interviewer: Okay. All right. Let's talk about what are the penalties and more of how you attack cases where people have possession, or paraphernalia charges, or intent to distribute, or that kind of stuff. What do you do once you read the police report? What are some of the common ways that you attack them and mitigate their issues?

Acacia Law A lot of the issues that I find are related to the Fourth Amendment, rights against unreasonable searches and seizures are an important one. The reason being is this, let me give you an example, people are always curious. Okay, if I live in an apartment, for example, if I live in a place and they find some marijuana there and other people there, am I guilty and can I be charged with possession of the substance, the illegal substance or the possession of marijuana, or the bong, or whatever is out there.

Well, there's the first issue that you go after it. You have say, three roommates and let's say that the police, for whatever reason, have a reason to search the premises and they find in one person's, who has their own bedroom, their dresser drawer, their stuff, in there they find a bag of weed or a pipe or both or a bong. Well, the people who are living in the other two bedrooms, even though they share common area, it's not likely that they are going to be found to be held in possession of that. Now, sometimes the police simply don't care, they just charge everyone in the house figuring that somebody will come around and 'fess up', at some point, or confess to that it was their's. The other reason they do that is because they just simply assume that everyone's involved.

There is another aspect called constructive possession, which I run into in vehicles such as cars as well as apartments or things of that nature. And, basically, what it is that, let's say that, take that same scenario, where you have the roommates and they all have their own different bedrooms but sitting out there in the middle of the living room, in plain view from the front door, is a bong on the table in front of the television.

Well, basically, what the police are going to say and what the prosecutors are going to allege, is that everyone in that apartment knew it was there, obviously, and if they're there and it's out in plain view or it's in a common area then you may not have it on your person, you may not have touched it or been seen utilizing it while the officers are there but that is not relevant in terms of how they view it. Basically, you have access to it, you know it's there, you're still there, you have constructive possession of it, and you’re as guilty as the person who actually owns the bong.

Interviewer: Really?

Acacia Law Because you know it's illegal. Yes. And so a lot of these cases, basically, you have to use, sometimes, some fairly sophisticated U.S. Constitutional Motions to Suppress Evidence in order to prevent people from being charged. If the Judge agrees that, under the circumstances, it's not constructive possession for an individual, then they simply walk away. And, again, I use the same type of tools in my practice when it comes to the allegation that we were talking about earlier about say the person who has a half ounce on there and maybe a box of plastic baggies in the kitchen somewhere. Those are the types of things where I go to work to establish and convince the courts or the prosecutor’s office, obviously, one really doesn't have anything to with other. Your argument is not really legitimate under the circumstances. If you take all the circumstances at the time and put them together, it simply doesn't add up to what they hope it does.

Interviewer: Well, it sounds like the battleground is when the police search either your car, or apartment, or your person so let's talk about how does that end up happening. Is it, do you have to let them do that? Is that where people makes mistakes and let them, let the police search you, you know?

Acacia Law They make mistakes all the time. It's a difficult area to really give people advice on, per se. But, basically, the police have to have some sort of reasonable basis for searching a particular area of your car or your apartment. Now, in a vehicle, again, this an example of constructive possession, let's say you have four people in the vehicle, one person in the backseat has a baggy in their pants pocket on them.

Now in that circumstance, it's not likely that the police are going to say that everyone in the car possessed the drug. Okay? Because it's in the person's pocket, it's not within plain view; it's not in a common area. On the other hand, let's say that the front ashtray has roaches in there or a half a joint. In that situation, the four people in the car are probably going to be charged with some form of possession based on the fact that it's in plain view, they all have access to it, and they all know it's there, that's the argument, I'm not saying that they're going to win on it, I'm saying that's how they're going to charge it. And then the lawyer has to do the work in order to beat the charge.

So what can people do? Well, if the officer smells marijuana in the car, bottom line is that, at that point, if they smell it, they're going to inquire of the people if they have been smoking, most people admit that they have, which can lead to drug DUIs and, also at that point, they pretty much have a right to search almost any compartment in the car if no one hands over or hikes over the drug that they smell, they assume that somewhere, somebody has either a pipe or a roach or something. Okay?

Interviewer: So if they, if the police say, "I smell weed. How much you guys been smoking?" and if everyone denied it and said, "We don't have any. What are you talking about?" Do the police still have the ability to search the car?

Acacia Law Yes, they do. They do because, clearly, the substance has been in the car and the people are in the vehicle. And so the smoke is considered an indicia or an indication that the substance is present. And most Judges will grant the police officer, even if you refuse, they'll simply get a telephonic search warrant from a Judge who's on duty. And they'll normally grant that as giving them probable cause to search the vehicle to see if there's any paraphernalia or any sort of drugs in there.

And that may be limited, for example, if they smell marijuana, the judge may limit their search for searching only for areas that could contain marijuana or if they see, like straws, vials, and stuff running out people's noses, which I've had happen, again, there's a presumption there. Yes, I've, literally, have had officers take a flashlight and look up people's nostrils and notice a white or blue substances on their noses. Basically . . .

Interviewer: Really?

Acacia Law Oh, yes. Yes. Absolutely. I mean, some of them are very, very meticulous and they will use that as a warrant to search the individuals as well as the vehicles to ascertain where the substance is or if there's paraphernalia. Again, use a straw, it has a trace residue because you snort through the straw, that's paraphernalia. And they have got their charge. So even if you snorted the whole container, the vial probably, in all likelihood, has some residue, so there's your paraphernalia. And I've never, I've yet to have them swab them out of someone's nose and call that possession but I wouldn't put past some of them. [just kidding]

Interviewer: So can the police just make up, I mean, can the police just say, "Oh, I smell marijuana." And then that's their justification for searching you or, you know . . .

Acacia Law Yes.

Interviewer: They'll say they, something was in plain sight or . . .

Acacia Law Yes, I can't, I can't say that all my clients have lied in that regard. I think that sometimes an officer has a suspicion, maybe he see's that they have bloodshot, watery eyes, maybe he senses something based on their behavior, that they're 'on something'. And, yes, I believe there have been situations where there was nothing overt, but the officer, essentially, created something out of thin air to give a basis for doing a search because he was certain he'd find something. So he might say that something that's not necessarily true when obtaining a search a warrant or trying to persuade the people to let him search the vehicle. That . . .

Interviewer: How about on private property like at a house or an apartment, let's say there's a party, police come to the door and they want to search the apartment or search the house, what's the law there?

Acacia Law The law is, basically, they are going to gain access, and this is where I have, this is the most common scenario that I have. An officer is going to a complex, apartment complex, or going by some houses for, oftentimes not the purpose of trying to see if anyone is smoking marijuana, they may be there for some other reason, they smell marijuana smoke from somewhere. Okay? So now they start sniffing and searching directions. And then I found them get their way, manage to get their way to where the smell is coming from a back patio, let's say of a apartment or something. Okay?

Now what they'll do at that point is they'll go to the front door, knock on it, bottom line is, if they even walk by your apartment door and they can smell marijuana coming out from underneath the door, they've got a right of entry at that point. And if you don't let them in, they don't care because they'll get a search warrant and some of them will simply just kick in the door because their argument will be, if we don't get in there right now, they're going to flush it all down the toilet and we are not going to able to get access to it.

So, again, and it depends in part on who the officer is, how fanatical they are about it or meticulous. But, yes, the law gives them the right to do that. All they need is, if they smell it, they're going to, a lot of officers are simply going to follow it until they find out from what location it's coming from.