A Brief Overview of Defending Drug Cases in Virginia

Criminal drug charges are of many different types involving a multitude of different drugs. The most serious involve distribution, possession of the drug with the intent to distribute, manufacturing, transportation across lines and conspiracy charges. The drug charges I most typically see involve cocaine, heroin, marijuana, opiates, fentanyl, and methamphetamine. There are other serious drug charges that are seen less often. Other frequent cases involve simply possessing the drug, but these charges have less serious consequences as well.

The key focus of the drug laws is to prevent individuals from selling illegal drugs, and the penalties can be extremely harsh especially if a defendant has prior drug distribution conviction or convictions of possession with the intent to distribute.

The cases involving distribution, possession with intent to distribute and possession generally involve the seizure of drugs in one of the following instances: a traffic stop, the search of a residence based on a search warrant, the alleged sale by a defendant to an informant, or a seizure of a person lured by an informant to a location to make a sale. Even though there is a good faith exception which can in many instances save a faulty search warrant, there are still legalities which can exist that can benefit a defendant.

Constructive Possession

During the execution of a search warrant the defendant may not be present, or even if present the defendant the Commonwealth can have difficulty showing the defendant possessed the drugs found. Mere presence at the scene of a crime does not make a person guilty, though it is a factor to be considered. In drug cases where the drug is not found on the defendant’s person, the Commonwealth must prove "constructive possession."

Constructive possession, as distinguished from actual possession, is where the Commonwealth must prove that the defendant not only had knowledge of the existence of the drug, but also was exercising "dominion and control." In other words the defendant intentionally and knowingly controlling the drug. In questioning whether there is sufficient evidence for the Commonwealth to prove this, defense counsel inquires if the drug is in plain view, meaning readily visible, also key questions are what evidence exists if any that shows the defendant had ownership or exclusive control over where the drugs were found. Are there any records, a deed or apartment rental agreement, are papers or items relating to the defendant, such as mail, driver’s license, photos, clothing found in the room where drugs are located. If the drugs are found in a vehicle is the vehicle titled in the defendant’s name. An important question is who else may have had access to that room, or to the vehicle.

Automobiles

Likewise, for automobiles that are stopped the question often arises if the Commonwealth can prove constructive possession. This is often the case where there is more than one person in the vehicle, and is especially a problem for the Commonwealth where the drugs are under the seat, in a closed console, in the trunk, or in the pocket of the door. The defense brings into question whether there is enough evidence to establish possession given the location of the drugs, who owns the vehicle, who was operating the vehicle, and whether there were any movements inside the vehicle to suggest someone inside was hiding the drugs. There are cases also where police claim drugs are tossed out the window. The defense seeks to bring into question if there is more than one occupant in the vehicle, whether the officer can be certain who threw the drugs out of the vehicle.

Distribution/Intent to Distribute

The distribution cases frequently involve a confidential informant, though in rare instances they involve an undercover police officer. In both types of situations the defense will explore whether the seller of the drug has been correctly identified. Also, the defense may inquire if the witness to the alleged sale is telling the truth. Is there a motive to falsify? Generally, the confidential informant has been arrested and the informant is trying to help their case by helping the police. It is not unusual that they have a history of illegal drug usage or a criminal record. In many instances they may be paid by the police for their aid. I like to point out in reference to an informant, that a chain is only as strong as its weakest link. The chain will break in the Commonwealth proving its case if the defense can establish enough weaknesses in the credibility of the informant.

With intent to distribute cases, the Commonwealth seeks to prove that the amount of drugs possessed is inconsistent with personal use. In other words is the quantity of the drug possessed more than a user of the drug will normally possess. Other factors that may exist to support an intent to distribute are whether the defendant possessed scales, were the drugs packaged in retail units, did the defendant possess a large sum of money, the monetary value of the drugs, was the defendant wearing an expensive watch or jewelry, or driving an expensive vehicle. Can these factors if they exist be explained away by defense counsel. Oftentimes, the prosecutor seeks to have a narcotics officer qualified as an expert to give an opinion that the drugs are inconsistent with personal use. The defense attorney may seek to establish that the officer’s opinion is not correct.

The New Technology

With the advent of new technology the Commonwealth seeks to strengthen the believability of the informant or other aspects of the case. The development of more sophisticated audio and visual recording equipment may serve to bolster the Commonwealth's case. The informant may be wired for sound and visual observation. The police officer may have a dash cam in his vehicle, or a body cam (camera) o his person. The old saying is that a picture is worth a thousand words. Also, the police oftentimes seize a suspect's cell and obtain a search warrant to get communications from the phone. They are searching for text messages that show the defendant was in communication with the informant and furthermore that the content of the messages on the phone establish drug dealing. If the defendant finds out that the Commonwealth is overwhelming against due to audio, and video, and text messages, then the task of the defense attorney is to seek a favorable plea agreement from the Commonwealth or a favorable result from the judge at a sentencing. Some of the factors that may be addressed by the defense attorney in seeking a favorable result are: 1) Is the defendant a drug addict? 2) Does the defendant need drug treatment. 3) Does the defendant have psychological problems and if so is he self medicating by using illegal drugs? 4) Does the defendant need psychological treatment? 5) Was the defendant the victim of abuse which caused the defendant to turn to drugs? 6) Is the defendant suffering from PTSD? 7) Does the defendant have a chronic illness? 8) Was the defendant selling drugs to support his drug habit? 9) Was the defendant in dire financial straits and sold drugs to support himself and his family?