If your client is arrested for a drug-related offense, their defense will be driven primarily by the facts and circumstances surrounding the case as well as the particular offenses charged. But even before beginning to consider strategies to defend against the allegations themselves, defense attorneys should evaluate whether the prosecution can be weakened or defeated based on violations of the client’s procedural rights.
Because drug-related cases nearly always involve law enforcement officers discovering contraband, criminal defense attorneys’ analysis of procedural issues should include the following two questions regarding the search of the client and his or her property:
- For searches conducted without warrants: Did law enforcement officers have lawful authority to conduct the search?
Although Arizona law allows law enforcement officers to conduct searches without warrants in extraordinary circumstances, those exceptions have strict requirements and failure to meet them could be grounds for the exclusion of evidence. Commonly cited justifications for warrantless searches in Arizona include:
- Consent
Law enforcement officers are certainly allowed to search a person with his or her consent, and occasionally clients do consent to a search. But if law enforcement officers are not careful to clearly document the subject’s consent, whether or not consent was actually given can be challenged, particularly in cases where the subject of the search did not clearly understand he or she had the right to refuse to consent to the search.
- Incident to Arrest
Challenging law enforcement’s authority to conduct a search of someone they’ve arrested is a fool’s errand, but challenging the validity of the officers to make the arrest can often bear fruit. By invalidating the underlying arrest that authorizes the warrantless search based on lack of probable cause or other grounds, the results of the search can be rendered useless as evidence.
- “Plain View”
Law enforcement is also allowed to conduct warrantless searches in cases where they are lawfully in a position to see something that is immediately recognizable as evidence of a crime. In drug-related cases the evidence that may have been visible tends to be drugs or drug paraphernalia, so challenging the officers’ authority to be where they were in order to view the evidence may be a more successful strategy. For example, the plain view exception is frequently cited in searches that take place after a traffic stop, so challenging the validity of the traffic stop itself can lead to the warrantless search being found unconstitutional.
- Exigent Circumstances
Finally, officers may be permitted to conduct a warrantless search under “exigent circumstances,” which generally means that evidence would be lost, destroyed, or removed during the time required to obtain a search warrant. This is the state’s burden to prove and should almost always be challenged; after all, police procedures exist for a reason.
- For searches conducted under authority of a warrant: Was the search warrant issued and served properly?
Like challenging the authority of police to search the subjects of their arrests, accusing the court of improperly issuing a search warrant is in most cases unwise. But challenges can be made successfully to the factual basis asserted to establish the probable cause required for the court to issue a search warrant. The allegations made may have been inaccurate, misleading, or downright false. Law enforcement officers may have relied on tips or informants that aren’t sufficiently reliable to meet constitutional requirements. Additionally, Arizona law generally requires search warrants to be served during the daytime (between 6:30 AM and 10:00 PM) unless the judge specifically authorizes a nighttime search. Carelessness on the part of law enforcement officials could result in their warrant being invalid.
A client’s zealous defense requires attorneys to challenge the state’s case at every opportunity, and particularly following drug-related there are a variety of opportunities before ever considering the merits of the case. Attorneys defending clients accused of drug-related crimes frequently begin their representation by attacking procedural issues. If you have been arrested on drug charges, call us today to set up a free legal consultation.