Articles Posted in Drug Crimes

Earlier this month, a state appellate court issued a written opinion in a California drug possession case discussing whether or not the police officers’ search of the defendant’s car was justified. The court eventually concluded that the search lacked probable cause, and held that any evidence recovered as a result of that search must be suppressed.

According to the opinion of the court, police officers pulled over the defendant, who was driving a gold Cadillac. The defendant, who had a front-seat passenger with him, pulled over and explained that he did not have his license. The officers asked him to step out, and they patted him down to confirm that he did not have any identification on him. During the pat-down, they discovered a small amount of marijuana. The defendant explained that he delivered medical marijuana.

Officers placed the defendant in handcuffs and turned their attention to the passenger. The passenger was placed in handcuffs and told that he would be free to go if a search of the car did not reveal anything illegal. At this point, both the defendant and the passenger were out of the car, and the officers conducted a thorough search of the car. Ultimately, they discovered a backpack in the truck containing a gun and a large sum of money. The police then obtained a key to the locked glove box and found cocaine inside. The defendant was arrested and charged accordingly.

Just a few weeks ago, we discussed the concept of constructive possession under California law in a blog post. Recently, a state appellate court issued an opinion in another California gun case raising the issue of constructive possession.

According to the court’s opinion, a police officer approached the defendant’s vehicle when it was illegally parked near a popular lookout point. When the officer approached the car, the defendant, who was with two other people, explained that they were just enjoying the view.

The officer recognized the defendant from a prior contact, and knew him to be on probation. The officer asked if there was any contraband in the car. The defendant responded in the negative. The officer then asked the defendant for his identification. The defendant provided a false name initially, but later gave the officer his real name. The defendant then admitted to having a small amount of marijuana in a backpack that was in the car. The officer searched the backpack, which was located directly behind the center console, within reach of all three occupants. Inside was some marijuana, a knife, and a pistol. The gun was preserved for fingerprints and DNA; however, there were no fingerprints on the gun and the DNA was not tested.

Every California crime has two essential parts: an act element and an intent element. For many offenses, the act and intent elements are easy to identify. In most cases, criminal law requires a finding that the defendant acted willfully or intentionally. However, for some possessory offenses, such as the possession of drugs, the act and intent elements blur.

Typically, California possessory offenses require someone to either have “actual” possession or “constructive” possession. Actual possession is when someone physically possesses an object. For example, someone has actual possession of a gun that is in a holster strapped to their waist. Actual possession is often quite simple to determine. Cases involving actual possession are not unbeatable cases, because there may be a viable motion to suppress the evidence based on illegal police conduct or a violation of the defendant’s rights.

Constructive possession, on the other hand, is a legal fiction that allows the fact finder to determine whether someone possessed an item by considering the surrounding circumstances. In these cases, the contraband is not found on the defendant, but the prosecution argues that the defendant is guilty of possessing the item because the defendant constructively possessed it. If constructive possession is established, it has the same legal effect as actual possession.

In 2016, California voters passed Proposition 64, which eventually led to the legal recreational use of marijuana. Proposition 64 also contained provisions that reduced the criminal penalties for many California marijuana-related crimes, including for the cultivation and sale of marijuana. In a recent case, a state appellate court considered a defendant’s conviction for felony accessory.

According to the court’s opinion, in 2013, police officers had executed a search warrant at a residence, finding a large amount of marijuana. During their investigation, the defendant was arrested after officers saw him leave through the front door of the house. After his arrest, the defendant told officers that he was helping a friend package marijuana.

Initially, the defendant was charged with two felony counts of possession of marijuana for sale and cultivation of marijuana. However, under an agreement with the prosecution, the defendant pled guilty to felony accessory and was sentenced to a sentence of probation. After violating the terms of his probation several times, the judge revoked the defendant’s probation and sentenced him to two years of incarceration. The defendant appealed his conviction, arguing that under the subsequently enacted Proposition 64, he should be entitled to a resentencing.

In a recent California appellate decision, the court considered whether a conviction could stand against a defendant who was charged with the possession of methamphetamine-infused paper in prison. According to the court’s opinion, the defendant was an inmate at a state prison in California. A correctional officer found eight small pieces of numbered paper, along with a greeting card inside the defendant’s cell. The officer had heard from other officers that inmates were recently obtaining methamphetamine-infused paper in prison.

The officer had a preliminary test done at the prison which showed the presence of methamphetamine on a corner of the greeting card and on one piece of paper. Further testing at a lab showed that the remainder of the greeting card was negative, but that some of the papers contained methamphetamine. The defendant was charged with and found guilty of possession of methamphetamine while in prison, in violation of Penal Code section 4573.6, and sentenced to six years in prison. The defendant argued that the evidence was insufficient to prove that he possessed a usable amount of methamphetamine and that he knew the substance was methamphetamine.

Under section 4573.6 of the California Penal Code, the state must prove beyond a reasonable doubt that the defendant unlawfully exercised control over a controlled substance; knew of the substance’s presence; knew that the substance was a controlled substance; and possessed the substance in a sufficient amount so as to be used as a controlled substance. Under California case law, a usable amount is defined as a quantity sufficient “to be used by someone as a controlled substance,” which “does not have to be enough in either amount or strength to [a]ffect the user,” but cannot be “useless traces or debris.”

The Fourth, Fifth, and Sixth Amendments to the United States Constitution provide fundamental rights to all citizens. For example, police officers cannot perform a search without probable cause. Nor can they interrogate someone on the subjective belief that they look suspicious. For the most part, police officers must be able to point to specific facts that give them probable cause to believe someone committed a crime before they subject that person to investigatory procedures.

Of course, there are exceptions to that general rule. One common exception is when a defendant engages in a consensual encounter with the police. Courts have held that consensual encounters do not require a police officer to develop probable cause.  A recent California appellate decision illustrates this concept.

According to the court’s opinion, police officers were on patrol when they saw the defendant walk out of an apartment, look in their direction, and then turn around. The officers also saw the defendant put something into his pocket. The officers approached the defendant, asking him “Hey, how are you doing? What’s your name? Do you got anything illegal on you?” The defendant admitted to having a meth pipe on him. When asked if he had anything else illegal on him, the defendant admitted to having a “bunch of meth” on him. Police searched the defendant, finding methamphetamine, a pipe, and 162 dollars in small bills.

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