This week I will discuss common client questions pertaining to illegal drug and narcotic crimes in Pennsylvania during my weekly podcast. These are questions that many people will have if they are ever arrested and charged with this crime. Our criminal defense law firm defends individuals charged with drug crimes in Pennsylvania and New Jersey. Drug offenses can be graded as a felony or misdemeanor offense and represent a large part of our practice. Here are some common questions pertaining to drug crimes:
- What does the prosecution (district attorney) have to establish to convict someone of possession with the intent to deliver or distribute as opposed to simple possession?
Possession is an element of both possession with the intent to deliver and simple possession. Possession with the intent to deliver is a felony offense while simple possession is a misdemeanor. Possession with the intent to deliver requires the Commonwealth to establish beyond reasonable doubt the intent to distribute, sell, or otherwise deliver a drug or controlled substance to another person. People often believe that the Commonwealth can meet its burden of proof simply by introducing evidence that police recovered a large quantity of drugs from an individual following a traffic stop or search of a home or residence. There is case law, however, that tells us that a large quantity isn’t always enough and the Commonwealth needs more.
The prosecution can usually establish intent to distribute in 2 ways. First, through observed transactions where the prosecution will introduce a witness (usually a police officer) who will testify that he/she saw an individual sell or give drugs to another person. Another way is through a drug expert who can testify that, based on the circumstances surrounding the recovery of the drugs, there was intent to sell or distribute them. Drug experts will often testify about the packaging of the drugs and the paraphernalia found with it such as scales, money, and a vacuum sealer. All of these factor into an expert’s testimony.
- Can I still be convicted of a drug crime if police don’t find the drugs on me but just in the trunk of a car in which I was the driver? It isn’t even my car!
Yes, the prosecution can convict you of a drug crime through actual or constructive possession. Actual possession is where the drugs are found on your person. Constructive possession is where the drugs are not found on your person but rather in an area of immediate control and in a position where you can exercise dominion and control over it.
With regards to a car or motor vehicle, the location of the drugs is extremely important for your case. In this question where the drugs are found in the trunk of a car, the prosecution will also try to introduce evidence which indicates that knew the drugs were there such as, your personal belongings located near the drugs. If the drugs were found within the car cabin and underneath the passenger seat it could be more difficult for the prosecution to establish constructive possession; but not impossible! There is case law which is extremely helpful in these situations.
This is one of the reasons why you may not want to waive your preliminary hearing. While the hearing is not a trial as I have discussed in previous articles and a previous podcast, it is an opportunity to evaluate the strength of your case with regards to actual and constructive possession.
- I was stopped for speeding and the police officer told me that he smelled marijuana in the car. I denied it but he searched the car anyway without a warrant. Was this legal?
The police don’t need a search warrant to search your car but still need probable cause. Warrantless searches are permitted in Pennsylvania and New Jersey. There is less of an expectation in a car than in a house as cars are much more regulated with such things as an inspection requirement and state’s have a compelling interest with regards to vehicle and public safety.
- If police come to your house and ask to search without a warrant but you tell them no, can they search your home anyway?
In most situations, police are not permitted to search your house without a warrant but there are exceptions otherwise known as exigent circumstances. The most common exigent circumstance is hot pursuit where police are running after a suspect and the suspect runs into a house. The search of a home is much different than the search of a car and the expectation of privacy is much higher in the home and therefore there is a higher level of constitutional protection. Please keep in mind that like a car, you should never give police consent to search your property
- When can police use a drug dog to search a car?
Police don’t need probable cause to use a drug dog but only reasonable suspicion. Reasonable suspicion is a lower form of probable cause but it still requires police to initiate a drug dog search based on something more than a guess or a hunch. It can be based on awkward movements of the driver, extreme nervousness, or simply providing answers that don’t make any sense such as driving in the opposite direction of your claimed destination point. This is another reason why you should not provide police with anymore than your basic information
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