Felony Possession of Controlled Substance Case Dismissed Due To Illegal Stop and Search
The Fourth Amendment of the United States Constitution is a beautiful thing. It protects each-and-every one of us, citizens and non-citizens alike, from unreasonable and intrusive police conduct. This case was about just that – unreasonable, intrusive, and illegal police conduct – that caused my client to be unlawfully arrested and charged with felony possession of a controlled substance.
When Can The Police Legally Search Me ?
The basic rule under the fourth amendment is that the police may only conduct reasonable searches and seizures. Searches with a valid search warrant are presumed to be reasonable. Searches without a search warrant are presumed to be unreasonable. When the accused establishes that the stop or search occurred without a warrant, it becomes the prosecutor’s burden to prove that the search was reasonable. Prosecutors generally do not like working – especially on possession of less than a gram cases. It is sad that more attorneys don’t take these cases more seriously. I firmly believe that if we set these for trial and made the state work, we would win more of these.
In this case, my client was sitting in his parked car in a parking space outside of his apartment in the apartment parking lot at 11:30 at night. He was just sitting there minding his own business, not bothering anyone, and not doing anything out of the ordinary. That is when two Houston police officers drive by. Cops like to put a name to everything they do. This was a “parking lot check.” One of the officers was Houston Police Department Officer Outlaw. No joke, that is his name, and as his name suggests, he is gung-ho about his job.
Houston Officer Outlaw claims that as he is driving by my client’s car, he sees my client sitting in the driver seat. Outlaw claims my client sees the cop and that that my client slouches down in his seat or ducks, so as to hide himself or something else from the cop. Outlaw claims that ducking reasonably led him to believe that my client was committing a crime – possibly stealing a car, especially in this “high crime area.”
Next, Officer Outlaw claims that he parks his car and approaches my client on foot when my client ducks again, and that when Outlaw got to my client’s car, Outlaw could see wires hanging out from the dashboard and steering column. At this point, the Houston police officer orders my client out of the car and claims to immediately see a meth or crack pipe sticking out of his pocket. Naturally, my client is then arrested and treated like a piece of feces. See this YouTube video if you want to see how Officer Outlaw treats people like you and me for simple traffic violations.
Before we get more into this, I want to know: When you are searching for a criminal defense attorney, do you want to hire lawyer who believes what the police and prosecutor say? Or do you want to hire a lawyer that believes you and believes in you? I don’t believe what the police and prosecutors say. I hear out my clients. I try to believe them. I try to believe in them. I try to tell their story. In this case, I did just that and I was able to win a dismissal on the day this felony PCS case was set for a motion to suppress.
My client’s story – and the truth – is that my he is sitting in his car while it is warming up on a cold winter night before going to the store. He sees the officer driver behind him, but does not duck. Nor does he duck when he sees the officer the second time as the cops are walking towards him with their guns drawn. The officer drives past my client’s car. and parks his car some distance away, and then walks over to my client’s car. But he didn’t just walk over. He walked over with partner. Both had their guns out. Both were pointing their guns at my client.
When the cop finally gets to my client’s car, he does not see wires hanging out of the dash and steering column. At worse, he may have seen a wire handing out of the center console. You know, like maybe a headphone jack? Most importantly, when the officer asks if the car my client is sitting in is his client’s car – before my client got out of the car –my client takes the key out of the ignition and shows it to the officer. It was only at this point that Outlaw the outlaw officers orders my client out of the car.
So what is the problem here? Everything, arguably. I was the first to admit that this was a tough case to win, especially at first glance, but that is why great criminal defense attorneys look at their cases more than once. I spoke to several mentors – far more experienced lawyers, board certified, bar presidents, appellate lawyers – who said this case was a loser and that my client needs to accept the plea agreement for a 2-year deferred adjudication instead of risking losing the motion to suppress and getting the 4-year deferred plea agreement I worked out. While I let my clients make up their own minds, I wasn’t ready to give up on him, and I pushed for a dismissal, because unlike those other lawyers, I did the research and I knew our facts, and I believed in our facts.
S, as a trial lawyer, how do I prepare for any criminal case? First, I interview my client. I allow my client to tell me their story, and I even encourage my clients to act out the scene. When we act out the scene we frequently discover facts and circumstances that are hard to articulate by just telling the story verbally. I also visit the scene, which is very valuable. Another important thing I do is subpoena everything I can from the police department — body camera footage, pictures, drug lab results, dash camera footage, MDT messages, AVL information, and anything else I think may be relevant. In this particular case, because the officer said the crime occurred in a “high crime area,” I did a statistical analysis to figure out if the area is actually a high crime area.
The law says that an officer can detain a person if the officer has a reasonable suspicion to believe that the particular person has engaged in, is engaged in, or will soon be engaged in a crime. A reasonable suspicion has to be based on specific and articulable facts. A reasonable suspicion must be based on more than a mere hunch, and it must be based on facts and circumstances that would lead a reasonable person to believe the accused was engaged in unusual activity and that the activity is related to crime. If the officer does have a valid reasonable suspicion, but the suspicion is dispelled, the officer cannot unlawfully prolong the detention of the accused. Any evidence seized or statements made following the unnecessary lengthening of the detention must be suppressed.
Here, I used a little different negating tactic than I would normally use in a case that I had set for a suppression hearing or trial. I told the prosecutor that, for the purpose of the negotiation, I would concede that my worse facts and his best facts are true in relation to the original reasonable suspicion. So basically, I said, while I think I have room for argument that it is not true, let’s say that your officer is driving through a parking lot in a high crime area and my client appears to hide something at this late hour. I will admit to that although I will not concede that at trial. Once your client approaches my client with flashlights out and guns blazed, my client is detained. But once the officer asks what my client is doing and he takes the keys out of the ignition and shows them to the officer, the officer may no longer detain my client. I also told the prosecutor our version of the facts, obviously. The prosecutor was as bothered as I that the there were no pictures of these wires hanging out everywhere and that there was no mention of the actual car that was the subject of what he thought was a car theft anywhere in his offense report.
The prosecutor made the right call and dismissed the case. I want to say it came down to me offering to show him the above-linked video, but it came down to hard work, great research, believing in my client, and the facts. It also helps that the prosecutor was reasonable and willing to listen.
This was a good win. Now, with this felony possession of controlled substance case dismissed, my client can move forward with his life. I am very glad, however, that he chose to write a great positive review about me on avvo.com.
Please call or email if you want to talk to me about you or a loved one’s case. My email address is Info@AttorneyRoth.com. Write a comment if you would like to learn more about the fourth amendment and illegal searches and seizures.
Cory J. Roth
Cory Roth Law Office
4306 Yoakum Boulevard, Suite 240
Houston, Texas 77006
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