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Considerations in Defending a Drug Charge

On Behalf of | Aug 8, 2019 | Personal Injury

Drug offenses are serious crimes, often with significant penalties, including mandatory minimum sentences. What are some of the important questions to consider for an individual facing drug charges? What are some of the issues a criminal defense attorney explores when defending a client charged with a drug offense? Because the penalties for drug offenses can be so severe, it is important to carefully examine every step of the government or Commonwealth’s case and then determine the best approach for defending a client facing drug charges.

State vs. Federal Charges

Drug charges can be initiated in state court, as well as federal court. Generally speaking, federal charges are considered more
serious, as the federal system relies upon sentencing guidelines for punishment, contains enhancements for career offenders, has mandatory minimum sentences for many drug crimes, and can have significant additional charges if guns are involved in the drug offense. It is extremely important in the federal system to immediately begin investigating the charged offenses and potential options for those facing federal criminal drug charges.

State drug charges are, of course, also very serious. Again, it is important to investigate every aspect of the offense
charged, from the initial stop, the search and seizure, the drug analysis, and the weight of the evidence against the accused. In both state and federal court, these are all aspects of the government’s case that can be attacked, holding the prosecution to its burden of proving every element of the drug offense charged beyond a reasonable doubt.

Beyond a Reasonable Doubt

As with any criminal charge in either state or federal court, the Due Process Clause of the United States and Virginia Constitutions protects the accused against a conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime of which the individual is charged. Beyond a reasonable doubt is a high burden of proof, and in defending a criminal case, the defense attorney must be sure that the prosecutor is required to meet this burden by challenging any portions of the government’s case that are subject to objections or

RELATED ARTICLE: Arrested for First-Time Possession of Marijuana in Virginia? Know Your Options

Rights Under the Fourth Amendment

Under the Fourth Amendment, “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.” This amendment protects individuals against unreasonable police action, and if law enforcement has not acted appropriately, then the evidence gathered can be excluded. Generally speaking, for Fourth Amendment purposes, a
search or seizure typically requires a warrant, which can only be issued upon a showing of probable cause.

There are no easy answers regarding stops, seizures, searches, search warrants, dog sniffs, GPS tracking, cell phone tracking, and expectations of privacy; they are very nuanced, fact-specific issues. It is extremely important to look at all the circumstances of any stop,  search, or seizure in order to be sure that the police have acted properly. Furthermore, the law in this area is constantly changing as the United States Supreme Court and lower courts interpret the meaning of the Fourth Amendment in the context of stops, searches, and seizures, especially in light of new technology. At Fishwick & Associates, our attorneys stay abreast of these changes and court decisions.

Every aspect of the stop, search, and seizure must be examined when defending a drug

  • Did the police have reasonable suspicion for the stop?
  • Was there probable cause for the search?
  • Were there “exigent circumstances” justifying a search without a warrant?
  • Was there a dog sniff involved?

These are just some of the questions which must be examined in assessing whether or not law enforcement acted properly and within the bounds of a defendant’s Fourth Amendment rights.

The Stop

The first area to explore in any criminal case, particularly a drug offense, is whether or not the initial stop of the defendant was proper, since drug charges often result from traffic stops. Generally speaking, a police officer cannot randomly stop a vehicle. Rather, a police
officer must have a reasonable, articulable suspicion of criminal activity to detain an individual. Conducting an investigatory stop of an automobile is a seizure for Fourth Amendment purposes, and an officer need only have reasonable, articulable suspicion to detain a person for the purpose of
investigating possible criminal behavior. In other words, a stop can be valid even though there is no probable cause to make an arrest. However, the stopping officer’s reasonable suspicion need to be based on objective facts that the individual is involved in criminal activity. Thus, although the threshold for a stop is fairly low, the officer is still subject to an objectively reasonable standard. If the officer had no such reasonable suspicion, then the drug charge is open to attack in court.

The Search

If the stop was valid (based on a reasonably articulable suspicion of criminal activity), the next area to examine is whether or not the search which resulted in the drugs was valid. Generally speaking, a search must be based on probable cause—a higher standard than reasonable suspicion. There are, however, numerous exceptions to this requirement. For instance, an individual can give consent to a search, a search
can be made pursuant to a valid arrest, and a car can be searched under certain circumstances.

One confusing part of Fourth Amendment law is whether or not the defendant had an expectation of privacy in the area searched. If the defendant did not have such an expectation, then the defendant does not have “standing” to argue that there was no probable cause for the
search. This area of the law is fairly complex, and so it is very important for the lawyer defending against a drug charge to be familiar with all of the
requirements for a search, with the exceptions to the search warrant requirements, and the case law regarding expectations of privacy.

Another important consideration is whether or not a drug-sniffing dog was involved in locating the drugs. The United
States Supreme Court has ruled that use of a drug-sniffing dog on a homeowner’s porch constitutes a search within the meaning of the Fourth Amendment. Accordingly, in that instance, when a search of a porch is involved, probable cause is
required for the use of the drug-sniffing dog.

Similarly, the law regarding GPS tracking devices continues to evolve. In 2012, the United States Supreme Court ruled
that the government’s installation of a GPS on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search. Again, in such instances, probable cause and generally a search warrant would be required. Most recently, in 2018, the United States Supreme Court ruled that location information obtained from a defendant’s wireless carriers was the product of a search—and thus subject to the Fourth Amendment.

As the courts attempt to keep up with technology, the law regarding cell phone data, GPS monitoring, social media
accounts, and other emerging technologies and services will continue to evolve. It is important for attorneys to keep abreast of these changes in order to properly defend against drug charges. At Fishwick & Associates, our attorneys consider all these options in defending a drug charge, and monitor the latest developments in the law to most effectively defend our clients facing drug charges.

The Exclusionary Rule

What happens if drugs (or other evidence of a crime) are found in a manner that violates the Fourth Amendment? Generally
speaking, the court will exclude the evidence—meaning that it cannot be used against the defendant. The exclusionary rule is not a part of the United States Constitution itself, but a judicially created remedial measure used to deter Fourth Amendment violations.

The scope of the exclusionary rule is broad, reaching not only primary evidence obtained as a direct result of an
illegal search or seizure, but also evidence discovered later and found to be derivative of an illegality or “fruit of the poisonous tree.” Since warrantless searches and seizure are generally presumed to be unreasonable under the Fourth
Amendment, the government bears the burden of proving by a preponderance of the evidence that such search or
seizure is lawful. However, because suppressing evidence under the exclusionary rule may result in drugs charges being dismissed, courts tend to use it as a last resort instead of a first impulse.

There are a number of exceptions to the seemingly straightforward exclusionary rule. For instance, the inevitable
discovery exception allows unlawfully obtained evidence to be admitted at trial if the government can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means.

Similarly, the good faith exception provides that even if a warrant is invalid for lack of probable cause, the
exclusionary rule does not apply if the police acted in objectively reasonable reliance on the subsequently invalidated search warrant.

The new and distinct crime exception provides that if a person engages in new and distinct criminal acts during an
allegedly unlawful police encounter, the exclusionary rule does not apply. These are just some of the exceptions to the exclusionary rule; there are numerous others. At Fishwick & Associates, our attorneys are familiar with these exceptions in defending clients charged with drug offenses.

Since the exclusionary rule is a court-made doctrine, and is not specifically listed in the Constitution, it is subject to
change, erosion, and narrowing. It is important to vigorously protect a defendant’s Fourth Amendment rights, despite the seemingly endless number of exceptions to the exclusionary rule. In appropriate circumstances, the evidence
of an illegal search and seizure will be excluded—making the criminal prosecution of a drug offense more difficult.

Rights under Miranda v. Arizona

Almost everyone has heard of Miranda rights—we have all seen police officers advising individuals of their Miranda rights in books, movies, and
television shows. As the officers say: “You have the right to remain silent. Anything you say can and will be used against you. You have the right to call an attorney. If you cannot afford one, the court will appoint one for you.” We even call this process Mirandizing a person. While, at first glance, Miranda rights seem straightforward, as with many areas of the law, it is not as simple a concept in application.

In order for Miranda rights to attach, an individual must be “in custody.” But what does that mean? The concept of “in custody” is not necessarily clear, and whether or not an individual is “in custody” for purposes of Miranda warnings is subject to a number of different factors.

This is an area of the case which must be vigorously explored and investigated in order to determine if any statements made or confessions given by a defendant can be excluded because they were taken in violation of a suspect’s Miranda rights. Accordingly, the attorneys at Fishwick & Associates will carefully consider whether a client facing drug charges was properly advised of their Miranda rights—and, if not, what can be done about it.

Chain of Custody and Chemical Analysis

In prosecuting a drug offense, the government must prove that the drugs that were seized from the defendant are the same drugs that tested positive for an illegal substance, and that the laboratory tests were properly performed. Two important areas with regard to the drugs themselves are chain of custody and the validity and accuracy of the certificate of analysis showing the chemical
composition of the substance.

Chain of custody means that the government must account for the drugs from the time they were seized from the suspect until the time they were presented to the lab for analysis, and then within the lab itself. If at any time the chain of custody is broken, and it is not clear where the drugs were, or who had possession of the drugs at some point in the process, then the defendant has a strong argument that the prosecution cannot show beyond a reasonable doubt that the drugs that were analyzed are the same drugs that were taken from the defendant.

The government has the burden of proving its chain of custody, and the evidence must afford reasonable assurance that the exhibits at trial are the same and in the same condition as when they were first obtained.

The next important area is the chemical analysis. When facing a drug charge in state court, the Virginia Code contains clear requirements for the contents of and procedures for admission of certificates of analysis. These procedures are
found in Virginia Code §§ 19.2-187 et. seq. It is important to carefully examine these statutes in defending against drug charges to determine if any of the statutory protections and steps are lacking. If so, that is one way the drug charges may be attacked.

In 2004,
the United States Supreme Court ruled that admission of a certificate of
analysis into evidence without the presence of the chemist who prepared the
certificate of analysis may violate a defendant’s rights under the
Confrontation Clause of the Sixth Amendment. Testimonial evidence against a
defendant is inadmissible unless the declarant appears at trial, or if the
declarant is unavailable, the defendant had a prior opportunity for
cross-examination. This famous case is called Crawford v. Washington.

But what is testimonial evidence? In another well-known case, Melendez-Diaz v. Massachusetts, the United States Supreme Court ruled that a chemist’s certificate of analysis to determine the chemical composition and weight of illegal drugs was testimonial. Pursuant to Crawford, a chemist who prepares a certificate of analysis to be used as testimonial evidence must be available for cross-examination by the accused.  Significantly, however, the Melendez decision made clear that an accused may waive his confrontation rights by failing to object to the offending evidence and that courts may adopt procedural rules governing the exercise of such objections.

Challenges to the certificates of analysis are important in defending against drug charges, since it is generally the certificate which will demonstrate that the drugs seized from a suspect actually contain an illegal substance. It is important, therefore, to be familiar with the statutory procedures and to be sure that the prosecution has complied with all the procedures. It is also important to assure that these rights are not inadvertently waived by failing to object to irregularities in the process or problems within the chain of custody. Accordingly, the attorneys at Fishwick & Associates will carefully examine any chain of custody issues in defending a client against drug charges.

Individuals Facing Drug Charges Need Careful Investigations and Aggressive Defenses

There are many things to consider when a defendant is facing drug charges in either state or federal court. Often a defendant is facing considerable jail time if convicted, particularly in the federal system. It is therefore important to carefully examine and investigate every step of the process, from the initial stop to the analysis of the drugs, to be sure that law enforcement and the prosecution acted in accordance with a defendant’s constitutional and statutory rights. Any irregularities in the process must be challenged prior to trial, and if the matter proceeds to trial, the prosecution must be held to its burden of proof beyond a reasonable doubt.

Fishwick & Associates: Fighting for Defendants Accused of Drug Offenses

If you have been accused of a drug offense in Virginia, Fishwick & Associates can help you understand your legal options. To schedule your confidential consultation, complete our online contact form or call us at 540-345-5890.


In re Winship, 397 U.S. 358 (1970).

U.S. Const. Amend. IV.

Terry v. Ohio, 392 U.S. 1 (1968).

Whitaker v. Commonwealth, 279 Va. 268, 687 S.E.2d 733 (2010).

Brown v. Texas, 443 U.S. 47 (1979).

United States v. Jones, 565 U.S. 400 (2012).

Carpenter v. United States, 138 S. Ct. 2206 (2018).

Florida v. Jackson, 569 U.S. 1 (2013).

Segura v. United States, 468 U.S. 796 (1984).

Hudson v. Michigan, 547 U.S. 586 (2006).

Coolidge v. New Hampshire, 403 U.S. 443 (1971).

Nix v. Williams, 467 U.S. 431 (1984).

United States v. Leon, 468 U.S. 897 (1984).

Testa v. Commonwealth, 55 Va. App. 275, 685 S.E.2d 213 (2009).

Miranda v. Arizona, 384 U.S. 436 (1966).

Va. Code §§ 19.2-187 et. seq.

Pope v. Commonwealth, 60 Va. App. 481, 729S.E.2d 751 (2012).

Crawford v. Washington, 541 U.S. 36 (2004).

Melendez-Diaz v. Massachusetts, 557 U.S.
305 (2009).