Fighting the so-called “War on Drugs”

By Tulsa Criminal Lawyer Kevin Adams
Tulsa , Oklahoma

The "War on Drugs" is actually a War on Citizens who use Drugs

According to the most recent data from the Bureau of Justice Statistics the United States incarcerates 2.4 million people in prisons and jails. The United States has 5% of the global population but is responsible for incarcerating about 25% of the people imprisoned world wide. A large number of these people that the United States imprisons are for non-violent drug offenses.
The so-called “War on Drugs” is one of the most important civil rights issues of our time. The ramping up of the “War on Drugs” has lead to an erosion of our civil rights against unreasonable search and seizure, has increased corruption in the law enforcement community, increased the tendency of some members of the judiciary to turn a blind eye to police officers that routinely commit perjury. The war on drugs has generally eroded respect for the law and law enforcement in our country.
I sometimes wander how the American citizens of the past stood by and allowed horrible atrocities such as slavery and Jim Crow laws to continue? I cant help but think in 50 or 75 years that the average citizen will look back at our population and ask how we could allow the “War on Drugs” to be waged against our citizens. Will the citizens of 50 or 75 years from now ask questions like:
“How could they have incarcerated people for and addiction?”
“Why did they think it was moral to destroy a family because a family member had an addiction?”
“Why did they think locking up parents was a better solution than educating their children?”
Regardless of how I feel about what the law should be or what the law may be one day the reality is that today there is a “War on Drugs” that is destroying countless lives. This article describes the different types of drug offenses that a n individual may be charged with in Oklahoma, the types of sentences that may be imposed if convicted of those charges and how to fight those drug charges within the legal system.

THE DRUG SCHEDULES

Oklahoma state drug laws are written in a confusing manner. What the legislature has done is classified various drugs according to drug schedules (Schedule I, II, III, IV & V). These schedules can be found in the statutes at Title 63 O.S. Section 2-201 through 2-212. The drug schedules include lots of different drugs and it has been my experience that many lawyers and even prosecutors are very unfamiliar with these schedules. When defending someone accused of a drug offense I recommend verifying that the schedule alleged in an information is actually the correct schedule.

TYPES OF DRUG OFFENSES

One of the most difficult aspects of the Oklahoma drug laws is figuring out the range of punishment for each offense. Generally the offense can be classified into 3 categories. Simple possession, distribution & possession with intent to distribute offenses and trafficking offenses.

SIMPLE POSSESSION OF DRUG OFFENSES

The possession of any Schedule III, IV or V substance or the possession of marijuana is a misdemeanor for the first offense carrying up to 1 year in prison and for a second and subsequent offense it is a felony carrying from 2 to 10 years in prison.
The possession of a substance found in Schedule I or Schedule II is a felony the first time. (Except marijuana, marijuana is a Schedule I substance but is treated as a schedule III, IV or V substance)

Simple Possession of Marijuana

The most common drug that people are arrested for is marijuana. In Oklahoma the simple possession of marijuana is against the law. The law governing the simple possession of marijuana is found at Title 63 O.S. Section 2-402 (B)(2) which reads.

Any Schedule III, IV or V substance, marihuana, a substance included in subsection D of Section 2-206 of this title, or any preparation excepted from the provisions of the Uniform Controlled Dangerous Substances Act is guilty of a misdemeanor punishable by confinement for not more than one (1) year and by a fine not exceeding One Thousand Dollars ($1,000.00). A second or subsequent violation of this section with respect to any Schedule III, IV or V substance, marijuana, a substance included in subsection D of Section 2-206 of this title, or any preparation excepted from the provisions of the Uniform Controlled Dangerous Substances Act is a felony punishable by imprisonment for not less than two (2) years nor more than ten (10) years and by a fine not exceeding Five Thousand Dollars ($5,000.00).

The first time simple possession of marijuana in Oklahoma is a misdemeanor and carries up to a year in jail and a $1,000 fine. The second and subsequent possession of marijuana in Oklahoma is a felony and carries from 2 to 10 years in prison and up to a $5,000 fine.

Medical marijuana is legal in 14 states. In California possession of less than an ounce of marijuana is an infraction and carries only a $100 fine. In Colorado possession of 2 ounces or less is a “petty offense” that carries a $100 fine. In Alaska simple possession of less than an ounce of marijuana in your home is legal. However, in Oklahoma the marijuana laws are harsh. In Oklahoma the simple possession of marijuana carries up to 1 year in jail and the second offense of simple possession of marijuana carries up to 10 years in prison. And yes, Oklahoma is still incarcerating people for simple possession of marijuana. I have seen multiple defendants from Tulsa County go to prison for second offense simple possession of a joint of marijuana.

Simple Possession of Schedule I or Schedule II Substance

Possession of cocaine, heroin, Cocaine Base (commonly known as crack), methamphetamine and all other Schedule I and Schedule II substances is a felony for even the first time offenders. The law governing the possession of these offense can be found at Title 63 O.S. Section 2-402 (B)(1) which reads:

Any Schedule I or II substance, except marihuana or a substance included in subsection D of Section 2-206 of this title, is guilty of a felony punishable by imprisonment for not less than two (2) years nor more than ten (10) years and by a fine not exceeding Five Thousand Dollars ($5,000.00). A second or subsequent violation of this section with respect to Schedule I or II substance, except marijuana or a substance included in subsection D of Section 2-206 of this title, is a felony punishable by imprisonment for not less than four (4) years nor more than twenty (20) years and by a fine not exceeding Ten Thousand Dollars ($10,000.00).

So the first time possession of a Schedule I or Schedule II substance carries from 2 years to 10 years in prison and up to a $5,000 fine. A second and subsequent conviction of possession of a SChedule 1 or Schedule II substance carries from 4 years to 20 years in prison and up to a $20,000 fine.

To convict a defendant of possession of a controlled dangerous substance all the state must prove:

OUJI-CR 6-6 DRUG OFFENSES: POSSESSION - ELEMENTS

No person may be convicted of possession of a controlled dangerous substance unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
First, knowing and intentional;
Second, possession;
Third, of the controlled dangerous substance of [Name of Substance].

A common issue that arises in drug offenses revolves around the possession of minute amounts of drugs. For example a defendant may possess a baggie that contains the residue of a controlled drug. Often times those charged with these offense will ask “How can I be convicted of possession of drugs when all I had was a baggie with residue?” The Court of criminal Appeals has repeatedly rued that the possession of any quantity of contraband is sufficient to invoke the statutory prohibitions. (Regardless of whether the amount is useable or not.) See Whitehorn v. State, 1977 OK CR 65, 561 P.2d 539; Cox v. State, 1976 OK CR 156, 551 P.2d 1125; Spriggs v. State, 1973 OK CR 275, 511 P.2d 1139; Doyle v. State, 1973 OK CR 282, 511 P.2d 1133.

Another common issue that arises with drug possession cases revolves around whether the person accused of possession of drugs actually had to be in physical possession of the drug in to be convicted. Oklahoma law recognizes both actual possession or constructive possession of drugs as being sufficient to convict someone of drug possession. Oklahoma law also recognizes that an individual can be in joint possession of drugs with another person.

It should be noted however, that the government must have some evidence other than the mere proximate of a banned substance in order to establish possession of that substance. The law requires additional evidence of the defendant’s knowledge and control of the drug to convict a defendant of possession of that drug. While the state can use circumstantial evidence to establish knowledge and control over that substance there must be some evidence. Ultimately whether there are sufficient facts to establish knowledge or control will be a question of fact for a jury. The law on what constitutes drug possession is defined by OUJI-CR-6-11:

DRUG OFFENSES - DRUG POSSESSION DEFINED

The law recognizes two kinds of possession, actual possession and constructive possession.
A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it.
A person who, although not in actual possession, knowingly has the power and the intention at a given time to exercise dominion or control over a thing, is then in constructive possession of it.
The possession prohibited by the law is not only that of actual physical custody of a controlled dangerous substance but also the constructive possession of it.
[The law recognizes that possession may be sole or joint. In other words, possession need not be exclusive. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, their possession is joint. A person may be deemed to be in joint possession of a controlled dangerous substance which is in the physical custody of an associate if he/she willfully and knowingly shares with that other person the right to control the disposition or use of such substance.]
However, mere proximity to a substance is insufficient proof of possession. There must be additional evidence of the defendant's knowledge and control. Such knowledge and control may be established by circumstantial evidence. Each fact necessary to prove the guilt of the defendant must be established by the evidence beyond a reasonable doubt. All of the facts and circumstances, taken together, must establish to your satisfaction the defendant's knowledge and control beyond a reasonable doubt.
If you find from the evidence beyond a reasonable doubt that the defendant, either alone or jointly with another, had constructive possession of [Specify Controlled Dangerous Substance] then you may find that such substance was in the possession of the defendant within the meaning of the word "possession" as used in these instructions.

DISTRIBUTION AND POSSESSION WITH INTENT TO DISTRIBUTE

Title 63 O.S. Section 2-401 is the statute covers distribution of a controlled dangerous substance or possession with intent to distribute of a controlled dangerous substance offense. Section 2-401 is even more confusing than Section 2-402. The law makes no distinction between a defendant that posses a substance with intent to distribute it and a defendant that actually distributes the controlled dangerous substance.

Distribution/Possession with Intent to Distribute Schedule I or Schedule II Narcotic, LSD or Ecstasy.

By statute if the individual is convicted of distributing or possessing with intent to distribute a Schedule I or Schedule II substance that is classified as a narcotic, LSD, or Ecstasy face from 5 years to life in prison and a fine of not more than $100,000. This is the most severe category of drugs under this statute. Section 2-401 (B)(1) reads as follows:

A substance classified in Schedule I or II which is a narcotic drug, lysergic acid diethylamide (LSD), gamma butyrolactone, gamma hydroxyvalerate, gamma valerolactone, 1,4 butanediol, or gamma-hydroxybutyric acid as defined in Sections 2-204 and 2-208 of this title, upon conviction, shall be guilty of a felony and shall be sentenced to a term of imprisonment for not less than five (5) years nor more than life and a fine of not more than One Hundred Thousand Dollars ($100,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment. Any sentence to the custody of the Department of Corrections shall not be subject to statutory provisions for suspended sentences, deferred sentences, or probation except when the conviction is for a first offense;

Section 2-401 (B)(1) also carries with it a prohibition against probation, suspended or deferred sentences except when the conviction is a first offense.

Distribution/Possession with Intent to Distribute Schedule I, Schedule II, Schedule III or Schedule IV Substance

Section 2-401 (B)(2) is a catch all provision that includes distribution or possession with intent to distribute all substances in schedules I - IV that is not included in Section 2-401 (B)(1). The most common drug that is included in this subsection is marijuana. Under this provision of the statute the the punishment range is from 2 years to life and up to a $20,000 fine. Section 2-401 (B)(2) reads as follows:

Any other controlled dangerous substance classified in Schedule I, II, III, or IV, upon conviction, shall be guilty of a felony and shall be sentenced to a term of imprisonment for not less than two (2) years nor more than life and a fine of not more than Twenty Thousand Dollars ($20,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment.

Any sentence to the custody of the Department of Corrections shall not be subject to statutory provisions for suspended sentences, deferred sentences, or probation except when the conviction is for a first offense;

Section 2-401 (B)(2) also carries with it the prohibition against probation, suspended or deferred sentences except when the conviction is a first offense.

Distribution/Possession with Intent to Distribute Schedule Schedule V Substance

Section 2-401 (B)(3) establishes the punishment range for distribution or possession with intent to distribute for Schedule V substances. The most common substances included in Schedule 5 is codeine. Under this provision of the statute the punishment range is not to exceed 5 years and a $1,000 fine. Section 2-401 (B)(3) reads as follows:

A substance classified in Schedule V, upon conviction, shall be guilty of a felony and shall be sentenced to a term of imprisonment for not more than five (5) years and a fine of not more than One Thousand Dollars ($1,000.00), which shall be in addition to other punishment provided by law and shall not be imposed in lieu of other punishment; or

Distribution/Possession with Intent to Distribute Imitation Controlled Substances

Section 2-401 (B)(4) makes it a misdemeanor to distribute or possess with intent to distribute an imitation controlled dangerous substance. The punishment range for this offense is not more than a year in jail and a $1,000 fine for a first offense and for a second and subsequent offense it is a felony with a punishment not to exceed 5 years in prison and a $5,000 fine.

Enhancement Provisions of Possession with Intent to Distribute Charges

There are several enhancement provisions associated with distribution and possession with intent to distribute offenses. These provisions are the standard enhancement found under the Habitual Offender provisions, the use of an individual under the age of 18, and Distribution and Possession with Intent to Distribute that occurs within 2,000 feet of a school or park.

Habitual Offender Enhancement Provisions

Second and Subsequent convictions of section 2-401 (except for paragraph 4 of subsection B) are subject to the habitual provisions of section 51.1 of Title 21 which reads as follows:

Except as otherwise provided in the Elderly and Incapacitated Victim's Protection Program and Section 3 of this act, every person who, having been convicted of any offense punishable by imprisonment in the State Penitentiary, commits any crime after such conviction, within ten (10) years of the date following the completion of the execution of the sentence, and against whom the District Attorney seeks to enhance punishment pursuant to this section of law, is punishable therefor as follows:
1. If the offense for which the person is subsequently convicted is an offense enumerated in Section 571 of Title 57 of the Oklahoma Statutes and the offense is punishable by imprisonment in the State Penitentiary for a term exceeding five (5) years, such person is punishable by imprisonment in the State Penitentiary for a term in the range of ten (10) years to life imprisonment.
2. If the offense of which such person is subsequently convicted is such that upon a first conviction an offender would be punishable by imprisonment in the State Penitentiary for any term exceeding five (5) years, such person is punishable by imprisonment in the State Penitentiary for a term in the range of twice the minimum term for a first time offender to life imprisonment. If the subsequent felony offense does not carry a minimum sentence as a first time offender, such person is punishable by imprisonment in the State Penitentiary for a term in the range of two (2) years to life imprisonment.
3. If such subsequent offense is such that upon a first conviction the offender would be punishable by imprisonment in the State Penitentiary for five (5) years, or any less term, then the person convicted of such subsequent offense is punishable by imprisonment in the State Penitentiary for a term not exceeding ten (10) years.
4. If such subsequent conviction is for petit larceny, the person convicted of such subsequent offense is punishable by imprisonment in the State Penitentiary for a term not exceeding five (5) years.
B. Every person who, having been twice convicted of felony offenses, commits a subsequent felony offense which is an offense enumerated in Section 571 of Title 57 of the Oklahoma Statutes, within ten (10) years of the date following the completion of the execution of the sentence, and against whom the District Attorney seeks to enhance punishment pursuant to this section of law, is punishable by imprisonment in the State Penitentiary for a term in the range of twenty (20) years to life imprisonment. Felony offenses relied upon shall not have arisen out of the same transaction or occurrence or series of events closely related in time and location. Nothing in this section shall abrogate or affect the punishment by death in all crimes now or hereafter made punishable by death.
C. Every person who, having been twice convicted of felony offenses, commits a subsequent felony offense within ten (10) years of the date following the completion of the execution of the sentence, and against whom the District Attorney seeks to enhance punishment pursuant to this section of law, is punishable by imprisonment in the State Penitentiary for a term in the range of three times the minimum term for a first time offender to life imprisonment. If the subsequent felony offense does not carry a minimum sentence as a first time offender, the person is punishable by imprisonment in the State Penitentiary for a term in the range of four (4) years to life imprisonment. Felony offenses relied upon shall not have arisen out of the same transaction or occurrence or series of events closely related in time and location. Nothing in this section shall abrogate or affect the punishment by death in all crimes now or hereafter made punishable by death.

The habitual offender enhancement means that a someone convicted under Title 63 can have their sentence enhanced using non-drug Title 21 convictions.

Use of an Individual under of age of 18 Doubles Punishment

Title 63 OS Section 2-401 (E) provides that if an individual over the age of 18 uses an individual under the age of 18 to violate the provisions of Title 63 OS Section 2-401 the punishment provisions double.

Within 2,000 Feet of a School or a Park

For first offense requires the defendant to serve 50% of the sentence before they become eligible for state correctional institution earned credits toward the completion of the sentence.

For second or subsequent offense the individual is subject to the provisions of the Habitual Offender section of 51.1 of Title 21 and will be required to serve 85% of the sentence before they become eligible for state correctional institution earned credits toward the completion of the sentence.

To enhance the punishment using the 2,000 feet of a school or park aggravator the state is not required to prove that the defendant knew that a school was within 2,000 feet of the location the drugs were distributed or intended to be distributed. See Coates v. State, 2006 OK CR 24, 137 P3d 682 (Okla.Cr. 2006)

The 50% enhancement means that your client can not even accumulate good time credits until they have served 50%. Typically a defendant begins earning 22 days of credit a month after pleading guilty before they are transferred from the county jail to DOC custody. If representing someone accused of possessing drugs with the intent to distribute within 2000 feet of a school or a park getting the charge amended to just simple possession with intent to distribute can save your client substantial amounts of time.

Manufacturing of Methamphetamine

For defendants charged with manufacturing methamphetamine the punishment range is from 7 years to Life and a fine of not less than $50,000. Title 63 OS Section 2-401 (G) (2). Despite the statutory requirement of a fine of $50,000 most defendants convicted of manufacturing are given standard felony fines.

For those defendant’s convicted of aggravated manufacturing of methamphetamine the punishment range is from 20 years to life and the defendant is required to serve 85% of the time. Aggravated manufacturing of methamphetamine is the manufacturing of 50 grams or more of methamphetamine. Title 63 OS Section 2-401 (G) (3).

Evidence of Possession with Intent to Distribute

To convict a defendant of possession with intent to distribute the government must prove that the defendant possessed the drugs with the intent to distribute them. Possession with intent to distribute differs from simple possession and even trafficking cases in that way. With simple possession the government is only required to prove that a defendant knowingly possessed a detectable quantity of a banned substance. And with trafficking case the government is only required to prove that a defendant knowingly possessed a certain quantity of a particular banned substance.

However, with a possession with intent to distribute case the government is required to prove beyond a reasonable doubt that the defendant intended to distribute the substance that he or she possessed. That means that a partial defense to a possession with intent to distribute case is simple possession. See Jones v. State, 772 P2d 922, 926 (Okl.Cr. 1989), Billey v. State, 800 P2d 741 (Okla.Cr. 1990).

Title 63 O.S. Section 2-415--Trafficking

Oklahoma’s trafficking in controlled substances law is found at Title 63 O.S. Section 2-415. The trafficking statute in Oklahoma is one of the most draconian criminal statutes that Oklahoma has.
The trafficking statute is similar to the possession statute in the sense that all the state is required to prove is that an individual knowingly possessed a controlled dangerous substance. The only difference between what the state is required to prove with the trafficking statute and the simple possession statute is with the trafficking statute requires the state to prove the possession of a particular quantity of the banned substance. If the state can prove that your client knowingly possessed the required quantity of the banned substance it is not a defense that your client did not intend to distribute it.
The amount of substance the state is required to prove to meet the trafficking quantity depends on the substance the individual possess. In Oklahoma the threshold amount to be convicted of trafficking in cocaine base is 5 grams. (A sugar packet equals 1 gram) However, to be convicted of trafficking in cocaine the state must prove the individual possessed 28 grams.
For those with no prior drug convictions who are convicted of trafficking offenses the statute establishes a punishment range of twice the term of imprisonment for possessing that substance with intent to distribute it.

For those who have one prior drug conviction who are convicted of trafficking offenses the statute establishes a punishment range of triple the term of imprisonment for possessing that substance with intent to distribute it.

For those who have two prior drug convictions that are convicted of trafficking the statute requires them to serve a sentence of LIFE WITHOUT THE POSSIBILITY OF PAROLE. By statute that is the only option. So an individual that has two prior convictions even for simple possession, that gets convicted of trafficking would receive a sentence of Life Without Parole.

In addition to the greater minimum sentence established by the trafficking statute those convicted of trafficking offenses do not receive earned credits towards the completion of their sentence as provided for under Title 57 O.S. Section 138 (H). Many defendants believe that this means that trafficking sentences are 85% offenses. A standard trafficking offense (non-aggravated) is not an 85% crime. The difference is that a defendant can parole from a non-aggravated trafficking offense after serving 1/3 of the sentence. However, if a defendant fails to make parole he or she will serve almost 100% of the time they are sentenced to.

For defendants convicted of aggravated trafficking the minimum sentence is 15 years and they are required to serve 85% of the time before being considered for parole.

Driving Consequences to a Drug Conviction

In addition to the criminal penalties associated with a conviction of possession of drugs a defendant who holds an Oklahoma driver’s license also faces the prospect of losing their driver’s license for a period of 1 year. (See Title 47 O.S. Section 6-205 (A)(6).)

FIGHTING DRUG CHARGES

Depending on the evidence of a particular case there may be factual defenses to drug offense. Factual defenses to a drug charge almost always come down to the issue of whether the defendant “knowingly” possessed a banned substance. If drugs are found in a vehicle with multiple passengers there may be an issue regarding who the drugs belonged to. This issue can also arise if the defendant is driving somebody else’s vehicle or lives in a house with multiple people.

If a defendant is charged with possession with intent to distribute the “intent to distribute” element can be a hotly contested issue. Did the defendant possess the drugs for personal use or did they possess the drugs with the intent to distribute. With an intent to distribute charge evidence concerning the packaging of the drugs, large quantities of unexplained cash and drug notations can be important to evidence.

However, when defending a drug charge most often the defense will revolve around search and seizure issues. Without going into great detail regarding the Fourth Amendment there are some issues that I want to touch upon regarding Search and Seizure as it relates to drug offenses.

FRANKS v DELAWARE, 438 US 154, 98 S.Ct, 2674 (1978)

When challenging a search warrant the defense lawyer is restricted to “the four corners” of the search warrant except in circumstances where the defense lawyer can demonstrate that the affiant of the search warrant made statements that were either knowingly false or that were made in reckless disregard for the truth.

Pursuant to Franks, where a defendant makes a substantial preliminary showing that a false statement "knowingly and intentionally," or "with reckless disregard for the truth," was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. Franks at 155-156. If, at that hearing, the allegation of false statements or reckless disregard "is established by the defendant by a preponderance of the evidence, and, with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided and the fruits of the search excluded to the same extent as if probable cause was lacking on the face of the affidavit." Franks at 156.

In my opinion Franks is the most important case available for a lawyer that is attempting to challenge a search based upon a search warrant. Challenging a search based upon a search warrant is very difficult. Even if the affidavit used to gain the search warrant is found to be insufficient to establish probable cause the search is still going to be ruled valid if the officers conducting the search is found to be acting in “good faith”. (See US v. Leon, 468 U.S. 897 (1984)) (In State v. Sittingdown, 240 P.3d 714 (Ok.Cr.2010) the Oklahoma Court of Criminal Appeals adopted the “Good Faith Exception” for Oklahoma cases.)

What makes Franks so powerful is that the “good faith” exception does not apply to a search if the lawyer can establish by a preponderance of evidence that statements made in the affidavit are false.
Another thing to keep in mind is that omission of facts material to a magistrate's determination of probable cause constitutes a misrepresentation or a misstatement because it interferes with the ability of the magistrate to consider the "totality of circumstances," as required by Illinois v. Gates, 462 U.S. 213 (1983). The 10th Circuit described this concept in the case of Stewart v. Donges 915 F.2d 572, 582 -583 (10th Cir. 1990), as follows:

Prior to the time of plaintiff's arrest in this case, the Tenth Circuit had not addressed whether the standards of Franks governed omissions as well as affirmative misstatements. However, several of the other circuits had indicated that the “deliberate falsehood” and “reckless disregard” standards of Franks applied to material omissions, as well as affirmative falsehoods… (citations omitted). Therefore, we hold that at the time defendant submitted his affidavit and arrested plaintiff, it was a clearly established violation of plaintiff's Fourth and Fourteenth Amendment rights to knowingly or recklessly omit from an arrest affidavit information which, if included, would have vitiated probable cause.

Whenever dealing with a case involving a search warrant I always get the affidavit and closely review the affidavit for any statements that I can prove are false or are otherwise misrepresentations. Proving that an officer made statements that were false in a search warrant affidavit is not easy, but it does happen.

Warrantless Searches

Fourth Amendment Law is very complicated and I do not intend on covering every issue that may arise as it regards to search and seizure without a warrant. However, I do want to highlight some common issues that come up from time to time.

Probable Cause Must be Individualized to the Person Being Searched

Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) “...a person's mere propinquity to others individually suspected of criminal activity" or his "presence on premises lawfully being search, "does not, without more, give rise to probable cause to search that person.". "Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person happens to be. The Fourth and Fourteenth Amendments protects the legitimate expectation of privacy of persons, not places." Ybarra, 444 U.S. at 91.
Under the principles of Ybarra just because the officers have a search warrant does not mean they are entitled to search everyone present at the location the search warrant is served.

Officers are Prohibited from even Frisking for Weapons without Reasonable Suspicion
The Supreme Court noted in both Ybarra and Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), that officers cannot conduct even a Terry-type "frisk" or "pat-down" "unless the officers had individualized suspicion" that said individual "might be armed and dangerous." "The 'narrow scope' of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place." Ybarra, 444 U.S. at 94.

Officers may not enter a suspects home to make an arrest without a search warrant or exigent circumstances

Payton v. New York, 445 U.S. 573, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); U.S. v. Morgan, 743 F.2d 1158 (6th Cir. 1984) [that encircling a home, flooding it with search light and coercing occupants out with a bullhorn amounted to a warrantless entry]; U.S. v. Maez, 872 F.2d 1444 (10th Cir. 1989) [where police surround home and order defendant to come out same vitiates consent given and taints statements given]; U.S. v. Edmondson, 791 F.2d 1512 (1986);

A defendant must be halted before a defendant is seized

California v. Hodari, 499 U.S. 621, 111 S. Ct. 1547, 113 L.Ed.2d 690 (1991), held that a defendant who flees at the sight of a police officer chasing him and commanding him to stop is not seized before the defendant's flight has been halted. This situation comes up a surprising amount of time. An officer attempts to stop a person they suspect of drug activity and the person flees. A fleeing suspect has not been seized for Fourth Amendment purposes.

Nervousness during police contact does not establish probable cause

Often times officers will stop individuals and during the stop either attempt to generate probable cause to search or attempt to justify a search after it has taken place. A common justification is that the individual that was stopped appeared to be nervous. Reid v. Georgia, 448 U.S. 438, 100 S.Ct. 2752, 65 L.Ed.2d 890, 894 (1980) ["according to the agent's testimony, the men appeared nervous during the encounter"];

No reasonable expectation of privacy in one’s garbage

One may expect no privacy in garbage placed in opaque containers curbside, since this is an area open to, and commonly available for inspection by animals, kids, scavengers, snoops, or the trash collector. Furthermore, evidence discovered there may comprise probable cause to search the abode from which the garbage came. California v. Greenwood, 486 U.S. 35, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988).

Disclaimer: Kevin D. Adams only provides legal advice after having entered into an attorney client relationship, which this website specifically does not create. Only after having entered into a representation agreement with Kevin D. Adams will an attorney-client relationship have been created. It is imperative that any action taken by you should be done on advice of legal counsel.* Because every case is different, the descriptions of outcomes and cases previously handled are not meant to be a guarantee of success.

Tulsa Criminal Defense Lawyer: Kevin D. Adams