John went out for a fun night with friends at a club. John and his friends had all been drinking so when they walked outside, fully intending to be responsible by taking a cab home, a police officer follows assuming John will get into his own car to drive. As John is walking, he stumbles, and the officer says “Come over here.” John complies. The officer pats John down ‘for his safety’ and feels something small in his jacket pocket. The officer takes the item out to determine what it is and finds a single pill. John is arrested for possession of an illegal substance.
To prove the crime of possession of an illegal substance, the state has to prove that the item was an illegal drug, the presence of the illegal drug was known, and that control or ownership over the illegal drug was exercised.
If the item is an illegal substance, proving that element is simple for the state. At trial, the state will call an employee of the crime laboratory who will be an expert in drug analysis. However, sometimes the item is not what the police think it is when they first arrest you. Some over-the-counter pills can look very similar to illegal drugs while certain herbs can look very similar to marijuana.
The drug analyst will easily correct this mistake prior to trial, but carrying any substance in the container in which it was bought can avoid this costly confusion. Carrying prescription medications in their prescription bottle is particularly important as a valid doctor’s prescription transforms the nature of the item from illegal to legal, and therefore will save the hassle and expense of defending an arrest.
Proving knowledge of the presence of the illegal substance can sometimes be difficult for the state. What if John borrowed the jacket from a friend that evening? If the illegal substance is one small pill that was stuck in the crevice of the jacket pocket, the argument that he did not even know the pill existed can be made.
What if John noticed the pill when he put the jacket on but assumed it was a Tylenol since he would never suspect the friend he borrowed the jacket from to be carrying an illegal substance? This argument is even more powerful when the illicit item is residue from cannabis. How would you know that the now empty plastic baggie in the jacket you borrowed from a friend once contained cannabis, the residue of which is barely noticeable on the inside of the empty baggie? Knowledge of the illicit nature of the item, like every element of the offense, must be proved by the state beyond a reasonable doubt.
Control or ownership of the illegal drug is generally proved by showing the proximity of the item to the accused. If the drug is found in the jacket pocket of the accused, he would be presumed to be in control of the item. However, what if John had just borrowed the jacket from a friend as he was leaving the club because it was colder outside than he anticipated? What if the friend had slipped the item into the jacket pocket right before John asked to borrow it? John may not have had any control over the item even though it was in his own pocket.
There are several other issues with the officer’s actions in the above scenario. First, this officer had no reasonable suspicion to begin the encounter. Though an officer can approach anyone and request to voluntarily speak to them, here the officer did not make a request; he instead made a demand when he stated “Come over here.” In order for the officer to make such a demand, he is required to have reasonable suspicion of illegal activity.
Since John did not get into a car or even have car keys in his hand, there was no reasonable suspicion that a DUI (or any other crime) was about to occur. Without that, the officer’s command turned the encounter into an unlawful seizure. Additionally, because the encounter was an unlawful seizure, the pat down was unlawful and any evidence obtained is suppressible as fruit of the poisonous tree.
Even if the officer had instead requested to speak to John and even if John had voluntarily consented to the officer performing a pat down, the officer still did not have any justification for pulling the item out of his pocket. An officer can only remove an item he finds during a lawful pat down if that item is readily recognizable as a dangerous or illegal substance. In our scenario, the officer merely felt something small in John’s jacket pocket. Therefore, removing the item to figure out what it was, constitutes an illegal search and the state would be prevented from later submitting into evidence any items found during that illegal search.
The scenario above could quickly land an innocent person in jail. If you have been accused of possession of an illegal substance, make sure you immediately contact an experienced and knowledgeable advocate who understands Texas drug laws and who will examine what occurred in order to determine whether the conduct of the officer was lawful or whether the ‘evidence’ obtained may be suppressed.