Despite recent controversy and state level changes in drug laws, the war on drugs is still raging on. Penalties for drug charges come with mandatory minimums, and can even surpass penalties for other, more violent crimes. There is also increased tension between the community and law enforcement, so arrests and police encounters involving drugs can get out of hand quickly. Both parties are subject to acting out in such high-pressure situations, but it is especially unnerving when it comes from trained law enforcement officials.
What’s perhaps even worse, though, is hearing stories about police officers who bend and even break the laws that protect us to make arrests. Sadly, this type of situation is not unheard of around Chicago.
Sniffing Out Bad Testimony
Stephon Mack was facing some pretty moderate charges last February: he stood trial for possessing weapons without the proper state firearms card. However, Mack is viewed as a dangerous gang member by local law enforcement.
On the night of his arrest in August 2015, Mack and was stopped by law enforcement after passing by them in his Jeep Cherokee. Officers pulled him over after they noticed the car did not have a front license plate and Mack was not wearing a seat belt.
That’s a completely legal and fair reason to pull someone over. But here is where things get tricky.
After Mack had already exited the vehicle, the officers searched his car – without his consent. One of the officers involved in the case, Damen Balesteri, testified that he smelled marijuana coming from the car.
During their search, they found a handgun and 26 bullets, and also found about seven grams of fresh marijuana. To be clear, the marijuana was fresh, it was a small amount, and it wasn’t lit.
So how could Balesteri have smelled the marijuana as Mack’s car passed by?
That’s what Judge Steven Watkins may have been asking himself during Mack’s trial. The policemen did not have drug-sniffing police canines by their side when they pulled Mack over. If Balesteri could have smelled seven grams worth of marijuana as a car whizzed by, it would be a “Cirque du Soleil olfactory feat,” according to Mack’s lawyer, Stuart Goldberg.
Watkins agreed. He threw out the gun as evidence and discredited Balesteri’s testimony. With no gun to use as evidence in a gun crimes case, the prosecution dropped the charges against Mack.
If You Have Been Charged with Drug Crimes
Stephon Mack’s case is important to know not just because the police officer told a tall tale about his sniffing skills, but also because Mack’s car was searched without consent. Police officers may have testified that they had reasonable suspicion that Mack was carrying drugs, but Mack, as well as every citizen, has the right to refuse a search. It’s just one of the rights that everyone has when talking to police officers.
A violation of the Fourth Amendment (the right to due process and lawful search and seizure before an arrest) is a common defense used in drug possession cases. Until you are arrested, an officer has no right to search your person or property without your consent or the proper warrant. This goes for traffic stops, confrontations in the street, or if the police come to your door.
If you were charged with drug possession because police found something within plain sight (on your dashboard, you are caught consuming drugs, etc.), illegal search and seizure would not be an effective defense strategy. Instead, the following might be more appropriate to use:
- The drugs you were caught with belonged to someone else/you did not have any knowledge of their presence in your car, home, and so on.
- The substances you were caught with are not controlled substances that are prohibited by law. (For example, you were caught with lawful pills that were mistaken for illegal drugs.)
- The drugs that were seized were misplaced or mishandled and cannot be produced as evidence in the courtroom.
- The drugs were planted by law enforcement officials or a third party.
- Law enforcement coerced or induced you to hold the drugs in your possession (entrapment).
- You obtained marijuana lawfully with a medical marijuana prescription (this defense can be used at the federal level currently, and in Chicago, medical marijuana may become legal in the near future).
You have the right to due process of law, as well as the right to speak with an attorney throughout the criminal justice process. Whether you have been charged with drug crimes or may face charges, reach out to us.
About the Author:
Andrew M. Weisberg is a former felony prosecutor who now serves as a defense attorney in the greater Chicago area. He has extensive experience in handling all types of criminal cases, from sex offenses and domestic violence to retail theft-related crimes, Murder, and drug crimes.