A motion to suppress evidence is often a criminal defense lawyer’s strongest tool as it is often difficult, if not impossible, to argue a lack of possession if the person, following an arrest, is found with the drugs.

Alfonso Gambone
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A Philadelphia criminal defense lawyer representing accused persons throughout Pennsylvania and New Jersey.

Recently our law firm successfully argued a motion to suppress evidence for a Philadelphia client charged with possession with the intent to deliver illegal narcotics (heroin). The arrest occurred in late November of last year and this individual, if convicted at trial, faced a substantial state prison sentence due to his prior record score (criminal history) and the offense gravity score for this incident given the amount drugs found on him at the time of the arrest.   Remember that not all drug offenses are the same and the gravity of offense is based on the weight of the drug in question and the defendant’s prior criminal convictions (adult and juvenile).

 

Motion To Suppress Evidence -Your Strongest Defense Argument?

 

As I’ve written in the past, a motion to suppress evidence is often a criminal defense lawyer’s strongest tool as it is often difficult, if not impossible, to argue a lack of either actual or constructive possession if the person, following an arrest, is found with the drugs. A motion to suppress evidence is based on Article I, Section 8 of the Pennsylvania Constitution and the Fourth and Fourteenth Amendment to the United States Constitution.

 

Pennsylvania courts are very clear that a police officer may stop an individual based on an observation of a single alleged drug transaction even if the officer can't identify the actual item in question. Police may initiate the stop provided that the Commonwealth can establish a nexus between the officers’ training, experience, and actual observation. It is very common for the officer to testify in court that he or she has made hundreds, if not thousands, of drug arrests and that this particular arrest occurred in what law enforcement would classify as a high crime area.

 

Single Transaction Drug Cases & Establishing the “Nexus”

 

There is a specific case in Pennsylvania which is helpful to the Commonwealth in these one transaction cases and that is the case of Commonwealth vs. Thompson. It is important to keep in mind that even if the Commonwealth relies on the Thompson case, your defense lawyer should look at whether the prosecution has adequately addressed the issue of establishing a nexus between the officer’s experience and this matter.

 

Even if the Commonwealth can establish this nexus which provides reasonable suspicion for this stop, this does not allow the police officer to simply arrest the suspect but only to initiate the stop. If the officer fails to conduct a search and moves simply towards arrest, it is very likely that the judge will rule that the evidence is inadmissible (can’t be used against the defendant.) Remember that reasonable suspicion is a lower form of probable cause and probable cause is required for an arrest.

 

When Can Police Seize An Item Following A Lawful Stop & Frisk

 

If police do initiate a lawful stop they may conduct a frisk but only seize an item if, based on the officers’ training, he or she believes the suspect is armed and dangerous. There is a case in Pennsylvania which specifically states that reasonable suspicion of drug possession alone does not provide adequate grounds for the officer to believe that the suspect in armed. In other words there is not a basis for a frisk simply because the officer believes that the suspect possesses drugs. If, however, the frisk reveals by touch an item that could either be a weapon or contraband the officer is permitted to seize it. Keep in mind that this type of scenario requires the Commonwealth to illicit very specific testimony from the police officer with regards to the stop, search, and arrest. Pennsylvania courts have specifically ruled that, for example, a hard cylinder type object cannot be a weapon and where the reason for the stop no longer exists any other action is illegal.

 

If you’re charged with the illegal possession of drugs or narcotics in Pennsylvania or New Jersey it is important that you discuss all of your pre-trial options with your lawyer to determine if there is a basis for a motion to suppress evidence. All motions to suppress evidence must be filed before trial and if your attorney fails to do so that right is waived.

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