Drug Possession

Probable cause is when there is enough factual information to allow a reasonable person to believe that a search would uncover evidence of a crime (Walker v. State, 255 Ind. 65, 262 N.E.2d 641).

In some circumstances, an officer may ask permission to search a home, vehicle, or person and the individual may give their consent. This consensual search is only valid if the individual is not under duress, fear, fraud, intimidation, or merely submitting to the supremacy of the law (Kubsch v. State, 784 N.E.2d 905 (Ind. 2003); Nowling v. State, 955 N.E.2d 854 (Ind. Ct. App. 2011); State v. Seidl, 939 N.E.2d 679 (Ind. Ct. App. 2010); Temperly v. State, 933 N.E.2d 558 (Ind. Ct. App. 2010)). The voluntariness of the individuals consent will be in question until it is proven that the consent was entirely voluntary. Voluntariness is based on whether or not the individual was read their Miranda rights, the education and intelligence of the individual, previous encounters with law enforcement, whether the individual was advised of their right not to consent, whether the officer implied that he could search without consent, whether the officer was acting legally, whether the individual was cooperative previous to the search request, and whether the officer was being deceptive in any way (U.S.C.A. Const.Amend. 4; West’s A.I.C. Const. Art. 1, § 11. Bulthuis v. State, 17 N.E.3d 378 (Ind. Ct. App. 2014).

Exigent circumstances occur when it is impractical for an officer to obtain a warrant. This basically means that getting a search warrant would take too much time and put some other aspect of the situation in jeopardy. For example, if an officer has a reasonable belief that evidence is about to be destroyed or removed, he has exigent circumstances to conduct a warrantless search. In the case of a car accident, a blood sample to test the blood alcohol content of an individual involved may be considered evidence. It is also considered an exigent circumstance in this situation, because waiting for a warrant would mean that the blood alcohol content will have declined and the evidence would be lost. However, in cases not involving an automobile accident, a blood sample is not an exigent circumstance (Justice v. State, 552 N.E.2d 844 (Ind. Ct. App. 1990)). Another exigent circumstance occurs when someone needs help. An officer has no obligation to acquire a warrant to enter a premises where someone needs medical attention (Vitek v. State, 750 N.E.2d 346 (Ind. 2001)). The same goes for preventing further injury. If the officer is responding to a domestic violence call and he hears yelling and crying, exigent circumstances would allow him to enter the home to prevent further injury to the victim. Similarly, if an officer were to arrive on the scene of a homicide, he would have the right to conduct a warrantless search of the area to check for other victims and to see if the killer was still present (LaMunion v. State, 740 N.E.2d 576 (Ind. Ct. App. 2000)).

The last two primary types of exigent circumstances include hot pursuit or movable vehicles (Greer v. State, 253 Ind. 609, 255 N.E.2d 919 (1970); Sapen v. State, 869 N.E.2d 1273 (Ind. Ct. App. 2007); State v. Straub, 749 N.E.2d 593 (Ind. Ct. App. 2001)), and circumstances in which the suspect is either fleeing or about to flee in order to avoid being arrested (Greer v. State, 253 Ind. 609, 255 N.E.2d 919 (1970); Sapen v. State, 869 N.E.2d 1273 (Ind. Ct. App. 2007); State v. Straub, 749 N.E.2d 593 (Ind. Ct. App. 2001)). In these situations, a warrant is unnecessary because of the likelihood of the suspect to flee. A hot pursuit is typically a car chase; if the car chase ends at the suspect’s home, the police have exigent circumstances to enter the home and detain the suspect primarily because the hot pursuit was probable cause in and of itself. Exigent circumstances in relation to automobiles are similar. If an officer has probable cause to believe that a vehicle holds evidence of a crime, he may search it without a warrant. This is because the vehicle is readily movable, meaning that the evidence could disappear quickly if the officer does not take action (Edwards v. State, 762 N.E.2d 128 (Ind. Ct. App. 2002)). In all of these situations, there must be some proof or evidence that the circumstances required quick action to the extent that a warrant was out of the question. The police officers statement of subjective belief of exigent circumstances is not enough (Joseph v. State, 975 N.E.2d 420 (Ind. Ct. App. 2012); Trotter v. State, 933 N.E.2d 572 (Ind. Ct. App. 2010)).

If you believe that you were wrongfully searched or arrested, call Alex Mendoza, criminal defense attorney, today.

When an officer is in a place that he is lawfully allowed to be and sees an object that is unlawful, he is legally able to seize the item (Haley v. State, 696 N.E.2d 98 (Ind. Ct. App. 1998)).
For example, if an officer is invited into a home for some other purpose and he happens to see some sort of contraband or evidence, he is allowed to seize it without a warrant (Rook v. State, 679 N.E.2d 997 (Ind. Ct. App. 1997); Shultz v. State, 742 N.E.2d 961 (Ind. Ct. App. 2001)).

If reasonable circumstances lead an officer to see, without much effort, an item of contraband or evidence through, for example, a window, he is legally able to apprehend it. If a person leaves the object in such open view that it can be seen from a lawful vantage point, they are forfeiting their reasonable expectation of privacy (Shultz v. State, 742 N.E.2d 961 (Ind. Ct. App. 2001)). With no reasonable expectation of privacy, there can be no violation of the Fourth Amendment (as discussed above).

For example, if an officer is responding to a call from a neighbor about a drug operation and he sees marijuana plants being grown in the window, he is legally able to seize the plants as evidence because they are in open view.

If an officer is making a lawful arrest, he is legally able to conduct a warrantless search of a person or an automobile in order to ensure his own safety and the safety of others. The scope of the search is limited to either items that could be a danger to the officer or evidence that can be concealed or destroyed. The officer can only search areas that are within the immediate control of the person being arrested (Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485, 47 A.L.R. Fed. 2d 657 (2009)). This exception is also relevant in cases of questioning (Jones v. State, 472 N.E.2d 1255 (Ind. 1985); Townsend v. State, 460 N.E.2d 139 (Ind. 1984); Williams v. State, 271 Ind. 656, 395 N.E.2d 239 (1979)). However, the officer must be able to justify this search and give facts as to why he believed the individual to be armed and dangerous ((N.W. v. State, 834 N.E.2d 159 (Ind. Ct. App. 2005)).

If you are being charged with drug possession based on an illegal search, call Alex Mendoza, criminal defense attorney, to set up a consultation today.

If for any reason a vehicle is being impounded, an officer is legally able to do an inventory search of the vehicle. This is considered a routine search, as its primary purpose is to prevent any items from being lost or stolen while the vehicle is impounded This is for the benefit of the owner of the vehicle as well as the police department ( South Dakota v. Opperman, 428 U.S. 364, 369, 96 S.Ct. 3092, 3097, 49 L.Ed.2d 1000, 1005 (1976)). The officer is even legally allowed to open containers, envelopes, and locked boxes during an inventory as long as it is standard protocol in his department (McCoy v. State, 241 Ind. 104, 115, 170 N.E.2d 43, 48 (1960); Montague v. State, 266 Ind. 51, 55, 360 N.E.2d 181, 185 (1977); Colorado v. Bertine, 479 U.S. 367, 369–70, 107 S.Ct. 738, 740, 93 L.Ed.2d 739, 744 (1987); Abran v. State, 825 N.E.2d 384, 391 (Ind. Ct. App. 2005)). However, the officer’s intention must be to take inventory. If at any time the officer states or makes it known that his intention was to search for drug contraband or evidence of a crime, he is admitting that the search was not an inventory and was therefore unlawful.

Another valid defense for drug possession could be entrapment. Entrapment is when an officer or an agent of an officer persuades you to do something that you would not normally do. However, persuasion is different than affording you an opportunity, and affording an opportunity is not against the law (IC 35-41-3-9). If you believe you were the victim of entrapment, call criminal defense attorney Alex Mendoza to set up a consultation.

Indiana Statute (I.C. 35-48-4-4.1) states that dumping waste from manufacture of a controlled substance is a Level 6 Felony. This is the penalty whether or not the person dumping the waste manufactured it.

Possession of more than ten grams (10g) of ephedrine, pseudoephedrine, or phenylpropanolamine is a Level 6 Felony. It becomes a Level 5 Felony if done so while in possession of a firearm or within 500 feet of a school or public park.

Possession of anhydrous ammonia or ammonia solution with intent to manufacture methamphetamine is a Level 6 Felony. It becomes a Level 5 Felony if the person also possesses a firearm or is within 500 feet or a school or public park.

I.C. 35-48-4-14.5 lists 39 different chemical reagents or precursors. The possession of any two of them at the same time with the intent to manufacture a controlled substance is a Level 6 Felony. It becomes a Level 5 Felony if the person also possessed a firearm or was within 500 feet of a school or public park.

A person who sells or distributes any of the chemical reagents or precursors to someone else, knowing they have the intention of making a controlled substance, commits a Level 6 Felony. However, this is a Level 5 Felony if it is more than ten grams (10g) or ephedrine, pseudoephedrine, or phenylpropanolamine.

If you or someone you know has been accused of possession of two or more of these precursors, call criminal defense attorney Alex Mendoza for a consultation.