Defending Drug Cases that Involve Illegal Police Activity
When an individual has been stopped by a police officer, they may seek to keep any evidence that is found as a result of the stop, from being used against them. For example, consider if a person is stopped without reason and then taken out of his car and searched. During the search, drugs are found on the person. This search would be illegal and the evidence from this search, the drugs, would not be allowed to be used in court against the person.
It is a common strategy in the defense of drug cases, for individuals to try to keep evidence from being used against them by arguing that the police unlawfully obtained the evidence. This issue recently arose in an Oregon drug case where a passenger in a vehicle believed that the police had unlawfully searched her. In that case, the passenger in the vehicle claimed that she had been unlawfully stopped and seized by the police officer. As a result of the unlawful seizure, she argued that the drugs, which were found on her, should not have been used against her in her criminal drug case.
Suppressing Drug Evidence Obtained as a Result of Unlawful Police Activity
Attempts to keep evidence out of court, called suppression motions, can substantially alter the posture of a case. These types of motions raise numerous questions, but one of the reoccurring questions is this: was the defendant arrested?
Determining Whether the Defendant Was Arrested/Seized
One of the key issues in suppression motions is whether the defendant was arrested. If the defendant was, then he or she is entitled to certain Constitutional protections known as Miranda rights. If he or she is not arrested, then those Constitutional protections do not go into effect.
In Oregon, during a routine traffic stop, the driver of the vehicle is considered to be seized when he pulls over. Unfortunately, this same rule does not apply to the passenger. Under Oregon law, the passenger is not considered to have been “seized” even if the passenger is asked by the police officer to exit the vehicle and is asked incriminating questions.
But there are situations where a Court would find that the passenger was seized. As an example, the court may find that a passenger has been seized if the officer draws a weapon, under a show of authority, to physically detain the passenger. Another example is if the officer states to the individual that he or she is not free to leave. Ultimately, what the Court considers is whether, under the totality of the circumstances, a reasonable person would have felt free to leave. Alternatively, the Court may find a “seizure” under Oregon law if the Court believes that the police officer intended to significantly restrict or deprive the person of his freedom of movement.
In making suppression arguments to the court about illegal police activity, it is important to utilize the skills of an experienced criminal defense attorney. It is essential that the facts of the case be presented in a way that is persuasively grounded in the law.
Mark Cogan understands drug defenses and the options that are available to individuals who have been subject to illegal police activity. To schedule your free consultation today, we invite you to call (503) 827-8092.
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