How to Win Drug And Gun Cases Part 1: Put the Police on Trial

In this episode, Attorney Cowan talks about how to win drug and gun cases by putting the police on trial in a motion to suppress.

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I think reasonable people can differ about what sort of criminal justice system we should have, what sort of prison system we should have, but one thing that I think very clear is that, if we’re going to have a system of laws, and if we’re going to punish people for not following those laws, then by gum, the people in charge of enforcing those laws ought to follow the laws about their behavior. In drug and gun cases, these are the very few cases where we can hold the police accountable, and get a judge to impose some actual consequences in the form of dismissing a case where the police didn’t follow the rules.

Hi, I’m Andy Cowan. I’m a criminal defense lawyer based in Cambridge Massachusetts, and today we’re going to be talking about how to defend a drug case in Massachusetts. This is something that I do a lot, and it applies to gun cases as well. Basically any time that you’re charged with possessing something illegal that the police found on your person, in your car, or that’s being otherwise attributed to you in some way. Most commonly this is drugs and guns.

Often people come to me with these cases thinking that they have no defense, they’ll say, “I was caught red-handed. The drugs were in my pocket. They were in the glovebox of my car. I have no defense, but I can’t plead, because there’s a mandatory jail sentence. What do I do?” What people don’t know is that there usually is a defense. I’ve spent a lot of my career focusing on this question of how to defend a drug case. And how to defend drug cases when somebody really is caught with the substance in their possession.

The first step is always to put the police on trial. This is what I love about drug and gun possession cases. You get to file a motion called a motion to suppress. And in that motion we have a little mini trial, that’s not about whether you’re guilty or not guilty of possession, or distribution, or trafficking, or whatever you’re charged with, instead what we’re trying in the motion to suppress is the question of whether the police are guilty or not guilty of violating your constitutional rights. And if the judge agrees with us that the police violated your constitutional rights, then anything they found as a result is suppressed or thrown out of the case.

There’s a number of different issues you can raise in a motion to suppress. Did the police have a constitutionally adequate bases to stop you? Did they have a valid basis to search your car? Tow your car? Bring a dog to sniff your car? Any time that the police do something that either stops you from moving freely about your life, or that searches you, or searches one of your possessions, or searches an area that you’re associated with, that is what we call a constitutional moment where the police have to be able to justify why they did what they did. And if they can’t, you win.

So for example, I had a case back in 2010 where the police officer claimed that the reason he was allowed to remove my client from a car by the side of the road after stopping him for speeding, was that he saw a little baggie of marijuana sticking out of the client’s pant’s pocket. But I spent an hour asking that officer questions. What type of car was it? How tall was this car? How tall are you? Where was your eye-level on the driver of this car? What was the weather like? What was the lighting like? And by the time we were done it was very clear to everybody in the room that this officer could only have seen what he claims to have seen, if he had x-ray vision. That case ended with the judge saying, “Officer, I don’t believe you.” And she suppressed the heroin that my client was charged with trafficking in, because she couldn’t believe the police officer about why he’d stopped and searched the guy.

That is a very clear message from the court to the people, to say, “Look, we have these crimes where, you didn’t actually hurt anybody, you just did something that society has said should be illegal. But the way the police caught you, that was illegal too. So we’re gonna call it a wash. We’re gonna throw out the charges, and everybody goes home.” And I love being able to get that king of justice for my clients.

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