Posted On: July 11, 2011 by Brian G. Thompson

CDS Possesion Case Successfully Defended

As an Aggressive Maryland Criminal Attorney, I represent people charged with violations of the controlled dangerous substance laws virtually every day in Maryland courts. I have blogged many times in the past about the importance of hiring an experienced full time criminal attorney if one finds him or herself charged in a criminal case. As I have noted in the past, I witness far too many instances in which accident or divorce lawyers represent (or should I say misrepresent) people in criminal cases and it usually doesn't work out very well for the person charged.

I had an a case today in Baltimore County Circuit Court that was an excellent example of a person realizing before it was too late that her attorney was not really qualified to represent her. This is unusual. More often than not, people don't figure it out until they suffer a very bad result. Here are the facts of the case.

My client was sitting in front of her home in her car arguing with her boyfriend. A Baltimore County Police Officer drove by and decided this situation warranted investigating. He turned his car around and parked behind my client's car. He did not utilize his emergency equipment and did not draw his weapon. Instead he simply walked up to the window of the vehicle to speak with the occupants. This is known as a "mere encounter" in legal parlance and does not require probable cause.

The officer noted in his report that at this point he smelled a strong odor of marijuana emanating from the vehicle. He asked the occupants to step out of the vehicle. He questioned them at which point the passenger admitted to smoking "weed" in the car but claimed not have done so that day. The officer then searched the vehicle and found a small amount of marijuana on the floor underneath the passenger seat. He then arrested both my client who was in the driver's seat and her boyfriend who was the passenger. He charged both with possession of marijuana,

My client, who had never been in trouble in the past, then went to see the only lawyer she knew; the lawyer who had handled her mother's accident case. They went to court at which point the lawyer appeared not to have much of a command on what was happening. He gave her conflicting advice to plead guilty because the weed "was found in (her) car" and then to pray a jury trial. Ultimately, she chose the latter option and decided she needed a second opinion. She came to see me the next day. After reviewing the facts of the case with her I quickly concluded that she had a very strong defense. I explained to her that since she didn't have any contraband on her and was therefore not in actual or physical possession of the marijuana, the judge would review the case utilizing a four factor test set out by the Court of Appeals to determine whether she was in "constructive possession" of the marijuana. Those factors are:

1. Does the defendant have an ownership interest in the property where the contraband was found?

2. Was the contraband in plain view?

3. Was the contraband in close proximity to the defendant?

4. Was there any evidence of actual use of enjoyment of the contraband?

I explained to her that it was my belief that the answers to all but question 1 were no and therefore I did not believe she could be convicted. She terminated the other attorney and retained my office. I appeared for her today in court and was told by the prosecutor, whom I knew very well, that she did intend to pursue the case. However, after I explained my defense and she realized she now had an opponent who not only knew the law but also one that has credibility with the judges in criminal cases, she decided to pick another battle. She dismissed the charges because she knew should would lose if she didn't.

This defendant was wise enough to realize that she was not being properly represented before it was too late and a big mistake occurred. I have represented many people over the years who did not. As I have written in the past, it is always easier to prevent a mess from happening than it is to clean it up once it has occurred.

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