Contraband proximity might convict says Fairfax criminal lawyer

Contraband items near a suspect might lead to a conviction, says Virginia criminal lawyer

Contraband items can come in the form of illegal drugs, illegal weapons, and a whole host of other illegal items. As a Fairfax criminal lawyer, I know that defenses against such prosecutions sometimes includes challenging the proximity of the defendant to the suspect items in terms of chronology, distance, quantity, and noticeability. Police and prosecutors often rely heavily on circumstantial evidence in such cases, as they successfully did in obtaining a conviction under Va. Code § 18.2-248 for cocaine possession with the intent to distribute against Michael Anthony Patton, Jr. Patton v. Commonwealth, Record No. 1494-19-2 (Va. App., July 7, 2020) (unpublished).

Marijuana odor continues to risk searches

Michael Patton’s downfall started with the police search of him and his car for contraband items on the basis of claiming smelling marijuana odor and subsequently finding cocaine as the contraband item in his case. Even with simple marijuana possession now a civil offense in Virginia after the July 1, 2020, legislative change, we still await (1) the courts stating whether that change no longer allows marijuana smell to constitute probable cause to search a person or his or her vehicle and (2) possible legislation as early as this August 2020’s special legislative session omitting marijuana odor from being a basis for such a search.

Cocaine is found near a handcuffed suspect

Police stopped Patton’s car for speeding. The police officer smelled marijuana in the car of Patton, who handed police a marijuana smoking device. Patton does not explain how that handover came about. Patton says that Patton was reluctant about spreading his legs for a police patdown for weapons or contraband items, which is a curious characterization, in that nobody would jump for joy for a patdown, and what behavior would constitute such reluctance in the first place?

After police found a hidden handgun in Patton’s vehicle (Patton denied knowing about it, and said the car was his mother’s), police handcuffed him: “Officer Pacifico continued to search appellant’s vehicle while Officer Burton stood with appellant between a trashcan and the rear of Pacifico’s police vehicle. Officer Burton heard a ‘thud from . . . the rubber trashcan at the side’ [within 9 inches of Patton].  Although he had been holding appellant by one elbow, Officer Burton did not recall [the handcuffed Patton] making ‘any weird movements’ before he heard the thud. Officer Burton immediately looked to the ground and saw two plastic bags'”, which turned out to be cocaine as this contraband item in this case. Patton. 

Proximity of contraband items to a suspect generally lets the fact finder decide whether the suspect was the possessor

Patton’s lawyer could argue until he was blue in the face that the contraband item / cocaine on the ground near Patton could have been left there long ago, thus creating reasonable doubt whether Patton possessed it. Nonetheless, at Patton’s bench trial, the judge convicted him of possession with intent to distribute cocaine. Patton affirms:

“Appellant contends that the [contraband item] evidence did not exclude the ‘very real possibility’ that the drugs were there prior to appellant being near the trashcan. However, ‘[t]he Commonwealth is not required to prove that there is no possibility that someone else may have planted, discarded, abandoned or placed the drugs’ on the ground. Langston v. Commonwealth, 28 Va. App. 276, 286 (1998) (quoting Brown v. Commonwealth, 15 Va. App. 1, 10 (1992) (en banc)). ‘Whether [a] hypothesis of innocence is reasonable is itself a “question of fact” subject to deferential appellate review.’ Haskins v. Commonwealth, 44 Va. App. 1, 9 (2004) (citation omitted) (quoting Emerson v. Commonwealth, 43 Va. App. 263, 277 (2004)). The trial court rejected appellant’s ‘hypothesis.’ It properly may be inferred that the baggies were dropped when the officer heard a thud. See Langston, 28 Va. App. at 286 (holding that the evidence sufficiently proved that the defendant possessed the bag of cocaine found on the floor of a police van after the defendant had been the only person transported in the van). Further, it reasonably may be inferred that no one would carelessly or deliberately leave drugs valued at $500 on the ground. See Watts v. Commonwealth, 57 Va. App. 217, 233 (2010).” Patton.

Patton is a warning to everyone about whom to associate with and where to be present

Patton continues the decades-long line of Virginia appellate cases putting innocent people at risk for being in places or with others that contain contraband items, without even the knowledge of the innocent person. Be warned

Virginia criminal lawyer Jonathan L. Katz pursues your best defense against felony, misdemeanor and DUI prosecutions in Fairfax County, Arlington, Prince William, Loudoun and beyond. Call 703-383-1100 for a free in-person consultation with Jon Katz about your court-pending criminal or DWI case.