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Probable Cause Questioned in Drug Crime


A police officer was on patrol in her cruiser. She noticed a pick-up truck which was swerving and crossing over the solid yellow line dividing the two lanes onto the opposite lane. Then the pick-up truck swerved sharply back to its lane. The police officer then put on her siren and emergency lights and pulled the pick-up truck over.

A New York Criminal Lawyer said when the police officer pulled the pick-up truck over, she went to talk to the driver. She noticed that the driver’s eyes were glassy and red. She noted the smell of alcohol on his breath and the smell of alcohol coming from the interior of the truck. The man’s speech was slurred and he walked unsteadily. She conducted field sobriety test by asking the driver of the pick-up truck to stand on one leg. He dropped his other leg and could not stand on one leg. The officer asked the driver to also walk a straight line heel-to-toe and he could not do that, either.

The man admitted to the police officer that he’d drunk alcohol earlier that evening but he also said that he had already eaten and so he didn’t think that he was that drunk and was on his way home to sleep it off anyway. He also volunteered to the police officer that he had taken suboxone, a step-down drug from heroin addiction.

The police officer placed the driver under arrest for operating a motor vehicle while his ability was impaired by drugs. He was also charged with operating a motor vehicle while his ability was impaired by the combined influence of drugs and alcohol. He was charged with failing to stay in a single lane and failing to signal a turn and operating a vehicle with a modified muffler.

As the police officer was patting him down after he was placed under arrest, the police officer felt what turned out to be a small plastic sachet in his pocket. When the police officer took the object, it turned out to be a small plastic sachet with white powder. The driver apologized and said that he forgot that he had put the heroin in his pocket (heroin possession). The police officer had enough experience in narcotics from numerous drugs arrests in the past. She also filed the charge of criminal heroin possession.

The police officer made an affidavit of the facts within her personal knowledge from the time that she first noticed the pick-up truck until her arrest of the driver of the pick-up. She also put in her affidavit all the statements made to her by the driver of the pick-up as she was giving him the field sobriety tests on the side of the road after she had pulled him over.

The driver of the pick-up truck asked for the dismissal of the drug charge, the traffic violation charges and the driving with ability impaired charges. He claims that the information filed against him indicting him for these crimes was not based on sufficient and legally acceptable evidence. The defendant claims that the police officer’s affidavit contained conclusory pronouncements and not facts. In particular, the driver of the pick-up truck puts in issue how the police officer could have known that what was seized from him was indeed heroin at the time she seized the plastic envelope and arrested him for criminal heroin possession.

An NYC Criminal Lawyer said the only question is whether or not the charge of criminal heroin possession should be dismissed on the basis that the police officer could not have known that the white powdery substance was heroin.

The Court held that the police officer made the conclusion that the white powdery substance was heroin based on the statement made to her by the driver of the pick-up, by the fact that she was familiar with the smell and appearance of heroin having made a few drug arrests in the past; and the fact that the driver was driving with his ability impaired by a mixture of alcohol and drugs which he also freely admitted to the police officer during the traffic stop. All this constitutes probable cause on the part of the police officer. The motion to dismiss the charge of criminal heroin possession is dismissed.

Are you charged with criminal heroin possession? Was the heroin seized from you consequent to a routine traffic stop? You need the assistance and counsel of a New York City Drug Crime Lawyer. A New York Drug Crime attorney will explain to you the nature of the charges against you and advice you as to what your options are. Speak with any of the NYC Drug Crime lawyers from Stephen Bilkis and Associates who can represent you. Whether you have been charged with drug possession, theft or sex crimes, they can help.

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