In the late 1980s, largely prompted by the drug overdose death of college basketball phenom Len Bias, lawmakers approved a slew of harsh drug possession laws. Local law enforcement and judicial authorities, who were eager to look “tough on crime,” enthusiastically enforced these laws.

Upon later review, it became apparent that these laws were an overreaction and based on shaky science. As a result, lawmakers repealed the most draconian laws. Additionally, former President Barack Obama pardoned thousands of people who had been prosecuted and convicted under such laws.

And, the number of arrests is the only effective measuring stick for progress in this war. As a result, in 2020, authorities arrested over a million Americans for drug-related offenses. Almost 90% of these arrests were for simple possession.

However, although the War on Drugs continues, the rules of engagement have changed. For example, many jurors now view drug use as not a criminal law issue, but as a health and safety issue. These same jurors also often question the heavy-handed police tactics often used in these situations.

Because of this different environment, the diligent Chicago drug possession lawyers at The Law Offices of Vadim A. Glozman often successfully resolve even the most complex drug possession matters in Cook County. We firmly believe that thorough preparation is the key to this success. Students who do their homework usually do well on their tests, and lawyers who lay the groundwork usually do well in court.

Drug Possession Jail Release

As it does in other criminal cases, prompt jail release in a drug possession case jumpstarts a successful criminal defense. Since this offense is nonviolent, the full range of jail release options in Cook County is usually available in these cases.

If the defendant has no prior criminal record, a pretrial release may be an option. If a review board approves pretrial release, or own recognizance (OR) release, the sheriff opens the cell doors and frees the defendant before trial. The defendant must simply promise to appear at all required hearings and fulfill a few other conditions.

But many defendants have a prior conviction. Furthermore, while OR release is inexpensive, it is usually not immediate. So, a pretrial release may not be available, or it might not be the right choice.

Remaining jail release options include cash bail and a bail bond. Cash bail is a lot like a rental property security deposit. The defendant puts up a rather substantial amount of cash, and if s/he fulfills all bail conditions, the sheriff refunds most of the money. Bail bonds are like insurance policies. If the defendant fails to fulfill all conditions, the bonding company assumes the financial risk.

Elements of a Drug Possession Case in Illinois

Jail release is important for planning purposes. Perhaps even more so than other offenses, drug possession cases have many moving parts. Generally, state and federal prosecutors must establish three elements to obtain a drug possession conviction.

Produce the Substance in Court

Drug cases hinge on physical evidence. Unless prosecutors produce the contraband, the jury automatically has a reasonable doubt about possession. The arresting officer’s testimony on this point is legally insufficient. Contraband is inadmissible in court unless police officers had a valid warrant or a recognized search warrant exception applied.

Trafficking cases often include search warrants. Usually, investigators work for months to build a drug trafficking case. Once they have sufficient evidence to establish probable cause, the standard of evidence required in these situations, they request warrants.

But most possession cases don’t involve warrants. Events occur too quickly. Therefore, a search warrant exception must normally apply. Some common ones include:

• Exigent Circumstances: This exception often comes up in disturbance call matters. If officers reasonably believe someone is in trouble, they may sweep through a room or building without a warrant and conduct a safety inspection. During this safety inspection, they may seize any drugs or other contraband they see in plain view.

• Plain View: As the name implies, the plain view exception applies if officers see contraband. They cannot use binoculars, cameras, or other imaging technology to bring things into plain view. An officer must be physically present. Additionally, the officer must lawfully be in that place at that time.

• Consent: Owners, or apparent owners, may voluntarily consent to property searches. An apparent owner is an individual like a roommate whose name isn’t on the lease. Furthermore, voluntary consent is free from coercion. If officers threaten to obtain a warrant if the owner does not consent, that permission is arguably involuntary.

Only officially recognized exceptions hold up in court. Prosecutors normally cannot argue that the facts of a particular case amounted to probable cause.

Prove it Was Illegal

There is a major difference between unscientific “field tests” and chemical laboratory tests. Marijuana, which is illegal under federal law, is a good example. This substance has the same physical qualities as hemp, which is legal under state and federal law. Only a THC content test can distinguish between the two.

On a related note, state and federal controlled substances lists are subject to change. Synthetic marijuana is a good illustration. Scientists often develop new artificial strains of marijuana faster than bureaucrats or lawmakers can add them to the controlled substances list. So, there is a good chance that the substance was not technically illegal at the time of the arrest.

A Chicago criminal defense lawyer can request a free (well, at least free to the defendant) chemical test in most jurisdictions. Frequently, prosecutors would rather offer a favorable plea bargain agreement than order an expensive test which the county must pay for.

Oxycontin and other prescription pain pills are in a special category. Almost no one retains written prescriptions. Furthermore, many people do not keep their pills in a labeled bottle. Instead, they put them in a pill caddy or other container.

Police officers usually do not believe defendants if they say they have a valid prescription. Producing a valid prescription is usually a fatal weakness in terms of the evidence in the case. Prosecutors might still be able to make a possession case, but it is incredibly difficult. More on a fatal weakness below.

Establish Possession

Many people are surprised to learn that “possession” is not the only element of a drug possession case. Possession, which basically means proximity in this context, is defined very broadly in both state and federal law. For example, a pickup truck’s bed and a passenger car’s trunk are usually part of the passenger area, even though passengers usually have no access to these areas, at least while the vehicle is moving.

The other two elements of possession are knowledge and control. Federal and state law defines these elements much more narrowly. In fact, in many cases, a defendant could literally be sitting on illegal drugs and not legally possess them.

Assume Tara is at a loud house party when someone calls the police. During an exigent circumstances security sweep, which was outlined above, officers find various illegal drugs, mostly prescription pain pills. In court, prosecutors would be hard-pressed to connect Tara with those drugs, especially if the party was loud and crowded enough to merit a disturbance call.

Or, assume Tim gets a ride home with people he just met at the party. Officers pull over the driver for a traffic violation. The officer sees signs of drug use, like glassy eyes, asks to search the car, and the driver agrees. During this search, the officer finds prescription pain pills in the glove compartment.

As for Tim, establishing the proximity element is quite easy. But establishing knowledge and control would be very difficult. That’s especially true if the drugs were in a locked glove compartment, or if the drugs were in an unlocked glove compartment and someone else was in the passenger seat.

Possible Resolutions

If the evidence on any point is fatally weak, a Chicago drug possession lawyer may be able to have the case thrown out of court. If both variations of the Tim example (glove compartment was locked and Tim was in the back seat), a judge might rule that a prosecutor could not possibly establish knowledge and control.

Sometimes, it is best to proceed with a pretrial hearing in these situations. Other times, a bird in the hand is worth two in the bush. If prosecutors are willing to agree to a very favorable plea bargain, accepting that offer might be more advisable than taking a chance at a hearing.

Typically, however, the evidence is simply weak. Police officers often are overly-aggressive in these situations. If they find illegal drugs in a car or dwelling, they usually arrest everyone in the car or dwelling.

A plea to a lesser-included offense, like reckless conduct, could be available in such situations. 720 ILCS 5/12-5 is a Class A misdemeanor as opposed to a felony. Additionally, a reckless conduct conviction does not have the same collateral consequences as a drug possession conviction.

Contact a Dedicated Cook County Attorney

When you work with the aggressive, strategic legal team at The Law Offices of Vadim A. Glozman, the objective is to always secure a not guilty verdict or complete dismissal of charges. If these things aren’t possible, we engineer the most advantageous plea deal.

Federal or state criminal charges can be unnerving and frightening, but a number of successful resolutions are available. For a confidential consultation with an experienced federal criminal defense lawyer in Chicago, do not wait to contact The Law Offices of Vadim A. Glozman by calling 312-726-9015. We routinely handle matters in Cook County and nearby jurisdictions.