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What kind of observations do officers have to make to justify an arrest, that moment of restraint on your liberty when you feel – and a reasonable person in your position would also feel – not free to leave? Probable cause requires specific and articulable facts to support a strong, honestly-held and reasonable belief that crime is afoot. It then becomes an issue in analyzing the basis for arrest in your case – what observations had the officers made prior to the arrest and do those observations rise to the level of “probable cause”? If not, the arrest is illegal and any evidence obtained through that arrest will be excluded.

In two California Supreme Court cases, Cunha and Remers, the court found that the observations made at the time of arrest were insufficient to justify the arrest. In Cunha, the officers observed “some sort of transaction” between two people involving what they believed to be the sale of what “appeared” to be an object for what “appeared” to be money. The officers also observed the suspect “looking around” before the “transaction” occurred. Finally, the officers testified that they had participated in numerous narcotics arrests in the area. Finding insufficient specific and articulable facts to constitute probable cause to arrest, the Supreme Court held: 1) that a high crime area cannot convert innocent circumstances into sufficient cause; 2) that neither the petitioner’s activities nor the location of his arrest provide probable cause for arrest; 3) that transactions conducted by pedestrians are not per se illegal; and 4) that the participants’ apparent concern for privacy did not imply guilt.

Shortly after the decision in Cunha, the California Supreme Court decided Remers v. Superior Court, which actually involved the same arresting officers, in the same location, and on the same day as inCunha. In Remers, a suspect merely showed a companion a tinfoil package, as to which the officers were unable to see the contents or to identify any impressions in the foil wrapping. On that basis, the officers conducted an arrest. Holding the circumstances provided even less justification for arrest than in Cunha, the Supreme Court stated that, for all the officers knew, the tinfoil package could have contained cookies!

If you are arrested and charged with Possession for Sale and your arrest was legal, your defense will leap forward to focus on defeating the intent to sell element. To support a charge of Possession for Sale (of drugs, not cookies), the prosecution will rely on so-called “indicia of sales” to support their case that the controlled substance was possessed with the intent of selling it. Some common indicia involve: large quantities of drugs, large quantities of cash, pay-owe sheets or registers, scales, packaging, and associated text messaging (the search of which will now require a separate warrant, absent some emergency justification).

Sometimes what appears to the prosecution to be a case of Possession for Sale is, in reality, merely a case of Possession for Personal Use. In cases of Possession for Personal Use, many of our clients have had the opportunity to successfully participate in Diversion, a short-term, out-patient drug treatment program, instead of suffering ANY conviction. We have also successfully argued on behalf of our clients who, even if engaged in sales behavior, are truly motivated by their own drug addiction and entitled to treatment in lieu of custody. Also, it is important to note that, if your alleged sales case is reduced to Possession for Personal Use, that offense is now a misdemeanor (not a felony) as a result of Prop 47 re-sentencing! You will therefore avoid a felony drug conviction on your record. While we strive to make sure that all our drug offense clients are qualified for a “treatment alternative”, if you do face custody time on a Possession charge it will be greatly reduced now as a misdemeanor and you will also avoid the significant monthly costs of the more intensive felony probation. And, if you do suffer a conviction, please keep in mind that we can always get you early termination of probation, removing the burden of probation as early as half-way through your term of probation (for example, after 1 1/2 years on a 3 year probation grant), and an expungement to remove any conviction from your record and help you move on with your life.

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