How Investigate and Develop a Criminal Defense Strategy for a Gun Charge
First, let’s address that nearly all of the cases that I am assigned, gun charges stem from a traffic stop and vehicle search. So I’ll talk about that dynamic. Obviously, we want to start at the beginning.
How did the police come in contact with you? Or in other words, what made him traffic stop you?
The Officer’s Traffic Stop
Cops have to establish a Reasonable Suspicion for a stop – cops often refer to it as “the PC for a stop” but the stop itself is based upon a reasonable suspicion that you committed a crime or you are about to. As an investigator, I am attacking the reason for the stop.
Nowadays, cops have video or should have video, if they don’t, that’s an area for your attorney to attack. What are they hiding? We are in the transparency era. The video is the best partner you can have as a police officer.
When I’m reviewing the case and looking for the reason for the stop, I’m looking for articulable reason for the stop. I’m checking the exact location of the alleged infraction and looking for potential witnesses and 3rd party video too.
If the stop can be suppressed, everything that follows will be excluded. That means the evidence, the gun, will be removed as evidence. The next part of my investigation is to determine how they got into the car – which means did they execute a legal search?
Why Did the Officer Search Your Vehicle?
Before the police, deputies, or detectives can search your vehicle, they need Probable Cause to search it based upon certain factors, or you can voluntarily grant them permission to search. This is referred to as a Consent Search. And let me tell you this… NEVER GIVE CONSENT!
Listen carefully, if the police want consent to search your vehicle, they don’t have probable cause. Don’t give in. If it seems as if you have no choice because the cop says something like, “You might as well give me consent because I’m calling for the dog,” or, “I’m going to search it anyways,” or “if you’ve got nothing to hide, just step out. It will only take me two minutes.” Don’t fall for it.
Here in Florida, the cops love to say that they “smell marijuana” but the smell alone is not enough. In your case, if this terminology was used by the police, I’ve got strategies and investigative methods to examine that.
Your responses to their questions are critical to the police establishing Probable Cause, so don’t voluntarily offer up statements, and never incriminate yourself or admit to anything. Your words may help the police create Probable Cause. Choose your words carefully, or just clam up.
But the cops can also use other means to establish probable cause. If they see something in Plain View, they may order you out of the vehicle to search based upon that observation. So keep a clean car.
Another common method the police use to search your car is by summoning a canine handler to have his dog do a perimeter search. Most importantly, the police may NOT delay your stop just to get a dog on-scene to sniff the exterior of the car. So if there was a delay, we can exploit that the police violated case law and policy as well. For that matter, how did the dog alert? Was the alert on video? Training records of the police are crucial here too. As the investigator, this is a huge area of interest and my attorneys can challenge many factors in the dog sniff to establish Probable Cause.
Over the years, cops have gone unchallenged in this area. Not anymore. The canine is no longer a free pass for the police to create Probable Cause out of thin air, but you’ll need an investigator with the knack to crack that part of the case!
Possession – Did you have Knowledge and can the Prosecutor Prove it?
Can the police point to your knowledge of the possession with direct evidence or circumstantial evidence?
Where was the gun located? How many people were in the car? Is your DNA or prints on the gun? Many officers contaminate the gun and/or don’t bother going through with this step. Was the gun in a bag, under a seat, or right next to you? All of these variables help to defend your case.
Direct evidence usually comes from your words – so don’t tell the police anything that is going to help them link the gun to you. The police might also say that the gun was within arm’s reach or “ready-at-hand” is another popular phrase. But was it? Could you contort your arm to reach for it while in a bag and in the backseat? That circumstantial evidence could be challenged and ending up a very weak part of the prosecutor’s case.
Fighting a gun case in Florida and if it goes Federal is critically important. The penalties may often lead to a decade or more in prison. You must have the right Criminal Defense investigator to boldly and critically tear into the case.