Felony Drug/Firearm Possession
Posted on Aug 15, 2009 12:00am PDT
I recently represented someone charged with being a felon in possesion of a firearm that involved uncharged drug trafficking allegations. Successfully defending the case was especially important to the client as he was looking at upwards of a fifteen-year sentence due to his prior criminal history.
The Defendant was approached by gun-toting gung-ho police officers who chose to arrest him first, and ask questions later. The police officers had responded to a parking lot after an anonymous caller told dispatch that there were two Hispanic males that were passing a gun between each other in a car. The caller did not report of any threatening or menacing behavior, did not predict any future movements by the defendant or his travel companion, and left her telephone number so that police could call her back should they so desire. The police officers approached my client and his friend with their rifles drawn and fingers on the triggers and placed my client and his friend under arrest. Subsequently, while being patted down, a gun fell to the pavement from my client's pants.
There was some very bad U.S. Supreme Court case law that had to be overcome in defeating the case. The case law basically stood for the proposition that an investigatory stop (a Terry stop) can be had if the anonymous tipster sufficiently articulates a description of the target(s) and is able to predict the target(s) future movements. The facts in the case at hand were sufficiently distinguishable to escape the ugly federal precedent and through heavy briefing and intense litigation, I was able to get the entire case dismissed. Indeed, after my briefing was concluded, it was evident that the federal government would not seek to prosecute the matter too.
Federal re-prosecution is always a consideration in cases like this. Double jeopardy does not prevent the State and Federal governments from dual prosecutions because they are two soveriegns. The Federal precedent, however, will soon come into play as the State of New Mexico has started a DWI initiative that encourages the general public to anonymously report drunk drivers by calling a state-sponsored telephone number. I anticipate litigating many more anonymous tip-based stops in the future and I foresee several problems with the state requesting that the general public undertake law enforcement responsibilities that are generally left to trained professionals.