DRUG OFFENSES
The attorneys at Mastantuono Coffee & Thomas have over 30 years of combined experience defending all types of drug cases, from simple possession of marijuana, to possession with the intent to deliver and delivery of other controlled substances. We talk to people regularly who have questions such as:
Is possession of marijuana, cocaine, or heroin a felony?
Can I go to prison for possession?
Are there drug treatment courts in Wisconsin?
Can the police take my property if they charge me with keeping a drug house?
Is possession of marijuana still illegal in Wisconsin?
How can the police charge me with a drug conspiracy?
We have the answers to these questions, and any others you may have about your particular situation.
WISCONSIN DRUG CHARGE DEFENSE ATTORNEY
If you are facing a drug charge, you want an attorney who not only has expertise in the law, but who knows every option available to you to limit the damage and create a positive outcome. We have represented people on State of Wisconsin drug cases in dozens of counties, and in Federal Courts in Wisconsin. Prosecutors, judges, drug agents and police know our work. While with the State Public Defender’s Office in Waukesha County, Attorney Mastantuono founded a special team of attorneys focused solely on defending drug prosecutions. We have a reputation for working every angle at fighting drug cases or negotiating plea agreements that often involve reduced charges and penalties. We have experience filing motions to suppress evidence, to disclose confidential informants, and, where appropriate, to accurately reflect substantial assistance to prosecutors.
If charged with a drug offense, you also want an attorney who knows how to spot and litigate issues related to your 4th amendment Constitutional right against unreasonable police search and seizure. In other words, were police authorized to search your home, your car, or your person? Did they have a warrant and, if not, was the search legal? The attorneys at Mastantuono Coffee & Thomas have this experience and a long track record of success litigating cases where our client’s Constitutional rights were violated. We have written articles on this subject and have been invited to train our colleagues in this area of law. Some of these materials are available electronically, such as Can They Do That, which also appears below.
Additionally, many of our clients who are facing drug charges also have personal drug addiction problems, complicating their cases and their ability to follow court ordered drug-monitoring programs. We represent minors and young adults whose parents hire us to help their child with both their legal problem and their addiction problem, as well as adults from all walks of life who have had difficulty and need help. At Mastantuono Coffee & Thomas, we take a comprehensive approach to our client’s situation that is meant to achieve the best outcome to their case and ensure the client’s long-term success. This often means referring our clients for drug abuse treatment, monitoring their progress, watching for problems, and using this information to get a break from prosecutors and judges in a pending case. Our attorneys currently participate in several criminal justice policy groups that have formed the most recent alternatives to traditional drug prosecution, including drug treatment courts, case diversion, deferred prosecution agreements, and veterans courts. This enables us to know the most recent developments and to speak the current language of effective justice strategies, achieving good results for our clients.
The attorneys at Mastantuono Coffee & Thomas have the experience to get you through this difficult time and to give you an assessment of your situation. Call us now– we’re available and we look forward to speaking with you.
WISCONSIN DRUG CHARGES
Following is a summary of selected Wisconsin drug statutes. Note that the penalties listed below can be increased based upon an individual's prior record, called a repeater enhancer, and other factors.
HOW IS DRUG WEIGHT DETERMINED?
It is the weight of the drug plus any compound, mixture, diluent, plant material or other substance mixed or combined with the drug. Wis. Stat. § 961.41(1r).
CLASSIFICATION OF DRUGS
Drugs are grouped according to the type and addictive nature. These groups are referred to as "schedules," and include illegal drugs and prescription drugs.
Schedule I Drugs: Wis. Stat. §§ 961.13 and 961.14.
These are drugs that have been determined to have a high potential for abuse, have no currently accepted medical use in treatment in the US, and that lack accepted safety for use in treatment under medical supervision. Some of the more well-known drugs include: heroin, MDMA, LSD, mushrooms, and marijuana.
Schedule II Drugs: Wis. Stat. §§ 961.15 and 961.16.
These are drugs that have been determined to have a high potential for abuse, have a currently accepted medical use in treatment in the US or currently accepted medical use with severe restrictions, and abuse of the substance may lead to severe psychological or physical dependence. Some of the more well-known drugs include: opium, codeine, hydrocodone, oxycodone, cocaine, and methamphetamine.
Schedule III Drugs: Wis. Stat. §§ 961.17 and 961.18.
These are drugs that have been determined to have a lower potential for abuse than Schedule I and II drugs, have a currently accepted medical use in treatment in the US, and abuse of the substance may lead to moderate or low psychological dependence. Some of the more well-known drugs include: ketamine, and anabolic steroids.
Schedule IV Drugs: Wis. Stat. §§ 961.19 and 961.20.
These are drugs that have a low potential for abuse as compared to Schedule III drugs, have a currently accepted medical use in treatment in the US, and abuse of the substance may lead to limited physical or psychological dependence relative to Schedule III drugs. Some of the more well-known drugs include: alprazolam (Xanex), diazepam (Valium), zolpidem (Ambien), and tramadol.
POSSESSION WITH INTENT TO DELIVER – WIS. STAT. § 961.41(1M)
Possession of a drug with the intent to deliver (sell) it is a felony offense regardless of what the drug is. The State may prove that a person intends to deliver or sell a drug based upon multiple things outlined in the statute, including the amount, the dollar value, possession of paraphernalia, and the person’s activities or statements prior to and after the alleged violation.
The severity of the penalty for possession with intent to deliver depends upon both the type of drug and the amount. Following are some examples where years listed are the maximum possible penalty, without any enhancers.
Marijuana: varies from a Class I felony (3.5 years), up to a Class E felony (15 years)
Cocaine: varies from a Class G felony (10 years), up to a class C felony (40 years).
Heroin: varies from a Class F felony (12.5 years), up to a class C felony (40 years).
Methamphetamine: varies from a Class F felony (12.5 years), up to a class C felony (40 years).
Federal possession with intent to deliver or federal consipracy with intent to deliver are also charged based on the type of drug and the amount. The penalties vary widely, but the penalties generally vary from a maximum of 5 years, up to life imprisonment, including possible mandatory minimum amounts of prison of 10-20 years. 21 USC § 841.
DELIVERY OF A DRUG – WIS. STAT. § 961.41(1)
Delivery of a controlled substance is a felony offense regardless what the drug is. The severity of the penalty depends upon both the type of drug and the amount. Following are some examples where years listed are the maximum possible penalty for Wisconsin drug charges at the state level.
Marijuana: varies from a Class I felony (3.5 years), up to a Class E felony (15 years)
Cocaine: varies from a Class G felony (10 years), up to a class C felony (40 years).
Heroin: varies from a Class F felony (12.5 years), up to a class C felony (40 years).
Methamphetamine: varies from a Class F felony (12.5 years), up to a class C felony (40 years).
In federal court, delivering a controlled substance or consipracy to deliver are also charged based on the type of drug and the amount. The penalties vary widely, but the penalties generally vary from a maximum of 5 years, up to life imprisonment, including possible mandatory minimum amounts of prison of 10-20 years. 21 USC § 841.
POSSESSION OF A DRUG – WIS. STAT. § 961.41(3G)
Possessing a drug can be a misdemeanor or a felony, and depends on the type of drug and the amount.
Possession of Marijuana: a first offense carries up to 6 months in jail and/or a $1,000 fine. A second or subsequent offense is a Class I felony (carrying up to 3.5 years). A first offense includes any prior drug conviction (misdemeanor or felony). So, if a person who was found guilty of possessing cocaine is charged with now possessing marijuana, it can be treated as a felony second offense.
Possession of Cocaine: a first offense carries up to 1 year in jail and/or a $5,000 fine. A second or subsequent offense is a Class I felony (carrying up to 3.5 years). A first offense includes any prior drug conviction (misdemeanor or felony). So, if a person who was found guilty of possessing marijuana is charged with now possessing cocaine, it can be treated as a felony second offense.
Possession of Heroin: any offense is treated as a Class I felony (3.5 years)
Possession of Methamphetamine: is treated as a Class I felony (3.5 years)
POSSESSION OF DRUG PARAPHERNALIA – WIS. STAT. § 961.573(1)
Possession or use of a device to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce a controlled substance into the body is a misdemeanor carrying up to 30 days jail. However, if the paraphernalia is related to methamphetamine, it is a Class H felony (6 years).
SEARCH AND SEIZURE: CAN THEY DO THAT?
ANSWERING THE FOURTH AMENDMENT QUESTION
Craig Mastantuono – Mastantuono Law Office, SC
Author’s Note: This outline was distributed at a presentation by Attorney Craig Mastantuono to Wisconsin criminal defense lawyers at the 1998 State Public Defender Office Annual Conference. It is in the original language, with minor updates.
The government considers it an intrusive barrier to catching bad guys, the judges wish that they didn’t have to be the ones asked to enforce it, and the public thinks it’s a way to get people off on a technicality. It is the Fourth Amendment to the United States Constitution, and the only good friends it really has these days are criminal defense lawyers…and you thought you had it bad.
Yet, despite being attacked by a hostile Supreme Court for the last three decades, ignored by the government and misunderstood by the public, the Fourth Amendment still stands with honor. It remains the ultimate authority on answering the question of whether the cops can do what they did do in your case. And it isn’t going away, so learn to love it and to wield it as a weapon.
I. THE DEFENSE PERSPECTIVE
The first step to wielding the Fourth Amendment as a weapon is to understand the Fourth Amendment. A working understanding of the Fourth Amendment will put you ahead of the cops, the DA’s and the judges that you have to fight in order to win motions. Demonstrate your comfort and knowledge when you litigate your motions and you’ll be a step ahead every time.
A. STICK TO A BASIC VIEW OR FRAMEWORK
Don’t worry so much about keeping up on all the advance sheets on search and seizure cases; it’s more important to apply your basic understanding of Fourth Amendment restrictions to the facts of your case. Once you accept the centrality of the warrant requirement of the Fourth Amendment and the six classic exceptions to that requirement, the new case law simply adds different fact situations to the framework.
B. TELL YOUR CLIENT’S STORY DURING THE MOTION HEARING
It’s your chance to persuade. The judge is more likely to grant your motion if you can provide the details and setting of the search/seizure complete with an emotional hook. The defense should have an advantage here. The emotional hook should work for us rather than the prosecutors because Americans worship privacy. We build fences, move to the burbs, install car alarms, tint windows, and protect our “personal space” more than people of any other culture. Nobody wants somebody looking through their stuff, patting down their person, or rummaging through their car, even if the intruder is a cop and especially if that intrusion is illegal. That’s the hook: cops abuse their power, and they can’t do that.
II. THE NUTS & BOLTS
A. THE PRELIMINARY QUESTIONS: DOES THE FOURTH AMENDMENT APPLY?
If defense counsel can answer “yes” to each of the three preliminary questions, the restrictions of the Fourth Amendment apply. These questions must be asked and answered before defense counsel can even get into discussing whether the search was legal:
1. Is there state action? The person doing the searching and seizing must be a government actor. Since this is almost always a cop, this is not often a problem. 2. Is there standing? The client objecting to the search must be the person whose right to privacy was violated. (This issue can come up in cases involving multiple defendants where police search a private area, but only one defendant had the privacy interest in that area, and standing to object.)3. Is there a reasonable expectation of privacy?A lot of the action is here these days. A smart DA will insist that the defense demonstrate a reasonable expectation of privacy in what was searched or seized prior to any evidence being taken from the cops. This throws off defense lawyers sometimes, because we get trained into thinking that the state always has the burden and always goes first. Once a reasonable expectation of privacy is demonstrated, the burden then shifts to the state to show a warrant, or a valid exception to the warrant requirement. See e.g., State v. Rewolinski, 59 Wis. 2d 1, 12-13 (1990).
So what is a reasonable expectation to privacy? The classic U. S. Supreme Court case in this area is Katz v. United States, 389 U.S. 347 (1967). In that case, the court stated:
[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.
Did the client want to keep what was searched or seized private, and was he justified in wanting to keep it private? If so, there is a reasonable expectation of privacy.
A client always has a reasonable expectation of privacy in keeping his person from being seized. See State v. Harris, 206 Wis. 2d 242 (1996) (a passenger in a car has an expectation of privacy to travel free from intrusion and always has standing to object to the legality of the seizure when police stop the car).
If the answer to all these questions is yes, there is state action, standing, and a reasonable expectation of privacy. The government must then demonstrate that the search or seizure was reasonable under the Fourth Amendment.
B. THE TERMINOLOGY
There is a trap that prosecutors set for judges: they tell the judges not to get all caught up in some debate about warrants, and exceptions and all that, and instead to simply decide “whether the officers’ actions were reasonable.” It has a simple appeal to the judges, and this approach follows from the language of the Rehnquist Supreme Court in recent search and seizure cases. However, it is still a trap. Once the judge falls for it, a defense motion to suppress is denied much more easily.
Defense counsel can thwart the trap by insisting on the standard set in the U.S. Supreme Court case Coolidge v. New Hampshire, 403 U.S. 443, 445-455 (1971):
The most basic constitutional rule in this area is that searches conducted outside the judicial process, without prior approval by judge or magistrate are per se unreasonable under the Fourth Amendment, subject only to a few specifically established and well-delineated exceptions.
Strong stuff. It’s a famous quote in search and seizure law. The importance of it cannot be overlooked. The prosecutor says that what really counts is that the officer’s actions are reasonable? Good. What is reasonable? The existence of a warrant. No warrant exists in this case? Then what exception to the warrant requirement applies? There are six exceptions. Enough “reasonable” talk.
A trap that defense lawyers can fall into is a debate about whether a client was under arrest, or Terry-stopped, or under a traffic stop, blah, blah, blah. It’s usually a debate that takes place while the cop is on the stand, and defense counsel is trying to persuade the judge with effective cross-examination. Don’t go there. This is cop/DA terminology, and defense counsel will never win the debate. What really matters are two words: search and seizure. Was something searched? Was something or someone seized? When a person is seized, he or she is not free to leave. Don’t worry about whether it was an arrest, a Terry-stop, or whatever. What matters is that the client was not free to leave. The cop will usually admit that but if not, the court applies an objective standard in answering this question: would a reasonable person, under the circumstances, feel free to leave? Once a search or seizure is shown, a warrant had better be there, or it must fall under an exception.
C. THE WARRANT REQUIREMENT AND THE EXCEPTIONS.
The Fourth Amendment protects the people from the government. Everyone knows this. Protects the people from what? From having their persons, houses, papers and effects unreasonably searched or seized. The people have the right, and the government is restricted. So what is reasonable? Coolidge. Searches and seizures with a warrant. No warrant? Let’s go to the exceptions.
Each exception has a constitutional justification for not requiring a warrant. Each exception also has requirements that must be met for the exception to be valid. And each exception has a requisite quantum of proof. They are outlined below.
1. SEARCH INCIDENT TO LAWFUL ARREST
CLASSIC CASE: CHIMEL V. CALIFORNIA, 395 U.S. 752 (1969).
JUSTIFICATION: protection of officer’s safety when making arrests and protection of evidence from destruction when making arrests.
REQUIREMENTS:
lawful arrest
search only of the area within the arrestee’s immediate control.
See Wis. Stat. § 968.11
REQUISITE QUANTUM OF PROOF: arrest warrant, or probable cause for a warrantless arrest. See Wis. Stat. § 968.07.
NOTE –
This search always involves a complete search of the arrestee’s person. See United States v. Robinson, 414 U.S. 218 (1973).
Chimel contemplates a “protective sweep” of the premises where arrest is made, or of the areas from which the arrestee could grab a weapon or evidence
This search always includes a search of the entire passenger compartment of a car, including containers in the passenger compartment, but not a closed trunk. See New York v. Belton, 453 U.S. 454 (1981); State v. Fry, 131 Wis. 2d 153 (1986).
But see Arizona v. Gant, 556 U.S. 332 (2009) limiting the search incident to arrest those situations when reasonable belief that evidence of the arrest offense can be found there. (Gant was stopped for driving on a suspended license, and the police search of the car was unlawful because no evidence of driving offense could be found there).
2. CONSENT
CLASSIC CASE: SCHNECKLOTH V. BUSTAMONTE, 412 U.S. 218 (1973).
JUSTIFICATION: constitutional rights can be waived
REQUIREMENTS:
search must be limited in scope to the consent given. See State v. Johnson, 187 Wis. 2d. 237 (1994).
search must take place at the time consent is given, not later. See State v. Douglas, 123 Wis. 2d 13 (1985), State v. Mazur, 90 Wis. 2d 293 (1979).
REQUISITE QUANTUM OF PROOF: Voluntariness—the consent must be given voluntarily.
NOTE —
voluntariness is a question of fact to be determined from the totality of the circumstances. Schneckloth.
consent may be express or implied. Schneckloth.
the state of the defendant’s mind, and the failure of police to advise the defendant of his rights, are factors to be evaluated in assessing voluntariness, Schneckloth.
consent granted during an unlawful seizure of the person is not valid consent. See Florida v. Royer, 460 U.S. 491 (1983).
3. STOP & FRISK – TERRY STOP
CLASSIC CASE: TERRY V. OHIO, 392 U.S. 1 (1968).
JUSTIFICATION: police investigation of possible criminal activity in public encounters, and officer safety during those encounters.
REQUIREMENTS:
temporary detention if person is seized
limited pat-down for weapons if person is searched
REQUISITE QUANTUM OF PROOF: reasonable suspicion—it is a two-step process: the officer must have reasonable suspicion to believe the subject is engaging in a crime in order to detain. Once detained, the officer must have reasonable suspicion to believe the person is armed and dangerous in order to frisk for weapons.Reasonable suspicion is a standard based on articulable facts, not the officer’s hunch.
See Wis. Stat. §§ 968.24 & 968.25
NOTE —
don’t fall into the trap of skipping the two-step nature of the requisite quantum of proof
the stop does not automatically justify the frisk—you can have a valid stop without reasonable suspicion to frisk
some judges think that a Terry-stop requires the stopping of the subject’s physical motion—i.e. you can’t Terry-stop a person who is already not moving—this is wrong. A person is Terry-stopped, or seized, when the police make a show of authority, to which the subject submits. See California v. Hodari D., 499 U.S. 621 (1991).
It doesn’t matter whether the person was moving or not when Terry-stopped, or seized.
4. PLAIN VIEW
CLASSIC CASE: COOLIDGE V. NEW HAMPSHIRE, 403 U.S. 443 (1971).
JUSTIFICATION: investigation and collection of items discovered by the police while performing lawful duties
REQUIREMENTS:
officer must be in a place where he has a right to be
the contraband must be in plain view and immediately apparent as contraband
REQUISITE QUANTUM OF PROOF: probable cause—the officer must have probable cause to believe that the item in plain view is contraband. See Arizona v. Hicks, 480 U.S. 32 (1987).
NOTE —
the US Supreme Court is weakening the standard on plain view searches—the court has held that the officer cannot search while he is in the area where evidence is seen, but also that he need not necessarily discover the contraband “inadvertently” See Horton v. California, 496 U.S. 128 (1990)
the “plain feel” doctrine is outlined in Minnesota v. Dickerson, 113 S.Ct. 2130 (1993), and is a combination of a Terry Search and Plain View—If a cop is legally patting someone down—and feels something that is immediately apparent as contraband, the item may be seized—
5. EXIGENT CIRCUMSTANCES—HOT PURSUIT
CLASSIC CASE: WARDEN V. HAYDEN, 387 U.S. 294 (1967).
JUSTIFICATION: protection of police and public from danger, and from destruction of evidence
REQUIREMENTS:
police must believe that aid is necessary
search/seizure is limited in scope to the extent and duration of the emergency
REQUISITE QUANTUM OF PROOF: reasonable belief—both objectively and subjectively, that aid is necessary
NOTE –
when an armed felon flees into house immediately before police arrive, police may search as broadly as reasonably necessary to prevent escape—Warden.
warrantless entry of suspect’s home for civil non-jailable traffic offense not legal under the 4th Amendment/Exigent Circumstances. See Welsh v. Wisconsin, 466 U.S. 740 (1984).
6. AUTOMOBILE EXCEPTION
CLASSIC CASE: CARROLL V. U.S., 267 U.S. 132 (1925).
JUSTIFICATION: the lessened privacy interest that people have in their cars, and the inherent mobility of cars
REQUIREMENTS:
information,
to believe that the car contains contraband
REQUISITE QUANTUM OF PROOF: probable cause
NOTE –
he search under this exception is of the entire car, including containers within the car. See United States v. Ross, 456 U.S. 798 (1982).
this exception allows a broader search than a search incident to an arrest of a person in car—the automobile exception includes a search of the trunk
police can remove the car from the scene and search it later. See Chambers v. Maroney, 399 U.S. 42 (1970).
if the police have probable cause to believe that a container in a car contains contraband, they may search the container without a warrant. See California v. Acevedo, 111 S.Ct. 1982 (1991).
a mobile home is a car. See California v. Carvey, 471 U.S. 386 (1985).
D. NO OTHER EXCEPTIONS.
If the judge falls for a prosecutor’s insistence that the search was valid under another exception to the warrant requirement, then the judge is creating new law. Make the judge scared of this. No judge wants to be out on a branch alone, ripe for being overturned. Prosecutors try many new justifications for warrantless searches these days, for example, the community caretaker function of police. Courts in Wisconsin are not accepting this as an exception justifying police searches and seizures. See State v. Dull, 211 Wis. 2d 652 (1997). Now, of course there are cases out there where courts uphold warrantless searches and seizures without applying one of the six exceptions outlined above, but they are rare, and very fact-specific. Stick with the classics, and you’ll usually be ok.
III. THE STORY, OR TELLING THE COURT HOW YOUR CLIENT WAS VIOLATED
To persuade the judge or appellate court to grant Fourth Amendment challenge, defense counsel must convince the Court that the cops abused their power. At the trial level, this persuasion occurs at the motion hearing. Though the hearing is evidentiary, both judges and lawyers often “cut to the chase” at these hearings and defense counsel often forgets about the persuasive skills and tactics employed at a jury trial. To a certain extent, this is understandable: judges don’t want to sit through an opening statement, in storytelling fashion.
But persuasive skills are still important at the motion hearing, and most of those skills are used during the direct and especially cross-examination of the witnesses. Outlined below are a few things to keep in mind:
A. THIS IS NOT JUST ABOUT YOUR CLIENT, BUT SOCIETY.
How many times did the cops do this type of search or seizure, but found no evidence of a crime? Courts only review the case after police find evidence, the DA files a criminal complaint, and defense counsel files a motion. That provides an awful lot of room for the cops to do the same thing to another person, with no review by a court. Make this point with the judge, and the court won’t fall for a hindsight justification that the police found evidence in this case, so the search or seizure was ok. There are different ways of driving this point home. Perhaps the best way is to ask the officer, “Is this a routine practice in performing your duties?”
B. IMPEACHMENT IS KEY.
Impeachment by prior inconsistent statement is more important here than during any other evidentiary process. Why? Because a motion hearing provides a better opportunity for lying, stretching the truth or “adding things,” than a jury trial. Police witnesses can read where defense lawyers are going in challenging the search and may try to protect their actions. If information is added to the information in the police report, the witness must be impeached. Use the three-step process:
RECOMMIT the witness to the new inconsistent statement;
ACCREDIT the prior source; and,
EXPOSE the inconsistency.
The judge and/or reviewing court should see that the officer is being a weasel by adding things. If defense counsel does not relax these impeachment techniques at the motion hearing, the point will come across.
C. POLICE OFFICERS DON’T HAVE CONSTITUTIONAL PRIVACY RIGHTS, CLIENTS DO.
Prosecutors are often fond of suggesting to the court that the cop had the “right” to perform a search or seize a person. Courts need to be reminded that the constitution limits the government’s authority in favor of citizens’ rights. In the Fourth Amendment motion hearing setting, this distinction is subtle, but effective in driving home the point that police don’t have rights in this setting. The police may or may not have authority to act, but that is a different thing. The constitution limits authority and protects rights. The only one with rights at the motion hearing is your client.
D. OBJECTIVE V. SUBJECTIVE STANDARD.
An objective standard asks whether the officer’s acting were reasonable. A subjective standard asks whether the officer thought his actions were reasonable. Courts apply an objective standard at Fourth Amendment motion hearings