Beat Drug Charges in Colorado

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By: Bill Henry
PublishedMar 30, 2022
8 minute read

Colorado takes drug crimes very seriously. Even the lowest-level drug charges can make your life substantially more difficult. Fortunately, your chances of successfully defending or mitigating drug charges are significantly higher when you enlist the services of a dedicated criminal defense attorney like the ones at Robinson & Henry. This article highlights some of the legal defenses that could help you beat drug charges in Colorado.

Topics to Explore in This Article

  1. Defenses for Drug Possession Charges
  2. The Drugs Weren’t Mine
  3. Chain of Custody Failure
  4. Unlawful Search Leads to Drug Charges
  5. Defenses for Selling or Buying Drugs
  6. Entrapment Defense
  7. Procuring Agent Defense

white woman defending herself from drugs

How to Beat Drug Charges in Colorado

Whether you are facing misdemeanor drug charges or felony ones, your criminal defense attorney can rely on a number of legal defenses to reduce your sentence or even have the charges dismissed altogether. Let’s take a look at some of the defenses that may work in your drug charge case.

Defenses for Drug Possession Charges

The Drugs Weren’t Mine

On the surface, this defense resembles the classic “my dog ate my homework” excuse. However, a prosecutor must prove that you knew you were in possession of the controlled substances and that you intended to possess them.

Proving knowledge and intent is not always as straightforward as it sounds for the prosecution. For example, being near drugs is not the same as possessing drugs.

Let’s look at a relevant Colorado case.

Drugs in a Stolen Car

In 1977, Adrian Dwire was a passenger in a stolen vehicle that was pulled over by Manitou Springs police officers. The officers arrested Dwire and the driver.

Police searched the vehicle and found two large garbage bags filled with marijuana in the trunk. Dwire was charged with drug possession and subsequently convicted in El Paso County District Court.

Three years later, Dwire appealed his conviction to the Colorado Court of Appeals.

Colorado Appeals Court Reverses Dwire’s Conviction

The Colorado Court of Appeals held that knowing was a required element of the state’s proof to establish possession. The appeals court further held that possession and requisite control over the drugs could be inferred to the driver and owner of the vehicle, but not a passenger.

The court ruled there was no evidence that connected Dwire to the drugs found in the trunk, and the state had failed to prove an element of the crime.

Therefore, the Court of Appeals overturned Dwire’s conviction. People v. Dwire, 624 P.2d 909, 910 (Colo. App. 1980)

Chain of Custody Failure

Colorado courts require prosecutors to authenticate drug evidence by establishing a chain of custody. People v. Rodriguez, 2022 COA 11, ¶ 1

To establish chain of custody in drug cases, prosecutors must always account for the drug’s location—from its initial seizure until the evidence is first offered at trial.

The evidence is admissible as long as prosecutors can prove it was accounted for at all times. If not, then the drugs cannot be used as evidence.

When Chain of Custody is Not Followed

Law enforcement’s failure to follow the chain of custody recently earned one Colorado Springs man a new trial.

Pedro Rodriguez appealed his conviction of cocaine possession with intent to distribute. The conviction arose from a traffic stop that led to a police pursuit.

While running from officers, Rodriguez discarded a small plastic bag containing a white powdery substance. The bag was recovered by a police officer after Rodriguez’s arrest. The officer testified during Rodriguez’s trial that he handed the bag to his sergeant and “never saw it from there.”

A police chemist also testified that he tested the substance and determined it was cocaine. However, the chemist told the court that “he had no knowledge of the circumstances under which Exhibit 1 was created, including who had previously handled the substance in Exhibit 1 or who had prepared and sealed the exhibit bag.” People v. Rodriguez, 2022 COA 11, ¶ 26

The officer’s supervising sergeant did not testify which proved to be the fatal blow in the prosecution’s case:

… had [the officer] testified that he observed [his sergeant] place the bag of white powder into an evidence bag, seal the evidence bag, and make some identifying mark on it, and had the police chemist then testified that when he received it, the bag was sealed in the same manner and with the same identifying marks described by [the officer], the chain of custody would have been sufficient, despite [the supervisor’s] absence. But here, there is no “chain” of custody; there are, at most, two links…. with no additional admissible evidence to connect those initial links to Exhibit 1. People v. Rodriguez, 2022 COA 11, ¶ 29

Because the prosecution could not establish a clear chain of custody for the bag of cocaine, it could not be admitted as evidence in court.

The court reversed Rodriguez’s conviction on the drug charges and ordered a new trial.

Unlawful Search Leads to Drug Charges

The Fourth Amendment of the U.S. Constitution protects individuals from unreasonable searches and seizures by law enforcement.

A warrantless search or seizure is generally presumed invalid unless justified by certain exceptions established under Colorado law.

Let’s consider the following Colorado glove compartment search case.

Can Police Search My Glove Compartment?

In late 2006, Grand Junction police pulled over Jaime Perez for driving with a broken headlight. When Perez could not provide a license, proof of insurance, or registration, police ran his name through a database and learned that Perez had a suspended license and an outstanding warrant for his arrest. The officer arrested him on the outstanding warrant and placed Perez in the backseat of the patrol car.

The police officer then searched the vehicle. The glove compartment was broken which allowed the officer to see into it through a three-quarter-inch crack at the side of the compartment door. He saw a cloth pouch and suspected it contained drugs. However, because the glove compartment was locked with a combination lock built into the door, the officer was unable to open it.

Perez did not know the combination. However, the officer reached into the compartment through the crack and removed the cloth bag.

The pouch contained 22 individual baggies of methamphetamine. Perez was arrested on drug charges.

During the drive to the police station, the officer read Perez his Miranda rights and took statements from him about the drugs. The officer maintained that Perez told him the drugs were his and he planned to sell them. Perez later claimed that he was not read his rights during the drive and had said the drugs were not his.

Defense Filed a Motion to Suppress 

Perez’s defense attorney filed a motion to suppress both the drugs and Perez’s statements to police. Perez testified during a hearing that he had borrowed the car from a friend and had only been driving it for a short time when police stopped him. He further testified that he had no access to the glove compartment, did not have the combination to it, and had never been in it.

The court dismissed Perez’s motion and ruled the evidence admissible. A Mesa County jury later convicted Perez of possession with intent to distribute a schedule II controlled substance and possession of drug paraphernalia.

Perez received a 15-year prison sentence. He appealed his conviction, but the Colorado Court of Appeals denied it in 2009.

However, a case out of Arizona that made its way to the nation’s highest court soon would give Perez a second chance at clearing his name of the drug charges.

Arizona v. Gant

The Colorado Supreme Court reviewed Perez’s case following Arizona v. Gant, a 2009 U.S. Supreme Court decision pertaining to the Fourth Amendment warrant requirement for vehicle searches.

Legal precedent at the time of Perez’s arrest allowed law enforcement “to search the entire passenger compartment of a vehicle, and any open or closed containers within it, upon the arrest of any of its recent occupants.”

Citing the U.S. Supreme Court’s opinion in Arizona v. Gant, the Colorado Supreme Court held that “the search-incident-to-arrest exception no longer applies to cases where the arrested party has been secured by the police and cannot access the interior of the vehicle, unless it is reasonable to believe that evidence of the offense upon which the arrest is based might be found in the vehicle.”
Perez v. People, 231 P.3d 957, 959 (Colo. 2010)

Perez’s Conviction is Reversed

The Colorado Supreme Court found that the evidence leading to Perez’s initial arrest had no connection to the vehicle he was driving.

Because Perez was secured in a police cruiser and could not access the car, and because officers had no reason to believe that evidence of the offense of arrest was present in the vehicle, there was no justification under Gant to search Perez’s car after his arrest. Perez v. People, 231 P.3d 957, 961 (Colo. 2010)

Because the drug charges stemmed directly from the officer’s illegal search, Perez’s conviction could not stand.

The court reversed Perez’s conviction and remanded the case to district court for a new trial:

“Under Gant, the search of Perez’s car was unlawful and any evidence discovered in that search must be suppressed. Evidence of the drugs found in the glove compartment is therefore inadmissible. Because Perez’s subsequent statements about the drugs are the fruit of this unlawful search and are not sufficiently attenuated from the illegal police conduct, they too must be suppressed.”
Perez v. People, 231 P.3d 957, 964 (Colo. 2010)

Defenses for Selling or Buying Drugs

Entrapment Defense

In Colorado, entrapment occurs when a law enforcement officer persuades an otherwise law-abiding citizen to commit a crime.

Unlike your Fifth Amendment right to not incriminate yourself, you do not have a constitutional right to an entrapment defense. Since the entrapment defense is not covered by the U.S. Constitution, states are left to define it.

Colorado law holds that:

The commission of acts which would otherwise constitute an offense is not criminal if the defendant engaged in the proscribed conduct because he was induced to do so by a law enforcement official or other person acting under his direction, seeking to obtain evidence for the purpose of prosecution, and the methods used to obtain that evidence were such as to create a substantial risk that the acts would be committed by a person who, but for such inducement, would not have conceived of or engaged in conduct of the sort induced. C.R.S. § 18-1-709

Click here for R&H’s guide to how an entrapment defense can be used to beat drug charges.

Procuring Agent Defense

You can use the procuring agent defense if you have been charged with selling drugs. This defense was first established in the 1976 Colorado Supreme Court case People v. Fenninger.

The legal theory behind the procuring agent defense is the defendant acts as the buyer’s agent/representative to find drugs to purchase. Since the defendant is conspiring to purchase drugs, they cannot be convicted of selling or conspiring to sell them.

Let’s take a look at how this defense was used in People v. Fenninger.

Background on the Case

David Fenninger met an undercover Colorado Bureau of Investigations (CBI) agent outside a bar in Glenwood Springs. The CBI agent told Fenninger he “wanted to purchase large quantities of narcotics.”

Fenninger told the CBI agent he had connections in town and would try to set up a meeting with these people for the purpose of buying “dope.”

Over the next several months, Fenninger introduced the CBI agent to several people from whom the agent bought drugs.

The Sale, Arrest & Conviction

Fenninger eventually helped set up a meeting between the CBI agent and three heroin suppliers. Next, Fenninger accompanied the agent and the suppliers to a canyon outside Glenwood Springs. There, the undercover agent gave the suppliers $36,000 for one pound of heroin.

Fenninger was present for the sale, but he never possessed, transferred, or handled the money or the drugs.

As soon as the CBI agent paid for the heroin, Fenninger and the suppliers were arrested.

Fenninger was charged and subsequently convicted of unlawful sale of a narcotic drug with intent to induce or aid another to unlawfully use or possess the drug, as well as conspiracy to commit such a violation.

Conviction Overturned on Appeal

Fenninger appealed his conviction all the way to the Colorado Supreme Court. His criminal defense attorneys helped him beat drug charges based on the procuring agent defense. The state supreme court overturned his conviction. It held that Fenninger acted as the undercover agent’s “representative” in meetings with the suppliers.

“[Fenninger] was prompted by the buyer to introduce him to potential suppliers. The defendant was also to be paid directly by the buyer, the undercover agent here, for his services in procuring a purchase. The defendant was not acquainted with the suppliers before the purchase negotiations. He did not know where the drug was stashed. The suppliers regarded defendant as the buyer’s representative.

The only evidence which arguably links defendant to the suppliers was that he was a conduit for messages from them to the buyer, a fact which is inconsequential, since relaying terms of the deal was part of [Fenninger’s] function as agent for the buyer.”
People v. Fenninger, 191 Colo. 334, 337, 552 P.2d 1018, 1019 (1976)

When the Procuring Agent Defense Does Not Apply

You cannot use the procuring agent defense if you are facing drug charges for dispensing illicit substances. In such cases, the proscribed activity is the transfer and delivery of the drugs rather than their sale. However, this defense has not been disavowed in cases where an individual is charged exclusively with selling narcotics. People v. Fenninger, 191 Colo. 334, 335, 552 P.2d 1018, 1019 (1976)

Colorado Criminal Defense Attorneys

You risk incarceration, serious fines, and loss of personal rights if you choose to defend drug charges on your own. Our criminal defense attorneys have represented countless people accused of various drug crimes and we’ve beat drug charges. We will be your greatest allies throughout the entire process. Call 303-688-0944 to begin your case assessment.

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