1975, May, Pg. 839. New Techniques in Defending Drug Cases.

• Author: by Bryan Morgan

4 Colo.Law. 839

Colorado Lawyer

1975.

1975, May, Pg. 839.

New Techniques in Defending Drug Cases

839Vol. 4, No. 5, Pg. 839New Techniques in Defending Drug Cases.by Bryan Morgan and William R. GrayThis article points out several defense strategies for narcotics cases in Colorado courts, other state courts, and federal courts. The authors believe that while none of the strategies is entirely new, too little attention may have been given them in the past by the Colorado defense bar. The article deals with defense techniques in challenging drug identification, challenges to a facially sufficient search warrant, and the procuring agent defense.

DRUG IDENTIFICATION TECHNIQUES

Defense counsel should insist on thorough verification of the techniques and methods used by the prosecution in proving the identity of drugs in federal and state prosecutions. Regardless of the nature of the drug, whether it be marijuana, opium or an opium derivative, or one of the more exotic forms of dangerous drugs (LSD, MDA), the prosecution's standard proof in establishing the identity of a contraband substance follows well defined routines.

Typically, the prosecution's proof is adduced through the testimony of a government chemist, often with only a bachelor's degree, who describes testing procedures which, according to professional or academic chemists, may be adequate only for field tests or for an initial screen to place the substance within a large chemical family.

The cost of preparing a full-scale drug identification defense is substantial and may be beyond the means of many defendants. However, if defense counsel gives to a private chemist a brief description of the method of proof used by the prosecution in establishing the identity of drug contraband, slipshod practices in the procedures used by the prosecution in its identification of the drug will often be identified and serious questions concerning the drug identification test itself will be raised-all useful for cross-examination.

For example, one of the most common methods used in identifying a chemical drug is the gas chromatograph test. This procedure involves a comparative analysis of the gas given off by burning the seized drug with the gas given off by a sample of a known drug. If the graph tracings are made on different machines in the testing laboratory, as happens more often than one might suspect, there exists a serious possibility of error in the conclusion.

Another more exotic form of potential error in testing procedures involves the preparation of the known sample of the drug. For any relatively unusual drug, samples of the drug in its final form generally are not available and must be prepared through chemical processes by starting with another chemical in the same

840family. These processes must be done exactly, and certain steps must be followed, or the final sample of the known drug, although prepared from a properly identified chemical family member from the start, may be erroneous.These are only two examples of steps in the process where potential error may creep in. Any competent chemist (an industrial privately employed chemist, a consulting chemist, a member of a private consulting drug identification firm, or an academic chemist) can provide you with much more ammunition.

One last point to consider, should you embark on a challenge to the government's identification of the suspect drug, is the matter of mutual discovery. Under both the Colorado mutual discovery rules and the federal discovery rules, it is reasonably clear that if the defense intends to controvert the government's identification of the suspect drug by defense witness tests, the defense expert's findings and test reports and procedures are available to the government.

Perhaps the best way to use your own expert is to have him sit through the courtroom testimony of the government's expert witnesses on drug identification and assist you in cross-examining the government's witnesses to point out areas where potential errors in drug identification have occurred. If necessary, the defense witness can take the stand himself and testify as to these matters.

CHALLENGES TO THE FACIAL SUFFICIENCY OF AN AFFIDAVIT

We are all familiar with the standard rubric of the "previously reliable informer," who remains generally anonymous and beyond the reach of the defense counsel or the court and whose alleged information given to the police affiant is the critical investigatory step in building a case against a defendant. We submit that it is the responsibility of the defense bar, where a process inherently subject to abuse exists, to vigorously challenge criminal prosecutions based on the obtaining of evidence through the alleged representations of an anonymous informer.

Case law is rapidly developing at both the state and federal levels concerning the right of a criminal defendant to challenge the facial sufficiency of an affidavit or to obtain the disclosure of an anonymous informant's name. Regardless of the specific relief sought by an attempt to challenge the facial sufficiency of an affidavit, or the theories that you use in presenting your case, a detailed background investigation is necessary to produce the factual showing you need in presenting a successful challenge.

In preparing the factual basis sufficient for a successful challenge to the validity of an affidavit or for disclosure of an informer the things to look for are initially defined by the contents of the affidavit. The general rule is that a threshold showing of some sort must be made by one attempting to challenge the facial sufficiency of an affidavit, or to gain disclosure of anonymous informant, before defense counsel is entitled to an evidentiary hearing on the point. The physical facts alleged in the affidavit, such as locations, times, and presence of persons or physical objects, are the starting point for investigation. If you can show through your factual investigation that it was not physically possible that certain critical pieces of information alleged in the affidavit could have occurred, you may have grounds for a full hearing into a facially sufficient warrant.

The nature of the challenge that you must make is succinctly set out in federal law in the case of United States v. Carmichael.(fn1) That case held that a defendant may challenge the truth of hearsay evidence reported by the affiant in an affidavit, and could also challenge any statement of the affiant personally, including the affiant's representation that the informant's statements were in fact made.

Colorado case law supporting the discretion of the trial judge to proceed with an evidentiary hearing challenging the facial sufficiency of a warrant is found in People

841v. Arnold,(fn2) upholding the exercise of discretion by a trial judge in conducting an evidentiary hearing once the threshold showing was made and noting that this procedure has been employed by Colorado trial judges in the past.(fn3)We find no decision clearly articulating what constitutes a sufficient threshold showing that a facially sufficient affidavit is questionable enough for a court to entertain a full hearing on the subject or to order disclosure. In addition to the areas mentioned above, however, we believe the presence of the following factors may support the right to a hearing concerning the validity of information shown in the warrant.

With regard to physical facts alleged in the warrant which you wish to show by evidence were not possible at the time, you are frequently left only with the statements of your client, or close friends of your client, that material in the affidavit, either by the affiant or by an anonymous informant, is untrue. You can, of course, have your client take the stand and deny that certain facts alleged in the affidavit occurred, or could have occurred, but that leaves the finder of fact in the situation of believing either the defendant or the police affiant and his informant. The results of this balancing test are not hard to predict.

We therefore suggest that you make every effort to buttress the in-court testimony of your client regarding misrepresentations in the affidavit through other means. For example, you can again attempt to show through physical evidence that things alleged in the affidavit simply could not have occurred (e.g., one standing in the position described by the affiant, or the informant, could not physically see the things he said he saw, or testimony from people familiar with the premises that the door was locked on the occasion, or that the shades were drawn across a window on the occasion).

Other ways of buttressing your client's testimony are supporting his testimony through other witnesses to the...