“An area known for a high incidence of drug trafficking activity”
This phrase is frequently used by an arresting officer to describe the location in which he allegedly observed someone, with an inference being made that just because of the “area”, that any person observed in the “area” was either selling or buying drugs. Just as frequently, the officer provides no details or information to support his conclusion, or otherwise explain the basis for the officer using the term to describe the nature of the location. In a drug trafficking case, where the proofs are largely circumstantial, the phrase is often used as a justification for the officer taking further investigative steps that culminate in your arrest. When questioned at trial, the officer typically responds that he has patrolled the area for years and made numerous arrests for drug related offenses in that area.
How does your lawyer effectively counter the use of the phrase?
When this conclusion is part of the State’s case against you, you need the services of an experienced criminal defense lawyer like Howard W. Bailey or the other attorneys at Bailey & Orozco to protect your rights and your freedom. The initial question to be addressed by the defense attorney must be: is the ‘area’ designation based on a factual and ascertainable basis, subject to being duplicated and confirmed; or, is it based merely upon the officer’s own personal opinion? In other words, how is the State going to support the assertion that the “area” was known for drug trafficking? By an analysis of the arrest records for the last year; or, because the officer decided that the phrase sounded good in your case?
On examination, the “area” phrase may be broken into several inter-related issues that a criminal defense lawyer must separately examine to determine their validity. Among those issues:
- What are the boundaries of the ‘area’ being referred to by the officer?
- What constitutes a ‘high incidence’?
- What is being referred to by the term ‘drug trafficking’?
Requiring that the “area” being referred to be specifically defined (Street A to Street B, between Avenue 1 and Avenue 2) acts to limit the maximum area from which the qualitative and/or quantitative basis for the officer’s conclusion can be drawn.
The “high incidence” level should be evaluated against several concerns. These include: whether this designation was subjectively made by the officer, or objectively made by his department; what the standards are for determining what constitutes a high, medium or low incidence level; whether the ‘area’ designation is based upon confirmed information or unconfirmed anonymous tips; how often the designation is reviewed to determine whether the level of ‘incidence’ has changed; and, a review of the qualitative and/or quantitative analysis that constituted the basis for determining that this “area” merited a high designation on the date of the incident.
The term “drug trafficking” must be defined by an analysis that was done prior to the date of the investigation in which the phrase is being used, in order for an objective determination of the incidence level to have been made. How many arrests were made, during a specific time frame, for what type of drugs and what type of crimes were charged against those who were arrested?
The resolution of these issues can be critical in establishing that the officer’s characterization of the “area” is not accurate. If the “area” designation can be successfully challenged, the officers actions in relying on that ‘area’ characterization may then be challenged. As an experienced criminal defense lawyer like Howard W. Bailey would know, without an objective basis for the designation, any action taken by the officer would need a separate legal justification to support and can affect the State’s ability to convict you of drug trafficking.
