Home » Areas of Practice » Criminal Defense » Possession
South Dakota no longer requires physical possession of drugs for a conviction, instead, possession is deemed to be either physical, or in your urine or blood stream. Arrests for possession often involve a stop of a vehicle or entry into a home. The following scenarios have resulted in evidence being thrown out and charges dismissed for clients of Bratland Law:
1. Vehicle searched without probable cause to search vehicle. Passengers have rights and law enforcement cannot search
vehicle without consent or probable cause. Law enforcement has failed to advise clients they have the right to not
allow the search in some instances.
2. Law enforcement entering residence without warrant or consent on grounds that marijuana was visible from entry way. Upon entry, law enforcement searched the entire residence and defendant was charged with possession of a controlled substance. Several cases like this were dismissed on the grounds of an unlawful entry and search of the residence.
3. Additionally, in the DWI cases described above, any charges for possession of marijuana or a controlled substance were dismissed as the result of an unlawful stop of a vehicle, under the 'fruit of the poisonous tree doctrine' meaning if the stop or search was unlawful, everything found as evidence is unlawful.
4. Failure to mirandize defendants - Law enforcement does not have to read you your rights, but if you are in custody (not free to leave, usually pretty straightforward, ie, you're handcuffed in the squad car) and law enforcement questions you and you provide evidence against yourself, the evidence (statements) cannot be used against you. This has resulted in several cases being dismissed.