Defending Interstate Drug Crimes from Start to Finish
JOHN S. BERRY &
CHAD J. WYTHERS
BERRY LAW FIRM, LINCOLN NEBRASKA
Table of Contents
Chapter 1: The Familiar Drug Bust Story
Chapter 2: Getting Out On Bond
Chapter 3: Preliminary Hearing
Chapter 4: Arraignment
Chapter 5: Discovery
Chapter 6: The Suppression Hearing
Chapter 7: Plea Agreements
Chapter 8: Trial
Chapter 9: Sentencing
Chapter 10: Appeals
The Berry Law Firm has represented persons charged with crimes since 1965.
A significant part of our practice involves federal and state drug cases.
While our office regularly handles federal and state drug conspiracy,
manufacturing and intent to distribute cases, we believe that some of
the most important cases are interstate drug stops particular on Interstate 80.
Over the past several years we have seen the Fourth Amendment rights of
those traveling on the Interstate erode. Our mission as defense lawyers
is to support and defend the constitution. While John Stevens Berry and
John S. Berry have supported the constitution as army officers deployed
in combat zones, they believe the need to support and defend the constitution
at home is equally important. The attorneys at the Berry Law Firm have
successfully argued Fourth Amendment issues and had illegally obtained
evidence suppressed in state and federal courts.
Chapter 1: The Familiar Drug Bust Story
Often vehicles with out-of-state plates are stopped for a minor traffic
violation. The officer requests the driver’s license and registration
and invites the driver to the passenger seat of the officer’s cruiser.
The driver is then asked a series of questions and a check on criminal
history and warrants known as a “Triple I” is run by the officer.
The officer engages in what is known as “casual conversation”
with the motorist. After a short period of time, the information from
the Triple I comes back and the officer hands the license and registration
back to the driver and explains that the traffic stop has been completed
and issues a warning or a traffic ticket. This should be the end of the
traffic stop. However, most of the time, it is not.
After the license and registration are returned, the motorist is asked
to answer additional questions. The officer asks questions about transportation
of drugs or illegal weapons and eventually requests permission to search
If permission to search is denied, the officer may claim to have reasonable
suspicion to detain the motorist while waiting for a drug dog to arrive
to sniff the vehicle.
Once the drug dog arrives the handler allows the dog to sniff the vehicle.
In Nebraska the dogs used to search vehicles are known as passive indicators.
This means that when the dog smells the odor of drugs the dog will find
the strongest odor and sit. Once the dog sits, the officer claims he has
probable cause to search the vehicle and the vehicle is searched regardless
of consent. At this point, the driver and passenger are likely in the
back seat of cop car. In many cases, the driver and the passenger converse
about what has happened and any incriminating information is caught on
the officer’s recording camera in the vehicle. The motorist and
any passengers are then taken to the local jail where they are booked
and processed until they can appear before a judge. Eventually the motorist
appears before a judge who sets the bond.
Chapter 2: Getting Out On Bond
Once the motorist has been arrested, he has the right to have a reasonable
bond set. In Nebraska, regardless of whether the drugs seized during the
stop were marijuana, cocaine, methamphetamine, heroin, K2, or any other
controlled substance the motorist is generally booked into the local jail.
After the booking process the police reports will go to the prosecutor
who will determine which crimes will be charged. Eventually the defendant
is brought before a magistrate judge who sets bond.
When setting the bond, the judge will consider several factors including:
- Defendant’s prior criminal history,
- Ties to the State of Nebraska,
- Potential flight risk,
- Danger of harm to self or others; and
Severity of the charges and the allegations made which could include:
- whether there was a weapon involved,
- the amount and type of drugs found in the vehicle, and
- whether the defendant was disruptive during the arrest
The judge will review the probable cause affidavit, which is a brief description
of the arrest and probable cause for the arrest. The prosecutor will suggest
a bond amount and the defense attorney will have the opportunity to request
an amount as well. Then the judge will set bond.
If the defendant cannot afford the bond or feels that the bond set was
not reasonable, the defendant can request a bond review. At the bond review
hearing, the defense attorney asks the judge to reconsider the bond amount
and states specific reasons why the bond is not reasonable and/or unconstitutional.
Once bond has been set it can be paid by the defendant. Often those stopped
on Interstate 80 do not live in the State of Nebraska and rely on others
to send money to have them bonded out. In most cases the person bonding
out the defendant either wires money to an attorney’s trust account
(through bank or credit card) to be used for bond, or brings cash. The
jails in Nebraska do not accept personal checks or credit cards for bond payments.
Once the bond money is paid the defendant is released pursuant to conditions
of bond and is processed out of the jail. In most counties in Nebraska
the defendant is allowed to leave the state while his case is pending.
It is important to note that while most marijuana cases are prosecuted
at the state level, interstate drug stops involving a significant amount
of cocaine, heroin, crack, methamphetamine, or other hazardous drugs are
often pursued by the federal government. However, the federal indictment
usually does not occur until after state charges have been filed. Most
of the time, once federal charges have been filed, the state charges are
In the Nebraska Federal Criminal Judicial System, defendants rarely post
bond. They are generally either given pretrial release or detained pending
trial. In most cases where someone is indicted for an interstate drug
stop and charged with a federal crime, they will appear before a federal
magistrate judge. After the initial charges are read, a detention hearing
is held to determine whether the person should be detained or released
subject to specific conditions. These pretrial release conditions may
include living in a specific residence, drug treatment, and any other
conditions imposed by the court.
Often in interstate drug stops involving a significant amount of drugs
the court will require a third party custodian to provide supervision
subject to release while the case is pending. A third party custodian
has several duties and is often a close relative or family member of the
Chapter 3: Preliminary Hearing
The next tactical decision that the defendant and his criminal defense
lawyer have to make in an interstate drug stop case is whether to have
the preliminary hearing or whether to waive it in exchange for police
reports. Almost every time a motorist and his passenger are stopped on
the interstate and a large amount of drugs are found in the vehicle the
driver and all passengers are charged with a drug trafficking crime. At
the preliminary hearing the burden is on the government to establish probable
cause that a crime was committed and that the defendant committed the
crime. The standard for probable cause is low. The officer merely has
to establish well grounded facts to show that the crime was committed
and that the defendant committed the crime.
The real purpose of a preliminary hearing is just to determine whether
there is enough evidence for the case to go forward. If the court determines
that there is enough evidence the case will be bound over to the district
court. Unfortunately in the preliminary hearing stage the magistrate does
not have the authority to determine whether a stop or search of a vehicle
was in violation to the defendants Fourth Amendment right or whether the
state can actually prove the case beyond a reasonable doubt. At the preliminary
hearing the magistrate’s job is simply to determine whether the
case should go forward. In interstate drug cases the magistrate almost
always finds that there is enough evidence to bind the case over to the
district court for both the driver and all passengers of the vehicle.
In certain types of criminal cases the preliminary hearing can be a useful
discovery tool. However, in most interstate drug stop cases, the preliminary
hearing has limited discovery value especially when the defense attorney
does not have access to the officers’ reports. Generally only one
officer will appear at the preliminary hearing and rules of evidence do
not apply. After the preliminary hearing, the interstate drug stop case
will be dismissed or bound over to the district court and set for arraignment.
Chapter 4: Arraignment
The arraignment is the procedural step where the defendant pleads guilty
or not guilty. In some cases where there is a defect in the charges the
defendant may file a plea and abatement, a plea in bar, or a motion to
quash prior to the arraignment. However, most interstate drug stops raise
fourth and fifth amendment issues that the court will not hear until after
Once the defendant pleads not guilty at the arraignment he is generally
given 14 days to file motions for discovery.
In many jurisdictions in Nebraska the district court allows an arraignment
by written waiver. The written waiver is signed by the defendant and the
attorney. The defendant acknowledges that he understands the charges and
his rights and the attorney acknowledges that he represents the defendant.
Chapter 5: Discovery
In most Nebraska Criminal cases, it is not until after the arraignment
that the defendant receives discovery materials from the prosecution.
Discovery materials for an interstate drug stop generally include police
reports and audio and video recordings of the traffic stop, drug dog search,
officer search, and interrogations.
Because many Nebraska state troopers and deputies wear microphones on their
uniforms most of the police-citizen encounter is caught on tape. Most
of the cruisers also have the ability to record what happens in the interior
of the patrol cars. In many cases co-defendants are placed in the back
of one patrol car and their conversations are recorded and later used
against them. Sometimes the police reports and audio video recordings
do not tell the whole story. In these instances attorneys may need to
attain dispatch logs, the performance records of a drug dog, or other
information that may show law enforcement did not lawfully stop or search
In Nebraska state felony cases the defendant may take depositions of witnesses
including police officers. Depositions can be a great discovery tool and
can aid in preparing for a suppression hearing. Furthermore, when the
state uses drug dogs or alleged expert witnesses the information obtained
in a deposition can go a long way in preparing a suppression hearing that
results in the suppression of illegally obtained evidence.
Chapter 6: The Suppression Hearing
In any interstate drug stop case the fourth amendment right of the defendant
is at issue. At a suppression hearing the government bears the burden
of proving that the traffic stop, detention, questioning, and search did
not unlawfully produce the evidence the government intends to use to prove
the defendant’s guilt.
In order for the traffic stop to be valid, the officer must have probable
cause to believe that a traffic violation has taken place or reasonable
suspicion that criminal activity is afoot. Sometimes a defendant will
argue that his conduct did not constitute a traffic violation and that
the officer’s mistake as to the law regarding the traffic violation
did not give probable cause for the stop. In other cases the issue is
whether the officer had probable cause to believe that a traffic violation
occurred (which is usually recorded on his front dash video camera).
Often the questioning of an out of state motorist during a routine traffic
stop can exceed the scope of the stop. In other words, law enforcement
will stop a vehicle for a minor traffic violation and proceed to ask irrelevant
questions, unnecessarily and unlawfully detaining the driver and/or passenger.
In Nebraska, law enforcement can ask about the purpose and destination
of travel and may also run a Triple I report to check wants, warrants,
and criminal history. However, when the questioning is outside the scope
of the traffic stop, a detention based on that questioning may rise to
the level of unlawful detention. If a motorist is unlawfully detained,
evidence obtained pursuant to the illegal detention must be suppressed.
Officers in Nebraska will often times ask permission to search a vehicle.
Some drivers consent, some do not. However, the matter becomes complicated
when the law enforcement officer makes it appear as though the driver
has no choice but to consent to the search. In some cases the officer
may make it appear that if the defendant does not consent to the search
a dog will be called and will sniff the air around the vehicle and determine
whether a search will occur. If the officer does not have reasonable suspicion
to detain the driver at that point an officers’ statement that the
driver can either wait for a drug dog or consent to a search immediately
may create an unlawful detention. The legal remedy at this point is to
exclude any and all evidence obtained pursuant to the unlawful detention
and invalid consent.
The Unlawful Search
In some instances where law enforcement may have reasonable suspicion to
detain, they do not have probable cause to search... but search regardless.
In one instance I represented a man who was the passenger of a vehicle
and had a suitcase that contained 50 pounds of cocaine. The officer asked
his brother, the driver, permission to search. The brother only gave permission
to search the vehicle and his own bags, not my client’s bags. The
officers then proceeded to place my client in the back of the cruiser
and search my client’s bags without his permission. The officer
claimed that he had permission from the brother. However, the court found
the consent of the brother invalid and all evidence found in my clients
luggage illegally obtained.
As discussed in the previous paragraph pertaining to the scope of questioning,
an officer may only detain a motorist as long as it takes to effectuate
the purpose of the traffic stop. In other words, police cannot unreasonably
detain someone during a routine traffic stop. Furthermore, once the routine
traffic stop is complete the driver is free to go unless law enforcement
has reasonable suspicion to believe that criminal activity is afoot or
has probable cause to arrest. Most of the time law enforcement ask questions
during the traffic stop in an effort to build suspicion. This can include
questioning both the driver and the passenger about their travel plans.
If law enforcement has reasonable suspicion that criminal activity is
afoot they may detain the driver and all occupants of the vehicle and
call for a drug dog to establish probably cause to search.
The duration of the detention while waiting for the drug dog must be reasonable.
Based on court rulings it appears that about an hour is a reasonable amount
of time. However, time of the detention is only one of many factors. The
bigger question is whether the officers had reasonable suspicion to detain
the driver and/or his passengers in the first place. Reasonable suspicion
is an objective suspicion based on facts and circumstances that criminal
activity is taking place. An officer’s hunch that a vehicle is transporting
drugs is insufficient to detain the vehicle’s occupants.
Even if law enforcement has reasonable suspicion to detain the defendant
that doesn’t mean they have probable cause to search the vehicle.
In most cases, where valid consent to search is not given and probable
cause cannot be established through other means, law enforcement will
contact a drug dog handler and have a drug dog brought to the scene to
sniff the vehicle. If the dog indicates to the odor of narcotics law enforcement
will have probable cause to search the vehicle even though they may not
have consent. However, drug dogs are not always accurate and in some cases
evidence obtained through the search using a drug dog may be suppressed
if the drug dog is found to be unreliable or found to have not indicated
on the drugs.
In Nebraska most drug dogs are trained as passive indicators. This means
that when a drug dog walks around the car he will sniff for the source
of contraband. At the area where the odor is strongest he will show an
interest. This is what handlers refer to as an alert. After the dog alerts
he will sit down at the location of the strongest odor of the contraband.
The sitting action is the indication. This is what handlers refer to as
an alert. After the dog alerts he will sit down at the location of the
strongest odor of the contraband and the sitting action will be the indication.
While in the past aggressive alert dogs were used, it was found that because
they would paw and scratch it would damage vehicles. The passive indicating
dog that sits at the greatest odor of the contraband causes less harm
to the vehicle. When analyzing these cases the first issue to review is
whether the dog actually indicated. In some cases it appears that the
dog did not sit down or was either intentionally or unintentionally cued
by the dog handler. An officer can certainly give commands for the dog
to sit but some dog handling experts believe that officers often unintentionally
cue the dog.
The general issue in determining whether a dog sniff established probable
cause to search a vehicle is whether the dog is reliable. The dog's
reliability may be established through training and field records. Criminal
defense attorneys often request these records through the discovery process.
After reviewing those records we can determine a reliability rate of the
dog. Additionally, criminal defense attorneys often hire expert witnesses
to help analyze data to provide an outside perspective on whether the
dog was accurately trained and whether the dog actually indicated to the
odor of drugs.
The Inherent Unreliability of a Drug Dog
It is important to understand that the drug dog is trained to alert to
the odor of narcotics. This does not necessarily mean that narcotics are
present, only that narcotics were present in the past or that the odor
of narcotics is present. While the courts have found that a dog indicating
to the odor of drugs is sufficient for search it is important to recognize
that drug dogs can falsely indicate to an odor where no drugs are present
because they are only indicating to the odor. This makes analyzing the
dog’s records problematic in many instances because officers will
claim that even though no drugs were found the odor of the drug can be
present. In other words there may not much by way of scientific basis
to validate the officers theory as to the reliability of his own dog.
On the other hand, if it is shown through other cases that the dog has
been accurate in the past, the dog will likely be found reliable by the court.
Other Probable Cause
In some cases, law enforcement notices drug paraphernalia in the vehicle
or marijuana within plain view. Law enforcement will claim to see crumbs
or what is known as marijuana “shake” in a vehicle. They will
then claim because they see the presence of marijuana in the vehicle that
they had probable cause to search. Another example of when law enforcement
has probable cause to search is when they ask if the driver has any drugs
on his person and the driver says he only has a personal amount of marijuana.
The officer then may search the entire vehicle based on the personal amount
A couple of years ago we argued at the Nebraska Supreme Court the law enforcement
had badgered our client about whether he had personal use marijuana so
relentlessly that he appeared to be in custody and his fifth amendment
right that protected him from self incrimination and the fact that he
was not mirandized was enough to have his statement thrown out and the evidence.
Chapter 7: Trial
In most interstate drug stop cases the case is won or lost at the suppression
hearing. In other words if the stop, detention, or search was illegal
any evidence found pursuant to that illegal stop, detention, or search
must be suppressed and the government will not have enough evidence to
pursue its case at trial.
However, if the evidence is not suppressed the government still must prove
that the person it wishes to convict had knowledge that the drugs were
in the vehicle. This is known as the Constructive Possession Doctrine.
Essentially the theory is that if you know drugs are in the vehicle and
you can exercise dominion or control over them that you can be found guilty
or possession (or possession with intent) or aiding and abetting. However,
in some cases it is clear that one of the occupants of the vehicle knew
about the drugs and it is questionable as to whether other occupants did as well.
When interstate drug stop cases are taken to trial, the jury must determine
whether the occupant of the vehicle that is being charged knew the drugs
were in the vehicle. In some cases, the driver will admit to having knowledge
and testify that the passenger had no knowledge. While prosecutors will
often charge both the driver and passenger in these cases, the passenger
may have a decent shot at trial depending on specific facts and statements
made during the traffic stop. Over the years we have handled several cases
where one party accepts responsibility upon law enforcement finding drugs
in the vehicle and vows that his or her traveling companion had no knowledge
of the hidden drugs.
Another issue that often goes to trial is whether the occupant of the vehicle
is guilty of simple possession or possession with intent to distribute.
As an example, a person stopped on the interstate with 12 ounces of marijuana
can be charged with the misdemeanor offense of possession of marijuana
more than one ounce but less than one pound. In Nebraska the penalty for
this offense is up to a year and jail and a up to a $1,000.00. However,
prosecutors often charge this type of case as a possession with intent
to distribute case. The issue at trial is whether the marijuana is for
personal use or whether the weight of the drug along with other evidence
proves beyond a reasonable doubt that the person possessing the marijuana
intended to sell or distribute some of it. Often, the prosecution will
argue that the presence of scales and baggies are evidence of the intent
Chapter 8: Plea Agreements
The prosecution generally makes a plea offer prior to the suppression hearing.
In this instance, the prosecution will likely threaten to revoke the plea
offer if the defendant goes through with the suppression hearing. In most
cases if the prosecution loses the suppression hearing there is no trial.
On the other hand, the prosecutor also knows that if he wins the suppression
hearing he will win the trial. One of the toughest decisions in an interstate
drug stop case is whether to take a plea offer prior to having a suppression
hearing. As criminal defense attorneys, we always prefer to challenge
the government at the suppression hearing. However, the decision as to
whether to take any deals ultimately belongs to the client and not the
attorney. While we have a duty to advise our clients as to whether the
deal is good or not, we must present any plea offer to the client and
let the client decide.
The most common drug found during interstate drug stops in Nebraska along
Interstate 80 is marijuana. Those transporting marijuana are generally
charged with possession with intent to distribute which carries a term
of 1-20 years in prison. In some jurisdictions, prosecutors, on a case
by case basis, will offer a reduced charge or possession of marijuana
more than one pound. Depending on the facts of the case and whether there
are any decent suppression issues this can be a fair deal. The simple
possession of more than one pound is a Class 4 Felony which carries a
term of 0-5 years in prison. However, the way the statute is written the
maximum sentence imposed is 20-60 months. In Nebraska, a person who receives
a maximum sentence on a Class 4 Felony is eligible for parole after 10
months. Furthermore, because there is no minimum sentence the court does
not have to impose a sentence of imprisonment and can give county jail
time, probation, or a fine.
Some prosecutors may offer a reduced charge from a Class 3 (1-20 years)
to a Class 3A (0-5 years). The difference between a 3A and a Class 4 Felony
is that the 3A is straight 0-5 which means under the maximum term the
defendant could get 2 ½ years before being eligible for parole.
However once again there is no minimum sentence on a 3A felony.
Interstate Drug Stops Involving Cocaine, Methamphetamine, Heroin, Ecstasy
and other Hard Drugs
The potential sentencing for drugs other than marijuana is much more complicated
and much more serious. Often times if the interstate drug stop nets a
significant amount of methamphetamine, cocaine, heroin, etc. the United
States Attorney’s Office will pick up the case and the defendant
will be indicted in federal court and in most cases faces a term of 10-
Life depending on the quantity of drugs and several other factors. If
the matter stays in state court the penalties also drastically increase
for these types of drugs. Furthermore, if a firearm is found in the vehicle
when the drugs are found there is also a higher probability that the defendant
could face federal charges or additional state charges.
Federal plea agreements are much more complicated than state court agreements.
The federal sentencing guidelines are generally used as a starting point
for negotiations and will provide a sentencing range of months depending
on the weight of the drugs, criminal history, and a myriad of other factors.
While a sentencing judge can depart or deviate from the guidelines, some
prosecutors will require a defendant to waive his right to ask for a departure
or variance pursuant to the plea agreement.
Chapter 9: Sentencing
In Nebraska state court interstate drug cases if the defendant is out on
bond and pleads guilty pursuant to a plea agreement or otherwise he will
generally be released on bond while sentencing is pending. The sentencing
date is usually 6-8 weeks after the plea. During that time the defendant
will be interviewed by the probation office. The probation office will
write a report to the judge that will indicate whether the defendant is
eligible for probation. It is important to note that even if the defendant
is eligible for probation that does not mean the judge will order a sentence
In many instances prior to sentencing we recommend the client obtain a
drug and alcohol evaluation, begin treatment, and obtain character letters
to assist us in preparing an argument for probation or a minimal jail sentence.
We work out a detailed strategy with our client based the client’s
criminal history, employment, drug abuse history, and other factors to
argue for the best possible sentence.
Chapter 10: Appeals
As stated earlier, most criminal interstate drug cases are won or lost
at the suppression hearing. Many times if the suppression hearing is lost
the case is lost. In federal court the suppression issue can be preserved
without a trial through a conditional plea of guilty. A conditional plea
will preserve the 4th amendment arguments and the defendant may then appeal
the suppression issue to the 8th Circuit Court of Appeals.
State court appeals are preserved differently. In a Nebraska state court
criminal case the defendant must go through trial in order to preserve
the 4th amendment search and seizure issue. In most cases this is done
though a stipulated bench trial where a defendant stipulates to certain
facts, no jury is called, and the defendant asks the judge to reconsider
the motion to suppress.
At this point the judge will likely determine if there is sufficient evidence
to convict even though the defendant objects to the evidence based on
the suppression hearing and fourth amendment issues. The case goes forward
and may then be appealed to the Nebraska Court of Appeals.
While the appeal is pending we ask the court allow our client to post an
appeal bond. Courts are not required to set an appeal bond but may do
so at their discretion.
If the case if won on appeal it will be remanded back to the district court
with an order suppressing the evidence which will result in the case being
dismissed. If the appellate court’s ruling on the motion to suppress
is affirmed the case will be returned to the district court and the court
will then order the defendant to appear in court and/or report to the
jail or prison. However, the defendant may ask the appellate court to
reconsider its decision or file a petition for further review by the Nebraska
Interstate drug stops are fairly common in Nebraska. Contacting a criminal
defense attorney as soon as possible is usually the best course of action
after an arrest. Whether you will face federal or criminal charges depends
on a myriad of factors. Regardless, the issues in all interstate drug
stops are similar. A good attorney will attack the prosecution’s
case and thoroughly examine the traffic stop, including the scope of questioning,
the length of detention, whether there was reasonable suspicion for the
detention, and whether there was probable cause for the search. The key
is to thoroughly examine the case and consider all options before committing
to a strategic decision.