Drugs, Lies, and Videotape

In State v. Pulley, released today, the SC Supreme Court reversed a conviction for trafficking crack cocaine, finding that the drugs should have been suppressed when the state failed to establish the chain of custody at trial.

The facts of the case and the testimony presented at trial shows that the trial judge allowed the drugs into evidence based on a number of assumptions as to what happened to the drugs between the traffic stop and the drug drop box at the police department, and it shows what appears to be a number of lies by the officers, contradicted by the videotape, in an attempt to save their case.

Although the Court declined to reach the issue, it also appears that the drugs should have been suppressed pursuant to Arizona v. Gant – again, the officers’ testimony as to their probable cause for the search of the vehicle after an arrest for driving under suspension was contradicted by the videotape…

How Does the Prosecutor Establish a Chain of Custody?

Let’s be clear – most trial judges will go out of their way to not suppress drugs at trial. And, the caselaw on chain of custody leaves a good bit of wiggle-room and allows for some assumptions to establish a chain of custody “insofar as is practicable.”

This case, however, was a comedy of errors by the prosecution that was just too much for the Supreme Court to accept (although the trial judge was fine with it).

Ordinarily, one officer on the scene will take possession of any drugs or contraband found, and they will transport it to the police department. At the police department, they will either hand it to the evidence custodian or they will place into a locked “drug drop box.” The evidence custodian will then, at some point, transfer the drugs to a chemist who tests them.

Each time the drugs change hands, there is a chain of custody form that is completed that details who is handling the drugs – these forms are critical evidence to establish a chain of custody at trial since most officers will not remember every detail from every case years after the arrest was made.

Assumptions Do not Establish a Chain of Custody

In this case, there were two officers and an evidence custodian who gave conflicting testimony as to the chain of custody:

  • Officer Craven testified that the drugs were “placed in evidence” at the police department;
  • Officer Brewer testified that he did not take the cocaine from the scene;
  • Brewer testified that Craven took possession of the drugs, but he didn’t know how the drugs got to the police department; and
  • A chain of custody form stated that the evidence custodian received the drugs from Craven in person, but the evidence custodian testified that was not true and they write “in person” on all chain of custody forms.

Even after the prosecutor stipulated that they had introduced no evidence establishing what happened to the drugs at the scene, the trial judge admitted the cocaine into evidence, based on the assumption that Craven transported the drugs to the station:

[E]ven though Officer Brewer did not testify that he handed the bag to Craven . . . the logical assumption is that he did. Officer Brewer is the last officer on the scene. I would be very surprised that Officer Brewer would have driven off from McDonald’s with the bag of drugs on his hood. Presumably, he had to take possession of it and then turn it over to Craven at some point.

The next day, the prosecutor recalled officer Brewer, who testified that he now remembered that he took the drugs from the scene and transferred them to Craven at some point after that… Brewer testified that he remembered this after reviewing the videotape.

Brewer did not sign any paperwork indicating that he took drugs from the scene or transferred them to Craven, and the Supreme Court notes that the videotape “does not reflect that.”

Based on the inconsistencies and contradictions (read: police officers lying on the witness stand), the Supreme Court found that the trial court’s assumptions were not enough to establish a chain of custody and reversed the conviction.

Arizona v. Gant – the Drugs Should Have Been Suppressed Anyway

Pulley was stopped because the officer said that he recognized him and knew that he was driving without a license.

The car was parked legally on private property (McDonald’s), was not interfering with traffic, and the department policy for towing vehicles was not followed. Because it was not likely that further evidence of driving under suspension would be found in the car, there was no basis to search the car unless: 1. There was independent probable cause (see below); or 2. The car had to be towed and an inventory search was necessary.

The officers testified that they discovered marijuana on Pulley’s person and that was independent probable cause for Pulley’s arrest. But, the video of the incident showed that the first mention of the officers’ finding marijuana on Pulley was after Pulley was in the back seat of the patrol car and after the officers searched Pulley’s car.

The officers testified that they found the marijuana on Pulley during a struggle with him, and then they put the marijuana back in Pulley’s pocket… therefore, it was found before they searched the car and they had probable cause for the search. Sounds reasonable, right? Officers often find drugs and then put them back in the suspect’s pocket, right?

Let’s be clear – it is extremely unlikely that the Court would suppress based on this testimony. Courts tend to accept a police officer’s testimony, no matter how obvious the lie they are telling, even in the face of video evidence that contradicts the officer… In a perfect world, with honest police, prosecutors, and judges, the evidence would have been suppressed pursuant to Arizona v. Gant with an admonition to the officer and prosecutor.

Drug Crimes Defense Lawyer in Charleston, SC

Grant B. Smaldone defends clients accused of crimes, including trafficking in cocaine, in the Charleston and Eastern SC area. If you’ve been charged with drug trafficking in Charleston, call now at (843) 808-2100 or send us a message on our website to discuss your case.