A large part of our practice is focused on representing people charged in felony drug cases including possession, delivery, and conspiracy. This post breaks down the basic types of drug investigation and the tactics investigators commonly use.
The random (or not so random) stop
At any given time about half of the cases in our files revolves around some variation of the following facts. A car or person is stopped by the police for some reason. Maybe you were speeding, maybe you were riding your bicycle at night without a light, or maybe you were walking on the sidewalk and looked at the passing squad car enough times where the officer deemed your behavior ‘suspicious.’ In any event, the officer stops you, and finds some reason to conduct a limited search, discovering drugs. A surprising number of people stopped for extremely minor traffic investigations also tend to be those that an officer suspects of having drugs…what a coincidence that so many drug suspects are stopped for a defective license plate lamp.
But wait, the officer didn’t just find drugs. He also found a scale, four gem bags, and $213 in cash in your wallet. In his training and experience, the officer is now ready to testify that you are a drug dealer. The officer may seize your cell phone and have it searched for any texts or Facebook messages consistent with drug activity. In some cases, a traffic stop is followed up with search warrants for your home or workplace.
The controlled buy
The controlled buy is the second most common basis for a felony drug prosecution. It goes something like this. The police work with a confidential informant to arrange a drug transaction. The informant calls (on a line recorded by the police) texts (also recorded) or sends a social media message (you guessed it, recorded) to another person to arrange a drug transaction.
Before the buy police wire an informant to listen, and oftentimes watch, a drug delivery. The devices vary, but are often disguised as shirt buttons, watches, jewelry, glasses, pens, key fobs, and non-fabric components of clothing or a hat. Police also have access to normal looking vehicles with concealed cameras and microphones inside of the radio or heating/cooling vents. The informant is searched (usually a simple search of pockets, socks, and a patdown of clothing) and given buy money that has been copied so it can later be identified by its serial number.
Oftentimes police request to buy an amount of drugs that will trigger a certain felony level in Wisconsin. For example, in methamphetamine cases, police informants often ask to buy 3.5 grams of methamphetamine because that amount allows prosecutors to charge a higher level felony. In certain jurisdictions, particularly the City of La Crosse, police will conduct multiple buys so that prosecutors will be able to charge multiple separate counts of delivery when a defendant is ultimately arrested. They do this so a suspect will be facing more prison exposure and use it as leverage to pressure a newly-arrested suspect into informing against higher-level targets.
Someone arrested following a controlled buy should almost always refuse to speak with police and ask for a lawyer to be present for any conversation. If a suspect is taken to jail he should be aware that the police will be listening to phone calls, video visits, and will sometimes plant an informant in the jail blocks to report back to investigators.
The “Knock and Talk”
This is what happens when drug investigators suspect someone is selling drugs, but they don’t have evidence to take the case any further. You’ll recognize this tactic when a pair of officers show up at your front door. They’re friendly and talkative, and just want to help clear you of any suspicion. And to clear you of all the wrongdoing they know that you’re falsely accused of, the officers ask to come inside and have a quick conversation. But wait, what’s that? The odor of burnt marijuana in your living room!? FREEZE, you’re under arrest! While you wait in handcuffs, officers get a warrant to search your house and soon enough you’re charged with a felony drug offense.
The anonymous or confidential informant tip
Also common is an anonymous or confidential informant tipping off police that a certain person will be transporting drugs at a certain place and time. Police act on these tips and stop and arrest the suspect.
Both the U.S. and Wisconsin Supreme Courts have established strict rules on when police can stop or search a person based solely on an informant’s tip. Generally speaking, the more specific and predictive a tip is, the better chance an officer has at justifying a stop and search. Known informants, particularly those that have been reliable in the past, are also given more favorable treatment than totally anonymous callers. In a surprisingly high (no pun intended) number of cases a tip is too general and judges are forced to throw out evidence located during a stop based on a tip.
Dog sweeps & aerial surveillance
The air outside of your home, vehicle, storage units, and business is not private. Nor is the airspace over these locations. Occasionally investigators will walk a police dog outside of an area where they suspect drugs are contained (although there are limits; for instance, officers can’t bring a police dog onto the porch of your home to conduct a search), and if the dog alerts, the officers seek out a warrant. In certain places, like a school or workplace with a limited expectation of privacy, the officers don’t even need a warrant to search further.
Another tactic is use of a plane or drone to fly in the airspace over an area where a suspect may be growing marijuana, producing methamphetamine, or concealing contraband. The Wisconsin State Patrol has two planes sometimes used for this purpose and many Police Departments, including the City of La Crosse, have drones that can fly overhead and identify marijuana grows and other drug operations.
Target investigations
Targeted investigations are used when “buy-bust” isn’t enough. If you’ve ever seen The Wire, that’s what we’re talking about. Large-scale targeted investigations are rare, but produce many of our most serious drug cases. In this type of investigation police take multiple approaches, but oftentimes employ some form of the following tactics:
• Obtaining uncorroborated accusations (they call it “intelligence”) from informants who claim to have knowledge of a drug operation;
• Surveilling a suspected drug location, either in person, with the use of informants, or with modified trail cameras that are fixed on trees, utility poles, or other locations;
• Using informants to conduct controlled buys on the target or others suspected of working with the target;
• Recovering trash (this is totally legal for police to do without a warrant) and looking for evidence of drug trafficking including gem bags, baggie corners, foil, paraphernalia, and drug residue;
• Subpoenaing utility bills (common if an indoor marijuana grow is suspected);
• Stopping vehicles driving away from suspected drug houses for minor traffic violations and noting evidence of drug possession;
• In rare cases, wiretaps and PEN registers of target cell phones (Wisconsin has strict requirements that limit widespread use of this tactics in drug investigations);
• GPS tracking of suspect vehicles with a detachable GPS monitor (which requires a search warrant signed by a judge or court commissioner). The La Crosse Police, Sheriff, and Division of Criminal Investigation have all used this tactic in La Crosse County.