Nolle Prosequi
Recently, Mr. Shafer became the attorney for a young man charged with several felonies, including a charge of Possession with Intent to Sell MDMA.
After a canine alert, a Fed Ex package from the Netherlands with client’s address was intercepted at the airport in New York by Federal authorities.
Thereafter, local law enforcement was contacted. After receiving the package from Federal law enforcement, it was opened, and the contents tested. Detectives prepared an affidavit and obtained an “anticipatory” search warrant (allowing a search “anticipating’ that contraband will be found therein).
A local detective, dressed in Fed Ex garb and driving a Fed Ex truck, delivered the package to the front door of the listed address. Other units were waiting nearby. The brother of the client came to the door only after the “delivery man” left, retrieving the package and returning inside the residence.
After waiting to see if there were any calls about a suspicious package being left at the residence, a search warrant team executed the warrant. The package was in an area the client’s brother said was the client’s sleeping area. Of course, the brother claimed no knowledge of the package.
The client, who was not at home when the package was delivered nor when the warrant was executed, was called and returned home. He refused to answer any questions.
Thereafter, he was charged with several criminal charges.
After several different attorneys, Mr. Shafer began representation of the client. Immediately, he pointed out a deficiency in the search warrant application: the warrant application stated that the item was intercepted by Homeland Security; however, the application did not detail that Federal authorities had themselves sought a search warrant before opening the package and examining its contents. Thus, by opening a package without sufficient prior legal authority permitting such an action, local law enforcement was performing an illegal search, and the items seen and examined constituted “fruits of the poisonous tree” subjecting them to suppression from evidence in the case.
Additionally, Mr. Shafer pointed out that the home had other contraband found therein, marijuana, drug paraphernalia, etc. If the client’s brother, who has a criminal history for drug use and sale, had wanted to escape arrest, what better way than to store items in his brother’s room?
Ultimately, the State determined the deficiencies in the case were legitimate.
On January 14, 2021, a nolle prosequi dismissing all charges was entered.
