Can I use misconduct as a defense if police stole money from me during a search?
UPDATED: February 3, 2020
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Offering police misconduct as a defense means you'll have to prove the actual amount that was in the cash box, admit to the offense, and then hope that the police will admit to the theft. Most criminal defense attorneys will advise you that this is an incredibly risky defense because it could actually bolster the case against you. Chances are that the allegation could lead to a police internal affairs investigation, but not a dismissal of the drug charges against you.
Proving a Police Misconduct Defense
The first part of your defense is proving the amount of funds that were in the cash box. To prove this with certainty, you will have to produce some type of documentation as to your activities. This may involve your having to divulge the identity of others involved in your drug dealings, which means that, in addition to seeking a conviction against you, the police might then open an investigation of your buddies. You must also prove that you were the only one who had access to the drug money prior to the raid. Of course, demonstrating exclusive possession only serves to enhance your chances of being convicted.
The second part of your defense involves admitting that the money was drug money. Most judges and juries are not sympathetic to people who deal drugs. Your admission to drug dealing and your claim that you actually had a higher amount of money than the police report indicated will only serve to convince the judge that you are a bigger dealer than the prosecution originally believed. Neither judge nor jury is likely to feel sad that money was stolen from you.
Find an Experienced Criminal Defense Attorney
The third part of your defense is getting the police to admit that they stole the money. Most officers are not going to be eager to admit to that type of charge. This part of your defense is best handled by an experienced criminal defense attorney who can investigate and make inquiries without you having to make any direct admissions. For example, your attorney can file discovery motions that include the right to inspect and recount the drug money seized. They can look for discrepancies, compare police reports, inventory sheets, etc. Many states require police agencies to file a notice of seizure in a separate civil proceeding if they intend to keep the money. Your attorney can file motions for discovery and inspection in that case as well.
Your attorney can also request notice of any prior complaints against the officer(s) who took the drug money into evidence to see if this same issue has come up before. You will have a better chance of getting your case thrown out if the issue of stolen money has come up multiple times with the same officer.
Even assuming that you can develop a majority of these factors, the most that you can probably hope for is an internal affairs investigation. The law only requires that the evidence used against you be obtained legally. If the search warrant was a valid warrant, and drugs were found during the raid, the evidence was seized legally. Most courts will view an allegation of police misconduct as a jury issue, meaning it goes to the credibility of the evidence and testimony, but it does not bar the admission of the evidence. In the end, you will probably still be charged with possession of a controlled substance.