Robert Downey Jr., as you know, is in a lot of trouble.
Just months after serving a year in jail on drug charges, he was arrested again. The Palm Springs police have charged him with one count of felony possession of a controlled substance (cocaine), one count of felony possession of a controlled substance (Valium) and one misdemeanor count of being under the influence of a controlled substance.
Now what?
We asked criminal defense attorney Allan A. Ackerman, who has been handling drug cases since the mid-’60s, what he would do if he were Downey’s lawyer.
First, let’s review the facts. On Nov. 25, after receiving an anonymous tip, the Palm Springs police knocked on Downey’s hotel room door. He invited them in and gave them permission to search his room where they found the drugs, including five grams of cocaine.
According to reports, Downey was red-eyed and unkempt and when the police asked him to whom the women’s toiletries and clothing belonged, he answered, “Wonder Women.”
Sgt. Bryan Anderson said Downey was talking fast and obviously under the influence. He was arrested and released on $15,000 bail. His arraignment is scheduled for Wednesday.At the time, he will get written notice of his charges and enter a plea of not guilty. The court will set dates for arguments and motions.
“The key to the defense of this individual is the 4th Amendment,” says Ackerman. “It states, `The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.'”
But didn’t Downey give up that right when he invited the police into his room and gave them permission to search his belongings?
“I’d take the position that he could not constitutionally consent to the search because he was charged with being under the influence, and could not provide knowing and voluntary search-consent. Therefore, it was an illegal search, a warrantless search of private premises, which led to the recovery of the items seized. They would be inadmissible in any criminal proceedings.”
This, as fans of “The Practice” know, is the Poisoned Tree Doctrine. If the search was illegal, the results of that search can’t be admitted into evidence.
Ackerman says his chances of getting Downey off using a 4th Amendment suppression motion are “excellent.”
But if it didn’t work, he has a couple of other things to try.
He would send the drugs out to be tested by an independent lab to make sure they are what the police say they are. Anyone familiar with the O.J. Simpson trial knows how results can vary from lab to lab. “There are times when the state labs make mistakes,” Ackerman says. But if the drugs prove to be what the police say they are, then Ackerman would stress the amount of them.
“Five grams is a personal use quantity. Historically, the courts have taken the position that when there is a minor quantity of drugs involved and somebody clearly has an addiction problem it is better to defer prosecution and substitute treatment.”
In other words, send Downey to a hospital instead of a prison.
Of course, Downey has been in and out of nearly a dozen rehabilitation facilities in the last four years. Many of them mandated by the court. That, according to Ackerman, is not a reason not to send him again.
“Drug addiction is personal and so is the recovery process. Addicts frequently revert back. The recidivism rate is 50 percent, at least. But that doesn’t mean you stop treatment.”
Let’s assume Downey’s objective is to stay out of jail. If so, he may have gotten very lucky. When he was arrested on Nov. 25, he was out of prison on $5,000 bail pending a state appellate court decision. His attorneys had successfully argued that he had to be released because he had been kept in prison too long based on a sentencing error. The state appellate court agreed, but the California attorney general challenged the ruling.
Originally, the Palm Springs police were going to charge him with committing a felony while free on bail, but because of the confusion over whether Downey had actually served his complete sentence, they dropped that charge. This could be a windfall for Downey since the 4th Amendment provides less of a shield in a parole revocation than in a criminal case.
“That would be a much more difficult case to defend,” Ackerman says. Also, if a person is charged with a crime while out on bail, the category of the charge is elevated and carries a longer penalty.
By the way, while Downey was serving time, he was furloughed on at least three occasions, once to host “Saturday Night Live” and twice to work on films.
Could this happen in Illinois? Sergio Molina, spokesman for the Illinois Department of Corrections, says they’ve never been asked to release a convict so he could advance his show business career. However, there is a work-release program in Illinois and Downey would probably be eligible for that.
