When you’re charged with possession of marijuana, drugs, or anything else that’s illegal, there are two common issues that may lead to your case being dismissed. The first is whether or not the search that led to the officer finding the drugs was a legal search. The second is whether or not they can link the drugs to you. If the cops found the drugs through an illegal search or if they cannot link the drugs to you, you may lead to the state dismissing your case. Not all possession cases can get dismissed and there are other reasons that a possession case may be dismissed, but these two ways are the most likely ways to get them dismissed.
1. Was It a Legal Search?
The Constitution gives you the right not to be searched without a search warrant, but there are many exceptions to this right. The most common exceptions are if you give consent, if the officer has probable cause to believe you have an illegal substance, or if the illegal substance is in plain view. The law around searches and seizures is complicated. Just because you think the officer’s search was legal, it still may be an illegal search. If the an illegal search resulted in the officer finding marijuana or illegal drugs, we may be able to keep the drugs from coming into court which often results in the state dismissing the case.
Did You Give Consent?
If an officer asks you to search your vehicle or home and you say yes, it was probably a legal search. An officer does not need to get a search warrant or have probable cause to search if you give them permission. It’s important to always say no if an officer asks to search anything. Even if you don’t have anything illegal, you should always say no to a search. You wouldn’t let me go searching through your car, don’t let an officer do it either.
Did the Officer Have Probable Cause?
If an officer has probable cause to believe that there is something illegal in your car, is allowed to search for that thing. For example, if an officer smells marijuana, he can search anywhere in your car because drugs can be hidden anywhere. The smell of marijuana is one of the most common reasons that officers point to when searching a vehicle. Don’t smoke marijuana in your car, it gives officers to search your vehicle and leads to more problems.
Was it in Plain Sight?
It is not a search if an officer sees drugs or other illegal items in plain sight. It has to be clear that the item was illegal without moving things around. This comes up often if an officer sees a vape pen. A vape pen is not illegal, but some can be used for THC. If an officer sees a vape pen but is not sure what is in it, then he cannot take the vape pen for a closer look. A common thing that officers will do is they will ask questions. “What kind of vape pen is that? That looks like it’s THC in the cartridge. What’s in the cartridge?” You have the right to remain silent and you have the right not to answer an officers questions. If you’re in a situation like that, it’s best not to make any admissions and it’s best not to lie. The best thing to do is tell the officer you are not answering any more questions and tell him you want to speak with an attorney.
2. Can they Link the Drugs to You?
Even if the drugs were found because of an illegal search, the state still has to be able to prove that you were the person who possessed them. This analysis is going to depend on a lot of different facts. Where was the marijuana found? If it was in a car, where in the car? Who else was in the car? Whose car was it? Who has access to the car? Ultimately, the state has to prove that you were the person that had possession of the drugs and that you possessed them intentionally or knowingly.
Even if the drugs were found because of an illegal search, the state still has to be able to prove that you were the person who possessed them. This analysis is going to depend on a lot of different facts. Where was the marijuana found? If it was in a car, where in the car? Who else was in the car? Whose car was it? Who has access to the car? Ultimately, the state has to prove that you were the person that had possession of the drugs and that you possessed them intentionally or knowingly.
If you have any questions about this or if you’re being charged with possession of marijuana, a controlled substance, or anything else illegal feel free to give me a call (210-900-2806) and I would be happy to discuss your case with you.
Sean Henricksen Law Firm
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