That 1/2" roach was in plain view and is an illegal substance. Possession of it is a misdemeanor
, and the penalties are up to a year in jail and a fine of up to $1,000. The cop may have been nice to you if he didn't ask you to take a blood test to see if there was marijuana in your system and charge you with that as well. For that matter, he could have also impounded your car.
You should retain a criminal
attorney for this matter. If you are unable to hire private counsel, you can tell that to the judge and ask him to appoint you a public defense attorney.
As to the search and seizure issue, all a police officer needs to be able to lawfully stop a car is an articulable suspicion. He can pull you over for just about any reason: driving too fast, too slow, too carefully, too carelessly, with lights, without lights, you name it. From there, if he sees contraband in plain view, he's got probable cause
to search and arrest you. He is not supposed to be able to just tear apart the car from there without a warrant, but from your facts, he would have had probable cause to get a warrant having found the roach anyway.
The law as to search and seizure is very complicated. Although it looks like there are set rules, in fact, decisions on whether police have overstepped their authority and violated someone's Constitutional rights are determined on a case-by-case basis at special pre-trial
hearings designed to challenge improperly taken evidence. The test the court
will apply is what is reasonable under all the circumstances. So even though you believe that the police were very incorrect here, and even if proves later to be true, the case will not get immediately dismissed. The case will be prosecuted and your lawyer will have to file motions requesting a hearing to suppress evidence taken from you in violation of your rights.
At this hearing the prosecutor will call the police officer to the stand and will question him as to what he did in your case. He will ask the officer to explain why he stopped you and to discuss the search, the arrest, and so on, to try to show that everything the police said and did was reasonable under all of the circumstances and that the police had probable cause for their actions.
When the prosecutor is finished, your lawyer would be able to cross-examine the police officer to try to show just how the police abused their authority by stopping you for no reason, and searching without a warrant, as well as question him about anything else your lawyer believes may have been improper. After both sides have finished getting all the evidence out there, the prosecutor and the defense attorney will each get an opportunity to argue their point of view before the judge, drawing support from the testimony that came out at the hearing. After that, the judge will make his ruling.
If the judge rules that police actions were reasonable under the circumstances, the evidence would be allowed to be used against you at trial. If, on the other hand, the judge rules that the police violated some or all of your rights, evidence seized as a result of those violations would have to be suppressed. If the drugs got suppressed, obviously a drug case would have to be dismissed.
There are two other things that you should know here. The first is that these hearings are very difficult to win. Judges give a lot of deference to the judgment calls of police out in the field and usually they will find their actions reasonable. The second is that generally these hearings aren't available until the end of the case, right before a jury would get selected. By then, any favorable deal the prosecutor has proposed is usually off of the table. This is important to keep in mind, because if the evidence does not get suppressed, you may or may not have a very strong trial case.
Your lawyer would be able to advise you of that early enough in the case for you to decide whether to move the case to hearings and trial or take advantage of a favorable plea bargain. If this is your first encounter with the criminal justice
system and you're not interested in risking trial, your lawyer can probably negotiate something for you that would not only allow you to avoid jail but would also let you come out of this with a clean record.
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This thread will not close and you can always use it to get clarification.This is informational only and is NOT legal advice. There is no attorney-client relationship. You are advised to consult an attorney in your state for specific legal advice..
Edited by FranL on 12/3/2009 at 12:31 AM EST