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Ely
Ely, Counselor at Law
Category: Legal
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Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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My son was in a car, with a person that was being watched possibly,

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My son was in a car, with a person that was being watched possibly, they stopped the car and found a spoon with residue on the spoon, this was back in June, they just arrested him for possession of a drug that was on the spoon, and he had a needle in his pocket. Can they arrest for the residue or just paraphanala?
Submitted: 9 months ago.
Category: Legal
Expert:  Ely replied 9 months ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your son's situation. Technically, he can be arrested for either/both.

All that the arresting officer needed was probable cause. The fundamental question in determining the lawfulness of an arrest is whether probable cause existed to make the arrest. Probable cause for a warrantless arrest exists when the circumstances within the arresting officer's knowledge are sufficient to lead a reasonable person to believe that a crime has been committed by the person being arrested. State v. George, 323 S.C. 496, 509, 476 S.E.2d 903, 911 (1996) (finding probable cause for warrantless arrest for murder). Whether probable cause exists depends upon the totality of the circumstances surrounding the information at the officer's disposal. Id.; see also Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 225, 13 L.Ed.2d 142 (1964) (a court must consider "whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the [Appellant] had committed ... an offense."). State v. Baccus, 625 SE 2d 216 - SC: Supreme Court 2006.

In short, the spoon in the vehicle is enough probable cause to arrest either/both. His needle is enough to arrest him.

Now notice that simply being arrested is not the same as being charged or convicted. He can be arrested, but then the prosecutor has to have a prima facie case (enough at first glance) for a reasonable chance at at conviction to survive the indictment, and even then, they'd need beyond a reasonable doubt to convict.

Ergo, a good attorney may have the charges thrown out still, or, have him be found not guilty.

Good luck.

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Ely, Counselor at Law
Category: Legal
Satisfied Customers: 86628
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 18 other Legal Specialists are ready to help you
Customer: replied 9 months ago.

Can you tell me if there is a residue limit or how much would have to be in spoon to convict him of possession?

Expert:  Ely replied 9 months ago.

ignore

Expert:  Ely replied 9 months ago.
There is no "limit" to how small the amount can be - any amount of substance can lead to a conviction, I am afraid (if the Judge/Jury agree that it is his).

A spoon can be used for either heroin or cocaine. What the possibility of a sentence is if he is convicted depends exactly on what the prosecutor proved he had and the intent.

COCAINE OR HEROIN
ACTION: Illegal possession.
PENALTY:
1st offense - Not more than 2 years and/or not more than $5,000.
2nd offense - Not more than 3 years and/or not more than $5,000.
3rd or subsequent offenses - Not more than 4 years and/or not more than $10,000.

ACTION: Illegal manufacture, distribution or possession with the intent to distribute.
PENALTY:
1st offense - Not more than 15 years and/or not more than $25,000.
2nd offense - Not less than 5 years nor more than 30 years and/or not more than $50,000.
3rd or subsequent offenses - Not less than 15 years nor more than 30 years and/or not more than $50,000.

ACTION: Trafficking (10 grams to 28 grams of cocaine).
PENALTY:
1st offense - Not less than 3 years nor more than 10 years and $25,000.
2nd offense - Not less than 5 years nor more than 30 years and $50,000.
3rd or subsequent offenses - Not less than 25 years nor more than 30 years and $50,000.

ACTION: Trafficking (28 grams to 100 grams of cocaine).
PENALTY:
1st offense - Not less than 7 years nor more than 25 years and $50,000.
2nd offense - Not less than 7 years nor more than 30 years and $50,000.
3rd or subsequent offenses - Not less than 25 years nor more than 30 years and $50,000.

ACTION: Trafficking (100 grams to 200 grams of cocaine).
PENALTY: 25 years and $50,000.

ACTION: Trafficking (200 to 400 grams or more of cocaine).
PENALTY: 25 years and $100,000.

ACTION: Trafficking (400 grams or more of cocaine)
PENALTY: Not less that 25 years nor more than 30 years and $200,000.

ACTION: Trafficking (4 grams to 14 grams of heroin, opium or morphine).
PENALTY:
1st offense - Not less than 7 years nor more than 25 years and $50,000.
2nd or subsequent offenses - 25 years and $100,000.

ACTION: Trafficking (14 grams to 28 grams of heroin, opium or morphine).
PENALTY: 25 years and $200,000.

ACTION: Trafficking (28 grams or more of heroin, opium or morphine).
PENALTY: Not less than 25 years nor more than 40 years and $200,000.

ICE - CRANK - CRACK COCAINE
ACTION: Illegal possession of less than 1 gram.
PENALTY:
1st offense - Not less than 2 years nor more than 5 years and not less than $5,000.
2nd offense - Not less than 4 years nor more than 7 years and not less than $10,000.
3rd or subsequent offenses - Not less than 10 years nor more than 15 years and not less than $15,000.

ACTION: Illegal manufacture, distribution, purchase or possession with intent to distribute (more than 1 grm).
PENALTY:
1st offense - Not less than 15 years nor more than 20 years and not less than $25,000.
2nd offense - Not less than 25 years nor more than 30 years and not less than $50,000.
3rd or subsequent offenses - Not less than 30 years nor more than 40 years and not less than $100,000.

ACTION: Trafficking (more than 100 grams)
PENALTY: 25 years and $50,000.
Customer: replied 9 months ago.

Just one more question, I didn't tell you what was in the spoon, it was hydromophin? He did not have a prescription. Does this change anything?


Thanks for your help?

Expert:  Ely replied 9 months ago.
Hello,

I am afraid not. The answer still stays the same. I am not sure which drug this is, but it is still illicit and sentencing for a conviction for drug use in SC may be found here.

I am sorry.

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