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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 26800
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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In July 2012 my 29 year old daughter was charged with possession

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In July 2012 my 29 year old daughter was charged with possession of less than 50g of marijuanna and a pipe. She is now four months pregnant with her first child and recently unemployed. She is required to report to court on Tuesday, March 5, 2013 on these charges. She was never read Miranda rights. The officer indicated he pulled them over (she was not the driver) was because a tail light was out (which was not true) and then they searched the car and her purse. There was no smell of marijuanna in the car at the time. Does she have a case of illegal search and seizure or it is a lost cause? She is on a good path now. She and her boyfriend are trying to save money for an apartment and the baby. I don't want her getting upset because she is expecting. We also live over an hour away from the municipality she was charged in.
Hello Jacustomer,

If your daughter wants to fight these charges, she will get a chance to challenge the search as unconstitutional. And if she was interrogated about the drugs without having been read her rights she would get to challenge that too at the same time.

It's possible that the drugs seized anad any statements made will get suppressed. That depends upon the evidence which will come out in court when she challenge this stop and what flowed from it..

The Supreme Court has said that all determinations of whether the police exceeded their authority in violation of another's Constitutional rights must be made on a case-by case basis after the matter is fully explored at a suppression hearing. There is no circumstance which is always unconstitutional. Determinations of constitutionality must always be litigated fully. If she has been arrested as a result of the contraband seized and she wants to fight the case, her lawyer will move for such a hearing at the appropriate time.

The standard the judge must apply to these hearings has also been determined by the US Supreme Court. The judge must decide whether the officer acted the way a reasonable police officer would have under all of the facts and circumstances presented.

At the hearing the prosecutor will put the officer on the stand and will question him in such a way as to make him look most reasonable under all of the circumstance. On cross-examination the defense attorney will look to bring out testimony showing just how unreasonable the officer was. In this way, the search and the lack of Miranda warnings and any other possible violation that the fact pattern raises would get challenged. When both sides rest the judge makes his decision.

If the judge finds the police conduct to be reasonable under the facts and circumstances, there is no constitutional violation and any evidence seized in the search will be admissible at your daughter's trial. If on the other hand, the police conduct is found to be unreasonable, then evidence that was wrongfully taken during the search will be suppressed, meaning it cannot be used against her. With certain kinds of cases -- drug possession cases for example -- if the evidence gets suppressed, there's no case left to go before a jury. So her case could end right there.

On the other hand, if she loses the hearing, since the drugs were in her purse she doesn't have a very good trial case. So she may be better off taking a plea agreement, particularly as this is only a disorderly person's offense in the first place, which NJ considers less than a crime. And it's also possible that she can resolve this in a way that can keep this violation off of her record. She would likely be eligible for a diversion program or a deferral. These are special forms of probation whereby she would have to pay fines, do some community service and take drug classes, and stay drug free during the period of her supervision. At the end of her successful completion of theprogram, she could get the case dismissed.

Whether she fights the case or wants a disposition, she will need a lawyer. If she can afford one, she should have one with her at her court date. If she cannot she can plead not guilty to keep her rights open and ask the judge for a public defender.
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Customer: replied 4 years ago.

If she makes a plea bargain with the prosecutor and agrees to probation and stays drug free (which she is now obviously) at the end of a successful probation when the case gets dismissed it is necessary to get any type of expungement?

Without an expungement her record will reflect a dismissal. With an expungement, records would be destroyed and she could say that she'd never been convicted of a crime. Disorderly persons convictions can be expunged 5 years the completion of the sentence.

She can expect random drug testing to be part of any probationary sentence and to be in trouble not just with the criminal court but with CPS if she continues to use.

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