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If a cop pulls you over for a suspended license and claims

to smell marijuana and says...
If a cop pulls you over for a suspended license and claims to smell marijuana and says he has probable cause to search, Is a search and seizure of prescription medication found inside a car legal or can you move to suppress under the 4th amendment?No traffic violation occurred. The cop was behind the driver an d read the tags and it came back as the driver had a suspended license unknown to the driver. It's about 10pm at night and the cop finds prescription medication inside a blue prescription pill bottle with a cap, I believe the bottle isn't see throughand it has its proper label and information from the Pharmacy of the drug and patients name. Is the cop allowed go outside the scope of looking for the marijuana and OPEN a prescription bottle without a warrant if it's labeled properly and belongs to the driver? There was 12 more pills than prescribed but the driver had a refill and it was a carry over from the other prescription 2 months prior but the prosecutor still wants to press charges though a valid prescription was printed out from pharmacy and produced.
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Answered in 39 minutes by:
7/13/2017
Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 28,702
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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Hi,

I'm Zoey.

I'm reviewing your post. Please be patient as I may need to research for you, and it also takes time to compose and type a reply.

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The answer to your question as to whether the police can lawfully open the prescription bottle depends on all of the facts and circumstances. You'll be able to challenge the stop, search and seizure at a pre-trial suppression hearing if you wish to fight this case.

I would expect the police officer to say that he had probable cause to open the bottle because he smelled an illegal controlled substance and needed to see what was really in the bottle. Whether that would fly or not depends on the evidence elicited at the hearing both on direct and cross examination.

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Customer reply replied 6 months ago
There was a motion hearing at the Municipal level but jurisdiction was challenged and they bounded it over to the Common Pleas which would have been done anyway and the motion was denied. Based on the circumtances given above do you believe there would be grounds to suppress? State v Gant 2009 was used but they denied it. The cop claimed he smelled marijuana but he searched the car for over 2 hrs. He found no marijuana in the car. It was on the driver and he demanded the marijuana by coersion and told he'd go to jail if he found it. It was a misdemeanor amount.In State v Grubbs 2017 Ohio 41 it says police cannot open pill bottles and STATE of Indiana v Justin M Corwin says something similar.

It sounds as if you have a legitimate suppression issue. That said, if the court feels otherwise, all you can do is to object to the ruling and preserve the issue for appeal.

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Just checking in to see if you need more help or any clarification of my answer. If so, please reply here on this question thread.

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Law Educator, Esq.
Category: Criminal Law
Satisfied Customers: 121,050
Experience: Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
It seems as though you opted out your previous contributor, I am a DIFFERENT CONTRIBUTOR, was there more information you were seeking that was not provided by the previous contributor?
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Customer reply replied 6 months ago
I want to know based on the circumstances of the stop, search, and ''probable cause'' would there be grounds for a motion to suppress?
Thank you for your reply.
Here is the issue, Stubbs and even the Indiana law does not say that police cannot open a pill bottle. The courts discuss not using misdemeanor or minor violations to prohibit these types of searches. The courts allow if the bottle is not labelled for officers to inspect the contents, since the federal and state laws require pills in bottles to bear the proper prescription labeling.
There would be grounds for a motion to suppress where the case facts are similar to Stubbs, if your case was a misdemeanor stop and there was no other probable cause for searching the bottle, such as the bottle containing pills and not being properly labelled in accordance with federal and state laws. SINCE THE BOTTLE WAS PROPERLY LABELLED, then without more evidence, there would be no probable cause and as such the search should be suppressed.
Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.
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Customer reply replied 6 months ago
The amount of marijuana was small and he was charged with a minor misdemeanor. The cop searched the car for over 2 hours and found no trace of weed. He told the driver I know there's weed because I can smell it and either you can give it up now willingly or if I find it you'll be going to jail. A Minor Misdemeanor isn't an arrestable offense here in Ohio and the driver didn't know that so he removed it from his person and gave it to the cop.What I want to know is was it legal for the cop to search and seize a small BLUE (NON SEE THROUGH ) prescription bottle with proper label and a pop up cap from the pharmacy once the cop looked inside and seen there was no weed? Since his ''reasonable suspicion'' was the smell of weed shouldn't he have found and focus on that first, especially since the prescription bottle was labeled properly and belonged to the correct owner regardless whether the amount matched the quantity or not? I don't get how someone can be charged with aggravated possession of their own medication. A print out from the pharmacy was rejected.Would this be comparable to the Grubbs case to get it suppressed?
Customer reply replied 6 months ago
There was no warrant to open the prescription bottle either so even if he believed it may have been illegally obtained shouldn't he have taken it back to the station and wait to get a warrant before ''counting'' and filing a charge?

Thank you for your reply.

Actually, that is not what Grubbs says IF THE BOTTLE WAS NOT LABELLED, but since the bottle was properly labelled, they should have actually done what you said and obtained a warrant for the search if they believed there was some violation. If the bottle was properly marked then they had no probable cause to search it.

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Customer reply replied 6 months ago
I know that isn't what grubbs case says I was saying in this particular case it was labeled properly but just wanted to know if there was enough grounds to suppress since both cases are somewhat similar.

Thank you for your reply.

Yes, if your bottle was properly labelled, then there is a ground to suppress the evidence since them looking in the bottle was without probable cause. That is what I was saying above.

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Customer reply replied 6 months ago
How did you determine that it can be suppressed? Did you take into account the circumstances such as the driver being under suspension, officer smelling marijuana and finding a minor misdemeanor non arrest amount on the drivers person and then searching the car where no additional marijuana was found but an un open pill prescription bottle properly lableled?In state v moor below it says the smell of marijuana alone gave probable cause to search. But in the supreme court in United States v ross 1982 says the opening containers without a warrant is a violation of the fourth amendment. So which one is right in considering the circumstances mentioned above?State v. Moore,*****3d 47, 2000-Ohio-10 Therefore, we hold that the smell of marijuana, alone, by a person qualified
to recognize the odor, is sufficient to establish probable cause to conduct a search. Here, Sergeant Greene’s searches of defendant’s person and vehicle were exempt from the warrant requirement under the Fourth Amendment on the basis of the
automobile exception and exigent circumstances.
Customer reply replied 6 months ago
it was found in the front seat not in the trunk like most ''Gant'' cases.
Thank you for your reply.
I said you can seek to have it suppressed and I did not say it WOULD be suppressed. The smell of weed gives right to search, but again closed containers are still borderline as to whether or not warrants are needed. Unopened pill bottle that is labeled is a closed container so there is at the very least legal basis to argue for suppression based on no warrant being obtained and it being a closed container that could have been secured until a warrant was obtained. Gant dealt with inventory searches post arrest, but even with the suspended license and smell of weed, the closed container properly marked pill bottle was something that is questionable for searching without the warrant being obtained.
Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page, as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.
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