does contraband on a passenger give reason to search my car? Arrest, Search, Seizure, Warrant

Discussion in 'Criminal Procedure, Criminal Court' started by krobben11, Dec 2, 2010.

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  1. krobben11

    krobben11 Law Topic Starter New Member

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    Ok so I got a very special case. Basically a cop came up to my car in the parking lot with reason to confront me. The car smelled of burnt marijuana. He had reason to detain and search the cab of the car as well as me and the passenger. Legally though, he did not have reason to search the trunk because the smell of burnt marijuana gives only probable cause to search where we might smoke and its unreasonable to smoke in the trunk(United States V Wald 10 Cir. 2000) Well he searched the trunk anyways without my consent and found a lot of marijuana. So that was illegal. Heres where it gets iffy and my attorney says it doesn't matter but I cant confirm that. When he was detaining us, the officer found a small amount of marijuana and a pipe ON my friend who was in the passenger seat.
    Does finding contraband ON him give reason to search the car?
    If it does, and the search of the cab was fruitless, then is it still reasonable to search the trunk?
    Please link for references to your answers if you can.
    Thanks!
     
  2. krobben11

    krobben11 Law Topic Starter New Member

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    I just did more research and it seems like the pat down was unconstitutional. US v Wald had a case of similar where the officer smelled drugs and frisked Wald. The court found it unconstitutional because the suspect didn't appear dangerous. A frisk is only legal when the officer feels threatened by the suspect. US v Terry. This would throw out the evidence found on my friend.
    Does this seem right to anyone?
     
  3. army judge

    army judge Super Moderator

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    Your case can't be tried on this forum. Your approach is correct. Your case cites are useful.

    Your problem will be in convincing a judge to throw out the search. That is easier said than done. Judges are reluctant to discard police searches.


    You also forget that what you call a search, the officer's carefully worded report will term to be, inventory.

    A search might be illegal and get tossed. An inventory, subsequent to an arrest of the arrestee's vehicle wouldn't be illegal.

    If I were you, I'd listen to my lawyer. Also, as a practical matter, a car filled with "lots of marijuana" isn't going to be ignored by a judge.


    Your friend was an idiot.
     
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  4. CdwJava

    CdwJava Moderator

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    As a note, a pat down does NOT require only that the officer feel "threatened," but that he can articulate the possibility that the suspect be armed and thus poses a danger. That being said, it can be a stretch to articulate finding pot and a pipe during a pat-down. Feeling a pipe does not justify reaching in the pocket for it, but the officer is likely to ask, "What's that?" If the guy says it is contraband, then all bets are off.

    But, with the odor of marijuana in the car it is not unreasonable to search the occupants for the indicia of the smoking if it is not obvious inside the car.

    As for the trunk, if there was "a lot" of marijuana in there, I suspect the officer could smell it.

    In the end you will have to see what the officer has to say in his report, and you will need to follow the guidance of your attorney.

    And a word of advice, do NOT toke up when you are hauling around a load of dope! Bad idea!
     
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  5. mightymoose

    mightymoose Well-Known Member

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    I highly suspect that you consented to the search of the vehicle, including the trunk, without realizing that you did so. This depends greatly upon what the officer said and how you responded. When the officer went to open the trunk it would have been very helpful if you asserted yourself at that time to deny permission to search, and I doubt you did that.

    The pat down was most likely legitimate. If the officer could smell the contraband, then he had good reason to do a pat down. Pat downs are regularly done with a lot less reason than that.

    I suspect there was some verbal judo going here, and you lost.

    A good lawyer may be able to help you out of this. You will have to get a look at the officer's report to see what justification was used for the search.
     
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  6. mightymoose

    mightymoose Well-Known Member

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    Also... what was the officer's initial reason to confront you?
     
  7. krobben11

    krobben11 Law Topic Starter New Member

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    no i told him when he started walking over to search my car that "i dont give you consent to search my car." The pat down is probably legal like you said. And we were confronted because a neighbor called the cops for being concerned about us sitting around at that time of night.

    But can anyone tell me if what was found on my friend was probable cause to search my trunk. Keep in mind that marijuana and a pipe was found on my friends body and not in the car.
     
  8. CdwJava

    CdwJava Moderator

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    Once again, if you had "a lot" of marijuana in the trunk, it likely wreaked with that distinctive odor. Most people can smell marijuana quite easily ... people that smoke it tend to not notice it quite so easily.

    But, by itself, marijuana possession by your passenger should not be sufficient to support a search o the trunk. You will have to wait until your attorney can obtain the police reports to find out what reason they have articulated to support the search of the trunk.
     
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  9. mightymoose

    mightymoose Well-Known Member

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    I suspect you might get lucky.

    If the officer smelled the marijuana and could not find anything after a cursory search of the passenger area, then he should have obtained a warrant or consent before getting in to the locked trunk.

    Regardless of when the officer found the contraband on your friend, he did not have free access to your trunk. Had YOU been arrested for any reason then the officer could legally have discovered the pot in the trunk during a vehicle inventory incident to towing the vehicle... however it sounds as if the circumstances would not have been sufficient for a tow anyway. As said, there may be more to it than you realize, and the officer's report will have to be read to find out his justification. If you are lawyered up and have not made any admissions then you just might come out unscathed.

    You might be able to fight off the charges, but you will still be without your pot, and will forever be on the police radar as a dealer.
     
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  10. krobben11

    krobben11 Law Topic Starter New Member

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    nope theres nothing more to it. I've read my lawyers memorandum and the prosecutors. Their defense for the legality of the search was based on 2 things:
    1) The smell of the burnt pot
    2) The contraband on my passenger

    I have several citations now to prove both of those weren't enough evidence to go snooping in my locked trunk without my permission. So I'll likely win.

    Now since this is America, I do take it as my duty to sue the police department if/when I win. How much do you think I'll receive in punitive damages for violating my rights and semi-handicapping me for future jobs now that is will always be possible to find should an employer want to find out?
     
  11. CdwJava

    CdwJava Moderator

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    Those memorandums are legally worthless. What will count will be the TESTIMONY the officers provide on the stand. If they provide testimony that the court agrees provided sufficient probable cause to search the trunk, then that's all that is needed. And even if the search is suppressed, there is no guarantee that the act of the search and the arrest will be seen as so egregious and so obvious a violation of your civil rights that (a) an attorney will take the case, and/or (b) that you would win much more than attorney's fees in a settlement.

    If you are acquitted, the case is dismissed, or the matter is dropped, then I would recommend you consult some attorneys and see whether they do cartwheels for you. if they ask for money up front, your case is NOT the golden goose you'd like to think it is.
     
  12. bluemann33

    bluemann33 New Member

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    IF you win your case I would be done with it. Be happy with no record, no jail time, etc.
     
  13. mightymoose

    mightymoose Well-Known Member

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    Zero.
    how is it that you think you have been handicapped for future jobs? None of this would be on your criminal record if it is dismissed.

    Your buddy is probably still on the hook for simple possession though.
     
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