Alcohol & Drugs: MIP, MIC, Intoxication illegal search and seizure(marijuana found)

[thenaturalfl7]

My friend and I were walking down the road around 2:00AM when a police car came from behind us. The officer rolled down his window and asked our ages. I told him that I was 18 and my friend 19. He then got out of his vehicle and asked for ID. I gave him mine, but my friend lost his in a prior underage offense. The officer claimed to smell alcohol but we told him that neither of us was drinking. He then preformed the "pen test" on us and asked us to prove our innocence by taking a PBT test. I told the officer that I would not agree to that and my friend as well.(since we did have that right) He then, without explaining what he was about to do, began patting me down and grabbing at my pockets. He felt a container and asked what it was. I said im not sure I have a lot of things in my pockets. He told me to pull whatever it was out and I said no sir I will not empty my pockets. He then began feeling the outside of my pockets much more thoroughly. He again said he felt something suspicious and told me to remove the item from my pocket. I said no but he saw the end of a baggy and told me to empty my pockets onto the trunk of the patrol car. I did so. I was holding an empty baggy with the exception of a small marijuana stem, and empty pill container, two tiny marijuana buds(contained inside my pocket) and a prescription pill. The officer then (without permission) began grabbing my buddy's pockets and told him to empty it onto the car. My buddy had a few small buds and a glass pipe. I personally believe that his actions ignored the fourth amendment completely and would constitute as an illegal search and seizure. I have been charged with possession, paraphernalia, and underage (his evidence of consumption was purely based on smell) and he had no probable cause to search us. Please tell me if I am wrong here and what chance I would stand in court and also any suggestions that would help me out. Thanks a lot!

 

[NYClex]

hm, since I assume that you will have an attorney, this is something he or she needs to focus on. It is very difficult to make an evaluation in these cases, since the most minute detail of what happened can make a huge difference. So what you should do is tell your attorney as detailed as possible what all of you (you two and the cop) were doing from the moment the cop spotted you.

Police officers have certain rights to stop and frisk people without consent or a warrant. But these rights are limited by quite a number of facts.

I cannot put down all the law about this here, because this fills books. So let this suffice:

there are several issues here:
the first is if the cop had any reasonable suspicion that a crime was committed - here for example you being MIPs. The question is would he have had the right to arrest you for that. What did the officer determine, were you drunk or not. Every answer to these questions already can broaden or narrow the scope of his rights to search you.

There are more issues: how did he pat you down. Did he recongnize the objects in your pockets "immidiately" or did he have to probe and examine. That alone could make a huge difference.

Was there anything in plain view? Any plain smell?

and so on and so on. Your attorney is the one who has to make the evaluation about all those things.

 

[thenaturalfl7]

I may have left a few details out but let me answer your questions...first of all when the cop spotted us we were very quietly walking down the road in low-populated neighborhood. The two of us really do not look threatening at all (both about 5'10, 140) and we were doing absolutely nothing wrong when he came from behind us. This would lead me to believe that the cop wouldn't have that right to stop and frisk us since in no way were we acting suspicious or acting out of order. Second, the pat down was incredibly thorough (he knew what he was looking for) but he never asked if we had any illegal drugs or weapons. Third, there was absolutely nothing in plain view. He did not know exactly what he felt when he grabbed the container from outside my pocket but it seemed that he thought it was contraband. He then ordered me to empty my pockets (does he have that right?) I could fully understand if what he was feeling resembled a weapon in any way, but it did not. There was nothing in plain smell besides alcohol. My father is an attorney but he is no longer a criminal lawyer and therefore will not be representing me in court. My father talked to the officer and the officer told my him that when he got out of his car he smelled alcohol AND marijuana(this is false, we hadn't smoked for a few hours before this) and even if he did, would you think that he would have said that while he was frisking us? My father believes, as I do, that the officer preformed an illegal search and seizure but he doesn't know if the officer would have had probable cause. Now you know pretty much the entire story, would you think the officer had probable cause? My personal belief is that the cop got angry when I denied a PBT test and decided to go all out! In your opinion, do you think I could get the charges dropped?

 

[NYClex]

from what you write it sounds to me at least arguable if the cop had a cause for this kind of search and seizure. But as your dad surely will be able to explain to you, there are different requirements for different situations.

If the cop had probable cause and the privilege to arrest you for being drunk, the search could have been a search incident to arrest, which gives the cop a lot more leeway to search than a simple "Terry" search, which usually is called a "stop and frisk."

In a Terry search the courts have held, that if the cop "immediately" recognized an illegal item through your clothing when he was patting you down, he is allowed to take it out of your pocket or make you take it out. If he does not immediately and exactly know what it is, he does not have that right.

And so on and so on. You misunderstood me above, I was not actually asking these questions but I was telling you what kind of questions your attorney needs to ask. I cannot give you a clear answer here, I would have to know all the details, especially what the charges are, what the cop wrote in his report etc. etc.

This goes way beyond the scope of this forum here.

But again, from what you write you might have an arguable case of illegal search and seizure. It is your attorney's job to make it stick.

 

[thenaturalfl7]

I thank you for all of your information(which helped me understand a lot more about this complicated topic) and I know you can't help me much more, but I just wanted you to know that I was never actually arrested the night of the incident which my father said something about. He said that if a person is placed under arrest, the cop then has the right to search them. The cop was never sure and never actually determined if we were drinking or not but he smelled alcohol so he thought we were or at least one of us. So I guess the search would be considered a Terry search. I can't be sure if the cop will say that he immediately recognized the item in my pocket as contraband or not. I will find out I guess, and if you care to know what happens, I could keep you updated. I will find out what I have been charged with tomorrow morning. Thanks again for all of your help.

 

[NYClex]

yes, it will surely be interesting to know what will happen.