Illegal Search And Seizures In Marijuana Drug Charges

Interviewer: If I do not consent to a Police Search but they search my car and discover marijuana, How is that going to play out?

Matthew Nebeker: Yes. The first thing I do is look for good legal defenses to the case and you know I start off with well, is there, legal seizure here in terms of the law?  Why was law enforcement present when this person was found to have the stuff on him?  Was there a notification?  Was he being loud and disorderly, what caused the officer to be there?  And if the officer doesn’t have a legal reason to be there investigating something, anything that they found as a result of their investigation can be thrown out as an illegal seizure and detention of the individual. From there, the analysis goes a little bit further like you mentioned a search, That’s another possible defense to a drug possession case is: Was there a lawful search?  Now, in order to search a person or their property or belongings, there has to be a warrant and/or a probable cause.  And a lot of times, police will get a warrant and they have to go and explain to a judge why they want the warrant and that information that they provide to the judge has to be complete and accurate.  Sometimes, we’ve looked at request for warrants and they’ve kind of stretched the truth or not fully disclose certain facts and mitigating factors.  And we’ve gotten cases dismissed for, you know, invalid or frigidly obtained warrant.  It happens depending on the officers and the kind of officer that you’re dealing with.

The Probable Cause Argument is Scrutinized in Court During a Marijuana Trial

We look at, the probable cause argument.  And the court says “You have to look at the totality of the circumstances.  What led this officer?  What did he you know see or smell or hear that would give him information to arrive to the level of probable cause to search?” Now, just like in your example, yes, he may have asked you if he could search your car or whatever and you say no, then he’s going to have to explain, he’s going to have to have one of those other two reasons for going into your vehicle.  And I’ve had one here recently where we’ve litigated the issue of consent.  And because a lot of times, consent can be obtained through coercion or duress and pressure tactics from the police, and so that’s another thing that’s a, you know, possible defense to Marijuana possession charged was: Was they consent to search?

If Either the Search or the Probable Cause’s Validity are Questioned, that Can Be Employed as a Defense in a Marijuana Trial

So, yes, if anyone of those is not,  valid then an argument can be made that it was the legal activity on the part of the police and whatever they found could be thrown out and not used against the client in this prosecution, which basically would end the case, you know, for the possession charge and then, I’ll go ahead.  I was just going to say another thing.  So, yes, we have all of those issues that we look at in defending a Marijuana possession charge, the seizure, the search and the consent, if obtained.  And if all of that looks good, then, you know, the one last thing we do is we look to see what the substance really was, okay, and that goes back to, that substance has to be properly collected and it has to be stored; while it’s waiting to be sent to the lab, that has to be stored in a secured place that, you know, no one can tamper with it, and that when it’s shipped to the lab, there has to be procedures in place to make sure that it hasn’t been tampered with.

The Laboratory Doing the Drug Tests is Analyzed to Determine the Accuracy of the Test

Then we look into the laboratory itself.  Does it have, you know, the right procedures in place to prevent contamination?  We look at the analyst.  Is the analyst qualified?  What’s their training look like?  How long have they been doing this?  You know, do they have the procedures that, you know, keep the sample from being contaminated? We also look at the machine that they run the sample on.  Was it running and operating correctly on that day?  Had the proper procedures been maintained and had it been cleaned and you know, just everything in accordance with you know the best laboratory practices that are available so we have a good, accurate, conclusive report of what the substance was in anywhere along — on that path from the collection of the substance to the machine, the [inaudible] what the result was.  If there is a problem, you know, that problem can be explained and be used to say that you know that’s a reasonable doubt and the charge should go away.

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