NJ Marijuana Attorney – Defenses For Consented Search – 2C:35-10
“Even if you allow an officer to search your car, we can potentially beat your drug possession charges. Loopholes exist in all cases, it’s just a matter of knowing how to find them.”
This success story is about a client I had who was pulled over and gave the officer permission to search his car. Even though the officer found easily found marijuana and was given permission to look through the car, I was still able to beat this case. The reason for this is that the consent was not legally given and was therefore invalid.
In this case, like so many pot-related cases, the defendant was pulled over for a moving violation and the officer allegedly smelled marijuana in the vehicle. The officer asked if he could look around for the pot he smelled, and since most people don’t feel completely comfortable saying no to a police officer, my client simply agreed.
The most interesting thing about “consent” searches is that the officer must explain to the pulled-over motorist that he or she can refuse to allow the search. If that isn’t clearly explained, the search is unconstitutional and it’s thrown out.
In addition to audio/video tape being able to prove that this explanation occurred, officers are supposed to give you a form to read and sign which very clearly explains this refusal option. This way you can’t possibly make the case that you weren’t told.
In this case, like quite a few I’ve seem, the officer didn’t include this form. This part of the law is meant to prevent motorists from being intimidated out of their rights, but it doesn’t always work. It was also clear from the videotape evidence that the officer never advised my client of his right to refuse to consent.
I immediately filed a motion to suppress this evidence based on the unconstitutionality of the search. Without consent, the officer needs a warrant or some exception to needing a warrant… Like drugs sitting in plain view or a valid reason to have impounded the car and stumbled upon some illegal substance.
The prosecutor didn’t even attempt to dispute my suppression of evidence and the case was dismissed without even a fight from the other side.
I love when that happens.