“Marijuana cases typically have many loopholes. Experienced defense attorneys can potentially have these cases thrown out entirely.”
This is some information about a marijuana possession case that I fought in Kinnelon NJ. This case started as many marijuana cases start in NJ, with a motor vehicle stop and a search of the car. It became my job to prove that the police officer’s search was completely illegal.
The charge wasn’t serious, the possession less that 50 grams. Everything under 50 grams is treated exactly the same in NJ, whether it’s one gram or 49. Still, I start every marijuana case, big or small by getting the “discovery”, or all of the information and evidence that the prosecution is going to use against you. In a motor vehicle stop, this is going to include video footage of your actual stoppage and the entire dialogue between you and the officer.
Often, it’s going to include the evidence that I need to get your case thrown out.
The defendant was pulled over because his windshield was cracked. When he rolled down the window to hand over his license and registration, the police officer stated that he smelled marijuana. If someone has been smoking in a vehicle, an officer is probably going to smell it, and further investigation can be expected. In this case, the officer asked the driver and passenger to step out of the vehicle and he searched them both, fortunately not finding anything illegal on either of them.
Next, the officer asked for permission to search the car, basically looking for a “consent search”, in which a person gives the police permission to search the vehicle without a warrant. Without a warrant or this consent, the police are not allowed to search the vehicle. When my client refused, the officer stated that he would “get the dogs and a warrant to search the car anyway.” To spare himself the trouble, my client agreed to the search and marijuana was found.
This search is completely illegal. New Jersey state law requires that any consented search must be voluntary and that “an essential element of such voluntariness is knowledge of the right to refuse consent.” This basically means that not only do people have the right to refuse the search, that have to be told that they have the right to refuse the search.
In addition, no police officer is allowed to intimidate a suspect into consenting to a search. Threatening any action involving large, aggressive, German shepherds in a roadside stoppage is approaching the realm of intimidation.
In addition to this obvious blunder, the officer also failed to have my defendant sign the consent form. This form explains all of the rights that a person has pertaining to a search, including the right to refuse it.
Based on everything that I had seen in the discovery, I filed a motion to suppress this illegally seized evidence. My motion was accepted, and the case was thrown out entirely.
Cases like this are common. If a police officer smells marijuana in your car, he is probably not going to leave the situation alone and you’re going to end up getting arrested. He’s supposed to send the information of his suspicion back to his station, and take the necessary steps to get a warrant for his search. Most officers don’t have this kind of patience, and as a result they leave many exploitable loopholes in their arrests