The Fourth Amendment of the Constitution protects against unreasonable searches and seizures, and this constitutional right is most often implicated in drug related offenses, particularly possession of marijuana.
Since the only evidence that can be used against you in court is the evidence that the police discover, it is critical to hire a marijuana defense attorney that can properly examine the facts of your case, the situation behind the search, and determine whether or not the search was conducted properly and that it was constitutionally valid. If the search was not valid – generally because the police did not have probably cause to conduct the search – then all the evidence found cannot be used in court against you. Often the result is that the charges against you will be dropped.
The Probable Cause Requirement For a Search
Police may search a suspect without first getting a search warrant only if probable cause exists to conduct the search. This often comes into play in situations where the defendant has been pulled over while operating a motor vehicle. Because the vehicle is a moving object, and is being operated on a public highway, there is a far lower expectation of privacy than, say, in your home. Consequently, probable cause is all that is necessary to conduct a search of a vehicle. However, the Supreme Court of the United States has held that the probable cause must be “particularized to the particular area of the vehicle.” Consequently, just because an officer claims to smell marijuana, that itself does not give the officer probable cause to search every inch of the vehicle. Rather, he only has probable cause to search areas of the vehicle that have a “reasonable probability” of hiding marijuana.
Searching the Trunk of a Vehicle Upon Probable Cause of Possession of Marijuana
Whether or not an officer has probable cause to search the trunk of a vehicle that has been lawfully stopped to search for marijuana largely turns on whether the officer claims to smell “burnt” or “raw” marijuana. While Virginia courts have not directly address this issue, the Court of Appeals for the 10th Circuit has made this distinction crystal clear. If the officer smells burning marijuana coming from the passenger compartment of a vehicle that he/she has lawfully stopped, that officer then has probable cause to search ONLY the passenger compartment of that vehicle because it is not reasonable to suggest that the smell of burning marijuana is emanating from the trunk of the vehicle. If, however, the officer testifies that he/she smelled “raw” marijuana, then the probable cause shifts to a wider “particularized area” because the probable cause relates to the possession of marijuana, and not necessary just to its use. Again, having an experienced marijuana defense attorney is critical to determining whether any of these unjust search issues apply to your case.
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