Possession of Marijuana Charges

Possession of Marijuana is illegal in Virginia pursuant to VA Code 18.2-250.1.  Under the statute, possession must be proven to have been “knowing” or “intentional.”  This requirement is one of the first aspects of your case that we will directly address at Ervin Kibria.  These possession requirements mean that the government must prove that you either knew about the marijuana or that you intended to have marijuana in your possession, and that it wasn’t unintentional.  Sometimes, this can be significant burden for the prosecution.  The prosecution must prove beyond a reasonable doubt that the defendant was (1) aware of the presence and (2) character of the drug, and (3) that the defendant possessed it.  This issue of “possession” is critical – mere presence near or in the proximity of marijuana is not enough to establish a person’s possession of the drug.

Often times, the prosecution is forced to resort to “constructive possession” of the marijuana.  In a constructive possession argument, the prosecution will offer circumstantial evidence concerning acts, statements, or conduct of the defendant that could lead the judge or jury to believe that the defendant was both aware of the presence of the marijuana and experience dominion over it.  However, having a Fairfax County Possession of Marijuana Lawyer can make it very difficult for the prosecution to prove that the defendant possessed – actually or constructively – the marijuana.

Penalties For a First Offense of Possession of Marijuana:

• Misdemeanor conviction
• Up to 30 days in jail
• $500 fine
• 6 months lost of driver’s license (even if you were not driving at the time of your arrest).

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 lawyer 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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