Posted On: January 13, 2012 by Brian G. Thompson

Possession of Marijuana Client Successfully Defended After Illegal Search Incident to Arrest

Can the Police search your car without a warrant? As a Criminal Defense Attorney, this is one of the questions that I am asked most often. The answer to the question is generally speaking yes so long as the police have probable cause. This is an exception to the warrant requirement in the Constitution known as the Automobile Exception. The rationale is that unlike a person's home for instance, automobiles are by their very nature movable objects creating a sort of inherent exigency that justifies allowing police to search without requiring them to leave the scene to obtain a warrant.

While the automobile exception is certainly a long recognized exception to the warrant requirement, it does not mean that the police can search a person's car without a warrant in every situation. As I said, the police must have probable cause or some other basis upon which to rely to search the vehicle. One common situation in which police search a person's vehicle without probable cause is the so called "search incident to arrest". However, the Supreme Court recently changed the rules regarding searches incident to arrest in a very significant way in a case called Arizona v. Gant. Prior to Gant the police would routinely search a person's car after affecting a lawful arrest, even if the arrest was for relatively minor traffic offenses such as driving while on a suspended license. In the Gant case, the Court limited the searches incident to arrest to situations in which the person arrested was within reaching distance of the passenger compartment a the time of the search and it was reasonable to believe that the vehicle contained evidence of the offense for which the person was being arrested. I successfully defended a client charged with Possession with the Intent to Distribute Marijuana utilizing this new case in Baltimore City Circuit Court last week. Here are the facts:

My client was operating his vehicle in a lawful manner in Baltimore City one day last fall. A police officer did a random check of his license plate through MVA and found that the registered owner of the vehicle's license was suspended for failing to pay child support and that he also had a warrant for his arrest for not paying child support. The officer looked up the description of the individual in the MVA computer and found that it very closely matched the operator of the vehicle. He conducted a traffic stop and quickly confirmed that the operator was in fact the registered owner. He immediately place my client under arrest for the outstanding warrant and placed him in the back of his police cruiser.

The officer then proceeded to search the passenger compartment of the vehicle "incident" to that arrest. In a gym bag on the floor of the back seat he found 3 heat sealed packages each containing one pound of marijuana. Based on the amount of marijuana, he charged my client with possession with the intent to distribute a controlled dangerous substance. He also charged my client with driving on a suspended driver's license.

I filed a motion to suppress all evidence based on what I believed to be an illegal search incident to arrest. I argued to the court that this case failed not one but both of the prerequisites to a legal search incident. First, when the search was conducted, my client was not within reach of the passenger compartment and was instead seated in the back of the police cruiser with handcuffs on. Second, he was not arrested for a drug offense he was arrested for not paying his child support. It was, I argued, simply not reasonable for the officer to believe that there would be evidence of the crime for which the person was arrested located in the passenger compartment of the vehicle. The court agreed and suppressed the evidence resulting in my client being acquitted of the felony drug charges.

As a side note, I would like to address a concern that am constantly confronted with regarding the representation of clients who have clearly committed the offense for which they are charged such as this case. After all, he did possess the marijuana and since no one buys 3 pounds just to smoke it, he obviously intended to sell it. I know it may bother some that I was able to secure an acquittal on such a clearly guilty person based on what some might term "a technicality". Those of us who work in this business don't view it that way. We believe that it is imperative to constantly monitor police conduct and to immediately sanction any violation of a citizens rights. This is, we believe, the only way those rights will remain intact and undiluted.

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