Articles Posted in Search and Seizure

Fighting Tough Cases – Marijuana Possession

No matter how bad you think your case is, the prosecution has to prove its case beyond a reasonable doubt, and its evidence cannot be the result of a violation of your constitutional rights.

In some cases that may seem hopeless to you, the prosecution will be unable to prove its case. Even if you admitted to the police that you had a bag of marijuana in the car, and they found it after you gave them permission to search the car, the state’s evidence may still have fatal flaws.

Here is a common scenario. You are pulled over for a traffic violation. The police start to ask some questions, and before you know it they are asking if you have any drugs or weapons in the car. They start to say things like “if you don’t give us permission to search we will make this hard on you” or “we will get the dogs”, etc.

Maybe you give them permission or maybe you don’t. Regardless, the search your car or you without a search warrant and eventually find something. Maybe it’s some drugs or maybe it’s a weapon, and you get arrested and charged with a serious criminal charge.

As you think back to the incident, you start to ask yourself, “Don’t police need a search warrant to search in my car, or look in my pocket?”

The NJ Supreme Court recently decided State v Privott. The holding is pretty interesting. Basically, the court held that when an officer has the right to conduct a “Terry” pat-down search for weapons, i.e. the officer has reason to suspect that the suspect may have weapons, the officer does not have the right to lift up the suspects shirt and circumvent the traditional pat-down requirement to recover evidence.

This does not mean that the officer can’t recover evidence that he suspects may be a weapon following a legal frisk. However,under “normal circumstance”, the law enforcement officer does not have the right to forgo the pat-down to determine whether the suspect may be armed and jump directly to a more obtrusive search. In this circumstance “the search exceeded the scope of the pat-down search needed to protect the officer against defendant having a weapon and was akin to a generalized cursory search of defendant that is not condoned.”

For the full text of the decision please see State v Privott