Often, police will discover alleged marijuana during a motor vehicle stop or when a person is arrested for a separate criminal offense. In order for a police officer to investigate or arrest a person, there must be certain levels of suspicion present. Otherwise, the search or arrest violates a person’s rights under the 4th and 14th Amendments to the United States Constitution and Article 1, Section 7 of the New Jersey Constitution.
For a car stop, the police must have reasonable suspicion that the driver committed a motor vehicle offense, such as speeding or running a red light. Once the car is stopped, a police officer can search the car, if there is probable cause to believe that marijuana is present and exigent circumstances exist that allow the officer to forgo getting a search warrant.
To search a person prior to arrest, a warrant is required. However, certain exceptions to that constitutional requirement exist. If the officer has reasonable suspicion during an investigation that a person is armed and dangerous, then the police can frisk or “pat-down” a suspect to make sure that no weapons are present. During the frisk, an officer can search a person’s pockets for illegal drugs if the officer feels a suspicious bulge that can be immediately identified by touch as illegal drugs. This exception to the search warrant requirement is called the “plain feel” exception.
Another exception to the search warrant requirement concerns a search following arrest. If an officer has probable cause to arrest a person, then that officer can search the person to determine if weapons, contraband or illegal drugs are present. If a drug such as suspected marijuana is found during the search, the officer has the right to seize it.
If a police officer violates a person’s constitutional rights against illegal searches and seizures, then remedies can be obtained. An experienced criminal defense attorney MUST file a motion to suppress evidence in the municipal court. This motion will outline all of the officer’s illegal actions. A hearing concerning the motion will then take place. At the hearing, the prosecution will have the officer testify concerning why a search or arrest took place. The defense attorney will then have the opportunity to cross-examine the officer and also present witnesses. Experienced criminal attorneys will be able to expose illegal activities of the police.
If the judge believes that the officer conducted an illegal search and seizure, then all evidence that was obtained after the illegal police actions will be excluded. In other words, the prosecution cannot present the evidence at trial. At that point, the prosecutor can elect to dismiss the charge or appeal the judge’s ruling.