Many drug possession arrests occur incidental to a traffic stop.
Before the police stop a motor vehicle, they must have reasonable suspicion to make a stop. Reasonable suspicion means a police officer has observed articulable facts that would lead a reasonable officer to believe that a crime has been or is being committed. What constitutes reasonable suspicion depends on a variety of factors. For example, if a car is weaving in the road, speeding, or violating some other traffic law, reasonable suspicion exists.
Of course, some stops are just wrong. Police are not supposed to stop a car based on ethnic or racial profiling. A new shiny Volvo driven by a white male who works as an accountant and an older car driven by a young Hispanic or black male are subject to the same basis for a stop. If the stop was not legitimate, a good defense attorney can explore the reason for the stop. If a stop does not rise to the level of reasonable suspicion, all evidence gathered at the stop can be suppressed.
Once the stop is made, the police can only detain a person long enough to do a preliminary investigation. For example, if a taillight is burned out, the police can stop the car and issue a citation. However, they must have evidence of other crimes before they can detain a person beyond the period that is required to issue the citation. Also, a burned out taillight, standing alone, does not give the police a reason to search the car.
Search for Weapons
However, the police can search for weapons.
In Terry v. Ohio, the U.S. Supreme Court gave the police authority to do a limited search for weapons when a reasonable suspicion of a crime exists and the police also have reasonable suspicion to believe weapons are present.
The purpose of the Terry search is to find weapons that represent an immediate threat to officers’ safety. However, evidence of any illegal substance found during the search for a weapon is admissible. The search is limited to where a weapon could be hidden and is immediately accessible to a vehicle’s occupants. Therefore, a search of the glove compartment, underneath the car seats or any place in the passenger compartment will probably be upheld by the courts. A search of a car’s trunk would probably not be upheld based on the basis of a Terry search since the trunk is not easily accessible to a car’s occupants.
Again, to conduct a search of a motor vehicle under the Terry rule, the police must have reasonable suspicion that a weapon is present in the vehicle that represents an immediate threat to the police. What constitutes a reasonable suspension of an immediate threat is based on the facts present in each case. When an officer observes a weapon in a vehicle, whether it is a gun, a knife, or some other weapon, a police officer can conduct a Terry search. A police officer does not have to spot a weapon before conducting a Terry search; he or she must only have a reasonable suspicion that a weapon is present.
A Terry search also extends to the occupants in the vehicle. However, absent an arrest, a Terry search is limited to a pat-down of the outer clothing for a weapon. If the officer feels an object that seems suspicious, for example, a baggie with a substance that feels like it could be marijuana, the officer cannot retrieve the object because he knows it is not a weapon.
Proximity to Drugs Does Not Mean Guilty
Possession of illegal drugs can be either actual or constructive. Actual possession means what it says. A person has physical possession of the drugs. Constructive possession means the drugs are not in the immediate possession of a person, but the person has the ability and intent to possess the drugs. For example, if the driver is the sole passenger of a car and drugs are found in the car’s trunk, the police will probably charge the driver with possession.
If passengers are in the car, the picture gets murky. Mere physical proximity to drugs is not sufficient to convict a person of possession. Knowledge and intent to possess and control an illegal substance must be present before a person can be convicted. For example, a passenger may be unaware of the presence of illegal drugs in a car. Consequently, the passenger is not guilty of possession.
Being Charged Is Not the Same as a Conviction
A distinction must be made between being charged and being convicted. The police only need to find probable cause to charge and arrest an individual. A conviction requires proof beyond a reasonable doubt. Reasonable doubt is a much higher standard of proof.
Also, the courts act as a check on the police. The police may exceed the scope of their authority or charge a person for possession because the person is the proximity of an illegal substance. The courts are where an accused person gets the opportunity to present their side of the case. Moreover, the state has the burden of proof. An accused person does not have to prove his innocence; the state must prove an individual had possession of the drugs.
An experienced criminal law attorney is essential if you have been charged with possession of an illegal drug. Ashby Sorensen is an experienced criminal law attorney who will take nothing for granted. He knows a person is not guilty just because he was in a car where drugs were found. Mr. Sorensen will not encourage you to cut a deal just because it will make his job easier. His focus is on what is best for his clients. If going to trial is what it takes, he goes to trial. If his client is better served by entering a plea bargain for San Diego drug possession, Mr. Sorensen will work to get the best deal.