Probably Cause?

[dshearer]

What is the name of your state (only U.S. law)? Texas

Subject is stopped by an officer for expired registration. Upon the officer speaking with the subject he notices a shopping bag in his car and inquires why he has it. Subject states he works for the company, and has personal things in the bag because he is in the process of moving. The officer has the subject get out of the car, puts him in handcuffs and sits him on the curb while he searches the vehicle. Officer opens the glove box and finds a small sack of marijuana as well as a pipe and a scale.

Subject is issued a citation for Paraphernalia and a charge for Simple Possession.

1. He is all freaked out since hes never had any prior charges, but he will probably just get probation?

2. Did the officer have probable cause to search the vehicle? I'm assuming yes he did (and he shouldn't have had the pot to begin with), but the subject is black so I'm not sure I would have had my car searched for a shopping bag.

Let me reiterate that I think my friend is a moron for having drugs and don't really care what sentence he gets because he earned it, just getting some outside opinions on what will likely be the outcome.

 

[CdwJava]

If your friend's attorney makes a motion to suppress the evidence the state will have to explain why the officer searched the car. He will have to articulate his probable cause for the search. I can think of a couple of possibilities, but they might be slim. What the officer knew or believed we cannot possibly know.

He should consult an attorney and let the attorney make this call after he has looked at the state's case (the report and evidence).

 

[tranquility]

I'd also like to know how the probable cause extends to the glove compartment.

 

[justalayman]

dshearer, your friend should really speak with an attorney before saying anything else to anybody. Hopefully he hasn't already hung himself. In this situation, based only on what you posted, the officer may not have had a right to do what he did.

Obviously, there could be facts not presented that would give the officer all rights to act as he did as well.

 

[CdwJava]

I'd also like to know how the probable cause extends to the glove compartment.

I would, too ... but, there are a couple of slim possibilities that come immediately to mind. A custodial arrest involving an impound of the vehicle ... a search for paperwork involving the vehicle that was not presented initially ... the odor of marijuana ... maybe some others.

 

[dshearer]

It seems very likely to me that the smell would have prompted the glove compartment and console to be searched, however in what I was told there was never any indication that the officer suspected there was anything illicit in the vehicle. He has only told myself and a couple of others he called the night it happened about the incident as well as his lawyer.

He also mentioned that the officer took note of the shopping bag because he had an item he'd just bought that still had a tag on it. The officer subsequently informed his employer about what he found, resulting in the guys termination (not sure if it was for suspected theft or because the officer informed them of the drugs found?).

Let me reset and state again I don't want to make excuses, just find out what options he has and what kind of repurcussions he's looking at as well as things he could use in his favor.

I'm thinking hes going to owe the city some $$$ and be on probation for a little while...?

 

[justalayman]

any idea what he is actually charged with


and since size is relative, what is a small sack of marijuana?

 

[dshearer]

any idea what he is actually charged with

and since size is relative, what is a small sack of marijuana?

He was issued a citation for the pipe and scale and they were confiscated. He was then arrested and charged with possession of marijuana and arraigned the next morning after spending a nice evening in a muni holding tank.

I am unsure of the actual amount, but he said it was well below the 30 grams or however much is the threshold for going from possession to intent to distribute.

An eighth if I just had to guess. But that number is very crucial...

 

[StevenJ_420Law]

Probable cause or no probable cause is not really a defense issue - the validity of the search can and likely should be be challenged in this matter; probable cause would be the states burden in response to a motion to suppress. So that is up to your friend and his attorney, presuming he plead not guilty.

Often people ask questions similar to "Hey, can the police do this?". The police did it, so that question is answered for you. The issue now has to be formally and properly raised and addressed to the court to ensure that his rights are protected. In other words, I'm of the opinion you should usually challenge the state on that issue.

I dont know your friend so I dont know if he is a moron or not, but I would disagree with you that your friend that he "deserves what he gets", Texas laws on marijuana are literally barbaric.

 

[BOR]

I would, too ... but, there are a couple of slim possibilities that come immediately to mind. A custodial arrest involving an impound of the vehicle ... a search for paperwork involving the vehicle that was not presented initially ... the odor of marijuana ... maybe some others.

Maybe TX has similar case law as CA does; In re Arturo D., 38 P.3d
433 (Cal. 2002).

If the driver was aksed for a registration and could not produce it, maybe the glove box was searched for it?

I keyed in Arturo and there came up an analysis of Gant, seperate of the decision, and cited arturo and one state did not permit such as arturo did, but it was not TX.

 

[StevenJ_420Law]

Maybe TX has similar case law as CA does; In re Arturo D., 38 P.3d
433 (Cal. 2002).

If the driver was aksed for a registration and could not produce it, maybe the glove box was searched for it?

I keyed in Arturo and there came up an analysis of Gant, seperate of the decision, and cited arturo and one state did not permit such as arturo did, but it was not TX.

.. For the record re Arturo, there is more to it than just reg - the driver did not have a license (preGant arrestable offense obviously + impoundable offense (inventory) ) AND registration and the driver said he wasnt the owner of the vehicle and did not produce registration (as opposed to denying that there is registration in the vehicle)... so there is some wiggle room.

 

[tranquility]

Please don't distinguish cases. It points to poster understanding of the law.

Especially when the reference is irrelevant as to jurisdiction or the facts and legal issues, giving obvious facts which have already been supplied only serves to point out that one needs to work though the cases from the bottom up (rather than the top down) to really understand the case law on any issue.