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My word vs Officer

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NoviceMan

Junior Member
Wisconsin

I am being charged with a non-criminal offense (forfeiture), for possession of marijuana. The only evidence the City has against me is a police report that claims I admitted to having smoked, which I would disagree with (I didn't say anything after answering the door). Because its non-criminal, I will not be appointed an attorney. Also, my word against a police report seems futile. But can something I supposedly said be held against me in court? It wasn't an arrest, so I was never given Miranda rights.

I would also like to state my concern over the warrantless search of my friend's apartment. When he spoke to my friend at the door, he claimed to smell marijuana and entered to perform a search. But he already accepted a plea. Can the bag the officer confiscated be used against me if I don't live there?

I know this may seem minor, but I am going to trial and have no legal representation. I am worried they will increase the fine.
 


davidmcbeth3

Senior Member
Depends on the statement of the officer... to what time period did you admit smoking pot..20 yrs ago , today ??.... so even if you did admit to smoking pot it may not be enough.

See, you cannot testify directly against the officer's statement and expect to be believed.
 

justalayman

Senior Member
Can the bag the officer confiscated be used against me if I don't live there?
generally, yes but it would depend on how it is being used against you.

When he spoke to my friend at the door, he claimed to smell marijuana and entered to perform a search.
So, was somebody smoking pot? What did your friend say when the officer asked to come in or if he didn't ask, what did your friend say to the officers entrance?

how did the cops end up at your friends place to begin with?

If all of this is a non-criminal offense, what does any of it all matter anyway. The most you lose is $$$$.
 

NoviceMan

Junior Member
It happened about a month ago. I filed a motion of discovery on the report. I understand that I can't fight the officer's word, I just wouldn't think that I can be convicted solely on my own statement.

There was marijuana being smoked in the apartment. I am reluctant to say that my friend may have implied consent. The officer grouped several statements, "I smell marijuana" "Do you know that's illegal?" "Can I get that from you?" to which my friend responded "yes". To which the officer began to enter and my friend backed away from the door. I don't know how much of a case I have there, as the consent seems implied, but nevertheless it was still warrantless. I've read that the smell of marijuana is probable cause, but I also found this:

¶19 In a related argument, the State claims exigent circumstances existed before police knocked on the door because the smell of burning marijuana indicated a destruction of evidence. However, this argument is not supported by case law. In Kiekhefer, the court stated "[a]lthough the agents smelled an odor of burning marijuana, this does not justify the warrantless entry either. Rather, the agents had probable cause to secure a search warrant, but they had no right to make a warrantless entry into Kiekhefer's room." Kiekhefer, 212 Wis. 2d at 479; see also Johnson, 333 U.S. 13; Hughes, 233 Wis. 2d at 293-94 (distinguishing Kiekhefer because officers entered the room based on odor of marijuana alone with no other facts to support exigency).
I would think that the officer claiming he smelled marijuana created the exigency, and that he only had cause to secure a warrant. There was nothing in plain view. But I'm no expert, just a thought.

To be honest I felt offended when I heard the officer's statement that I admitted to my own guilt, and refused a plea. He said I could only get the plea if I paid by the end of the month anyway, to which he said if I can't that they revoke my license and some other scare tactics. This month's already really tight, and the fine is putting me over budget. It will remain non-criminal, but the fine can increase to $1,000.
 
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justalayman

Senior Member
To which the officer began to enter and my friend backed away from the door.
that and the "yes" is pretty clear. He did not object. While it isn't required to object, your actions can be considered as consent in some situations, such as this.

I would think that the officer claiming he smelled marijuana created the exigency, and that he only had cause to secure a warrant.
The officer cannot create exigent circumstances. Either they are there or they aren't. But it appears that is irrelevant since your friend allowed the search.

Your admission of having smoked is not going to support a charge of possession. I presume is it based on what they found in the apartment.

You never answered the question of why the police were even there.

as the consent seems implied, but nevertheless it was still warrantless.
there is no need for a warrant if it was by permission.
 

NoviceMan

Junior Member
The police we there because they received a tip that someone they were looking for was at the residence. We had no idea who the person was he was referring to. Our apartment door was the only one he knocked on.

I guess I can concede that the search was reasonable.

Your admission of having smoked is not going to support a charge of possession. I presume is it based on what they found in the apartment.
Well so it comes down to that. The bag wasn't mine, and I'm a guest at the apartment. Can it be used against me? When I asked the DA why I was being charged, he referenced the police report where officer wrote that I had admitted to smoking. Do you think I have a case? Or should I try to renegotiate my plea?

*Just a fun piece of the story. He wanted to take us down to the squad car after cuffing us (but we weren't "under arrest"). After convincing him that putting on a jacket is now impossible without removing the cuffs, he agreed to get his things and come back, adding that if the door is locked, he'll have to kick it down. He checked it, but sure enough when he got back, we heard him try to open it, IT WAS LOCKED! My friends went into a panic!
 

justalayman

Senior Member
You were under arrest whether he wants to accept it or not.

whether you want to fight this or not is up to you. I can't see a possession charge based totally on your claimed admission you smoked some pot.

The bag wasn't mine, and I'm a guest at the apartment. Can it be used against me?
why couldn't it? Possession does not mean ownership. Effective control is considered to be possession. I have no idea the details of your situation but depending on the details, it could very well result in your charge of possession.
 

NoviceMan

Junior Member
Could I file a wide range motion of discovery to see all evidence that they plan to use against me? So if the bag is being used against me I could see about a motion to suppress.
 

justalayman

Senior Member
of course you have the right to know what evidence is being used against you. You cannot create a defense without knowing what you are fighting.
 

NoviceMan

Junior Member
of course you have the right to know what evidence is being used against you. You cannot create a defense without knowing what you are fighting.
Thank you so much for all your help. I will file my motions to see all the evidence.

I searched "effective control on possession of marijuana" and found some interesting sites. Even with the bag as evidence, they have to prove my possession of it. Since the apartment is not mine, I do not have dominion over anything the officer found. However, there appears to be different definitions of possession, namely physical, constructive and joint possession. Obviously physical does not apply. Reading joint and constructive gets a little confusing, but seem refutable. Both seem to apply, and would be supported by a police report claiming I smoked. However, we were never in the same room. With that I think only constructive applies, as the drugs were accessible through my friend.

From here the story breaks down. I was the one to answer the door because my friend was in his room. When my friend took over the door, I left to crash on the futon I was sleeping on in a different room. It was then that the officer claimed to smell marijuana and entered to perform a search. After awhile, I was called into the my friends room where I was handcuffed (Where I supposedly admitted guilt, although I didn't actually engage in conversation with the officer) Lack of knowledge as to the whereabouts of the marijuana would be a reasonable defense against that. After all, my friend showed the officer where to find the stash, not me. I wasn't in the room at that time.

Would I have any problem if the police report didn't match my story? Just as the case where he claimed I admitted guilt? Also, couldn't I suppress comments I may have made because my miranda rights were never given during the "arrest".

Oh, and one more thing. Could I somehow submit a drug test as evidence?
 
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NoviceMan

Junior Member
My friend just contacted me, apparently when they called in to set up a payment arrangement, they were informed they would be subpoenaed... things just got way more complicated. :(
 

NoviceMan

Junior Member
With my friends being subpoenaed, it tells me they probably do not have any hard evidence against me other than what I supposedly said. Although, I think it would be hard to convince a judge I didn't smoke marijuana because of the officer's claims and my friends being forced to testify. [[ It's funny because I asked the city attorney if I could have my friends testify on my behalf that I didn't actually admit to having smoked, to which he responded that they are unreliable. Now he's using these "unreliable" witnesses to help convict me. ]] However, maybe I could point out inconsistencies between the police report and my friends statements through cross-examination... Damn I need a lawyer :(

Anywho, I want to ask a more interesting question. Is being under the influence of marijuana (or any controlled substance) illegal? Mind you, I was at a residence. I can't find any specific law detailing this scenario (Wisconsin), let alone in the list of violations listed under the municipal jurisdiction I am being convicted in. I read in military law that the presence of a drug in your system is not a crime. So the city's assumption is that being under the influence implies having possessed? However, couldn't this form of possession pass as fleeting/momentary? And I would think I could raise reasonable doubt against hearsay.

I understand that it is my mindset to achieve the goal of not guilty. So I look for evidence to support that goal. However I am looking to the people in the forum to help raise my knowledge in the subject. So please point out any strong or weak points that I have made so that I may improve my defense.
 

justalayman

Senior Member
maybe I'm missing something but if your friend testifies to what you argue is the truth, just how is that going to hurt you? In fact, it would bolster your argument.

Is being under the influence of marijuana (or any controlled substance) illegal?
Now you're going to make me look but until then; very often, yes.
 

NoviceMan

Junior Member
Well, my friends will support the truth when it comes to my supposed confession. But while my confession is refuted, they could possibly claim to have witnessed me smoke marijuana. One friend was not in the room, but the other was. This witness could claim to have seen me smoke marijuana. (Is it reasonable to ask the witness if they in fact knew I inhaled the drug? because people can smoke and not inhale, ie. cigars [Reasonable Doubt?]) But is that witness's testimony enough for a conviction?

If so...then following the what the city attorney told me on how these witnesses would be unreliable, I could use that in my favor and attack the credibility of the witness (Witness Impeachment). They are drug users after all. And I'm assuming this is what the city attorney was thinking when he said they would be of no help against the word of the officer's report.

And could the witness testimony against me be considered hearsay? Just trying to cover all my bases.
 

justalayman

Senior Member
And could the witness testimony against me be considered hearsay?
witness testimony is not hearsay as long as they are testifying to first hand knowledge. Hearsay would be where they testify what somebody else said or claimed.

(Is it reasonable to ask the witness if they in fact knew I inhaled the drug? because people can smoke and not inhale, ie. cigars [Reasonable Doubt?])
Um, you're kidding, right? What difference do you think it makes whether you inhaled or not. Smoking is smoking.

So now, we have your friends did see you smoke marijuana which strangely enough supports the officers claim of what you told him you had done.

Would you like to wager that somebody (maybe the friend that is cutting the deal) will testify the bag of MJ was yours?
 

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