Minor Charged with Drug Possession at School

My question involves juvenile law in the State of: oklahoma.

My 15 year old son exited a vehicle parked in the school parking lot and started walking to class. He was a good 20-30 feet away from the vehicle when a police officer pulled up behind the exited vehicle and called for him and a few others to return. The police officer then asked my son if he smoked weed and my son answered he had not since the summer. He then asked if that was his car in which he replied no. The officer then asked who the car belong to and which he responded with the answer the cop then asked where he the owner was . My son told him he was already in school. The cop then saw that the car door was unlocked opened it stuck his head inside smelled weed and began to search the car. During the search he found less than half hey gram of marijuana and a grinder in the closed center console. My son has been charged with possession of marijuana and possession of paraphernalia on school property. I am at a loss to understand how these charges could even be filed. He questioned a minor without a parent or attorney present by asking him if he smoked weed (asking him if he committed a crime which 1- he should have been mirandized and 2- still could not have happened without the minor having a parent or attorney present) and he did not have probable cause or permission to search the vehicle due to the fact he did not state he smelled marijuana till after he illegally opened the car door. How can I go about getting these charges dismissed?

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Quoting Stephanie Champion

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How can I go about getting these charges dismissed?

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Well, you can’t get the charges dismissed. But you can hire a lawyer for your your son and the lawyer might be able to eventually get the charges dismissed.

Understand that a 15 year-old suspect can indeed be questioned without a parent or guardian present. If your son was in custody at the time of questioning then the officers would have had to advise him of his Miranda rights. If your son was not yet in custody at the time of questioning then the Miranda advisement was not required. If the Miranda advisement was required and not given then the remedy for that is suppression of the incriminating statements your son made during that questioning. It does not require dismissal of the charges. If the state has sufficient other evidence to prosecute it may go forward with that other evidence. Your son certainly could have chosen to remain silent and asked for a lawyer at any time. If he did not choose to ask for a lawyer then the officers didn’t have to wait for a lawyer before questioning him.

As to the search, the problem is that the vehicle that was searched was evidently not your son’s vehicle. As a result, it appears that your son had no constitutionally protected privacy right in that vehicle and would have no standing to contest the search. Without knowing all the facts the officer had available to him at the time of the search it is not possible for me to say if the search was valid, but even if it wasn’t good that won’t help your son if he lacks the standing to contest the search.

In short, while you seem to believe it is pretty clear cut that your son’s rights were violated and the case should be dismissed, it is not nearly so clear from the facts you presented. It may well be that the state has a good case to bring against your son. If you want a chance to find defects in the state’s case, I think you’ll need to hire a lawyer to review all the evidence in the matter to see what options your son may have.

I fear you have been watching too many police shows on television where the law is misrepresented for entertainment purposes.

The initial contact with your son was consensual rather than custodial and neither a Miranda warning nor the presence of a parent was required. In addition, based solely on your post your son said nothing incriminating, so Miranda would not come into play.

You son was observed walking away from inside an unattended vehicle which he admitted was not his. That alone is unusual and would raise suspicions as to whether he had just stolen the car, was attempting to steal it, was attempting to steal something from it, was hiding contraband in it, the list of possibilities is endless. In turn, this would give the officer probable cause to enter the vehicle without a warrant to see if someone had hot wired it, punched the ignition, attempted to remove a stereo, hid contraband. etc. Upon smelling marijuana this would give the officer further cause to search the vehicle for drugs. In addition, because the vehicle did not belong to your son, he has no standing to object to the search.

Because your son was in the vehicle, he is considered to have had "constructive possession" of the drugs found inside in that he had the ability to exercise physical control over them.

In short, you're not going to get this dismissed based on what you posted.

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Quoting Taxing Matters

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Understand that a 15 year-old suspect can indeed be questioned without a parent or guardian present. If your son was in custody at the time of questioning then the officers would have had to advise him of his Miranda rights. If your son was not yet in custody at the time of questioning then the Miranda advisement was not required.

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In Oklahoma, per statute, "No information gained by a custodial interrogation of a youthful offender under sixteen (16) years of age... nor any evidence subsequently obtained as a result of such interrogation shall be admissible into evidence against the youthful offender... unless the custodial interrogation... is done in the presence of the parents, guardian, attorney, adult relative, adult caretaker, or legal custodian of the youthful offender or child." Oklahoma Statutes, Sec. 10A-2-2-301. So if a court determines that the minor was in custody (that is, the minor "is in law enforcement custody or while that youthful offender or child is being deprived of freedom of action in any significant way by a law enforcement officer") at the time of the questioning, he's in a good position to try to keep his statements out of evidence. But it is not clear that any of the minor's statements were self-incriminating, or that the search of the vehicle (which the minor swore was not his) could be deemed to have resulted from the minors answers to the officers questions.

I suspect that the officer's version is along the lines of, "While patrolling I observed a group of minors in a parked vehicle. As I approached they quickly exited the parked vehicle. I exited my patrol vehicle and approached the minors, and noted a strong smell of marijuana smoke. The minors appeared to be intoxicated. I asked them if they had been smoking marijuana and they denied having done so. I asked whose car they had been in and they all denied ownership of the vehicle. I asked where the owner was, and the responded that he was in the school. I asked what they were doing in the car if it was not theirs and the owner was not present, and they offered no explanation. Upon investigation of the vehicle I found that it was unlocked, and upon opening the door smelled a strong odor of marijuana." etc.

You need to realize that your son may not be telling you the entire truth.

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Quoting Mr. Knowitall

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In Oklahoma, per statute, "No information gained by a custodial interrogation of a youthful offender under sixteen (16) years of age... nor any evidence subsequently obtained as a result of such interrogation shall be admissible into evidence against the youthful offender... unless the custodial interrogation... is done in the presence of the parents, guardian, attorney, adult relative, adult caretaker, or legal custodian of the youthful offender or child." Oklahoma Statutes, Sec. 10A-2-2-301. So if a court determines that the minor was in custody (that is, the minor "is in law enforcement custody or while that youthful offender or child is being deprived of freedom of action in any significant way by a law enforcement officer") at the time of the questioning, he's in a good position to try to keep his statements out of evidence.

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Ok, assuming he was in custody the statements likely could be suppressed, and that is true even without the OK statute if, as the OP states, the officers did not give the Miranda advisement. But if he was not in custody then neither the OK statute nor the Constitution would exclude the statements of the kid from being admitted into evidence.

In any event, as you note, it’s not clear the kid said anything particularly incriminating. The main piece of evidence here is the weed found on the search of the vehicle. Unless that evidence can be suppressed it seems unlikely the charges will be dismissed, regardless of whether the kid’s statements are suppressed.

Considering I drug tested him that day and 3 days later, and he passed BOTH times, I think my son is telling me the truth. The police officer called them BACK to a vehicle and it was parked in the school parking lot.

And I have spoken with an attorney and he stated I am correct that his rights were violated. He was arrested and questioned without my knowledge or approval. The pinch of marijuana was not in plain site giving the officer no standing of probable cause.

The attorney also advised me to try and save money considering it was simply muncipal citations given and not a felony charge.
So thank you for at least giving me the state statute on the interrogation of minors.

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Quoting Stephanie Champion

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And I have spoken with an attorney and he stated I am correct that his rights were violated. He was arrested and questioned without my knowledge or approval. The pinch of marijuana was not in plain site giving the officer no standing of probable cause.

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But the attorney hasn’t heard the state’s arguments on these matters, and that might change his view. If your son was questioned before he was in custody then the questioning was not a violation of either his constitutional rights or his rights under the state statute. And, moreover, if your son said nothing incriminating it won’t matter anyway because the sole remedy for a violation here would be suppression of the statements your son made.

As to the search, it may well be that the officer lacked probable cause for the search. But your son likely has no standing to challenge the search, which the attorney perhaps did not consider. If your son has no standing to challenge search then the results of the search may be used against him.

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Quoting Stephanie Champion

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The attorney also advised me to try and save money considering it was simply muncipal citations given and not a felony charge.

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Whether to just pay the fine or whatever and let it go at that is, of course, a choice you and your son can make. It would likely cost a fair bit of cash to pursue the suppression motions that would be necessary to set up a motion to dismiss this charge, and as I’ve said it’s not a slam dunk your son would win on those. If you choose not to contest it then hopefully the conviction won’t have any lasting consequences for him.

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Quoting Stephanie Champion

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He was arrested and questioned without my knowledge or approval.

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If the lawyer told you that your son could not be arrested without your knowledge or approval, find a different lawyer who knows what he's talking about.

As you have already been told, restrictions on questioning relate only to custodial questioning, and it's not clear at this point that any custodial interrogation occurred.

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Quoting Stephanie Champion

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The pinch of marijuana was not in plain site giving the officer no standing of probable cause.

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You certainly are insistent upon minimizing your child's criminal activity.

Your son being asked questions when the officer saw him and your son being asked questions if he had been taken into custody are Not The Same Thing.

If your son is still hanging around those that do illegal things like smoking pot, and you continue to try and bail him out it is going to cost you a lot of money and he is never going to learn the consequences of breaking the law. It won't be long until he is in jail and there is nothing that you will be able to do about it.