How to Beat a Drug Charge Based on Your 4th Amendment Rights

My question involves criminal law for the state of: TX

I was parked in my drive way with my car off talking to my gf on the phone when all of a sudden a cop turns the corner and sees my cellphone light before parking directly behind me. Before he steps out, I step out of my vehicle asking the officer what was wrong. He said that there have been a lot of car break ins recently and asked if I owned the car. I stated yes and then he proceeded to ask for my ID. My mistake was opening the car door and retrieving my ID because as soon as I opened the door he could smell marijuana. Once he smelled it he asked if I smoke which I said no and then asked if I smoked weed which I said no. He then used his flashlight to look into my car and saw 2 grams of bud. He asked if it was mine and I stated no that it was my friends. He then quickly hand cuffed me and searched me before throwing me into the back of his SUV.

I've already spoke to a couple of lawyers in the San Antonio area and they said that I have a good chance of fighting this and getting it expunged because my 4th amendment right was violated. However, before I proceed with anything I would like some advice from peers. BTW this is my first offense and I'm a medical student who's one year away from graduating. My biggest fear is that this class B misdemeanor will ruin my future....(not sure if this holds any weight, but my gf was on the phone the whole time). Any advice is greatly appreciated.

You will want to ask the lawyers some questions to pin down what they think they may be able to do for you and what the cost will be. You didn’t say but I assume that you were charged with possession of the weed. I assume that the lawyers were saying that you’d have a good chance to get the drug evidence suppressed and then from there get the drug charges dismissed and the arrest record expunged. The problem is that based on your description of events I do not see a clear violation of your right to protection against unreasonable searches and seizures.

Your facts suggest that the encounter with the officer occurred at night. The officer saw your cell phone light near your car and evidently thought you might be someone looking into a car to see if there was anything in it worth stealing. That would be good enough for the reasonable suspicion needed to investigate and talk with you to see what was going on. You evidently willingly answered the officer’s questions and voluntarily went into your car to get ID. The officer then apparenlty smelled marijuana, which would be sufficient to further investigate whether you had weed in your possession (though not necessarily probable cause to justify getting a warrant or conduct a warrantless search). One of the protections of the Fourth Amendment to the U.S. Constitution is a guarantee against unreasonable searches and seizures. That guarantee applies to state and local governments because of Supreme Court interpretations of the 14th Amendment. Thus, the general rule would be that the officer would need to get a warrant to search for and/or seize the drug and to get that warrant the officer needs to show the judge probable cause to believe evidence of a crime will be found in the place the officer wishes to search.

However, there are some exceptions to that. One of those exceptions is the plain sight exception. If the drugs were lying out in plain sight such that the officer did not have to enter private areas to find it then it is fair game to seize. After all, if you didn’t take any effort to hide it from public view then you have made no effort to keep it private. If the officer could see the drugs while standing outside the car and merely shining a flashlight into it, e.g. the drugs were on a seat, center console, dashboard, or some other place easily visible to anyone peering to the car from the outside, it would be considered to be in plain sight. In case in which the police seized evidence after peering into a car by flashlight, the U.S. Supreme Court held that it was not a violation of the defendant’s 4th Amendment rights:

Applying these principles, we conclude that Officer Maples properly seized the green balloon from Brown’s automobile. The Court of Criminal Appeals stated that it did not “question . . . the validity of the officer’s initial stop of appellant’s vehicle as a part of a license check,” 617 S.W.2d at 200, and we agree. Delaware v. Prouse, supra, at 440 U. S. 654-655. It is likewise beyond dispute that Maples’ action in shining his flashlight to illuminate the interior of Brown’s car trenched upon no right secured to the latter by the Fourth Amendment. The Court said in United States v. Lee, 274 U. S. 559, 274 U. S. 563 (1927): “[The] use of a searchlight is comparable to the use of a marine glass or a field glass. It is not prohibited by the Constitution.” Numerous other courts have agreed that the use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection.

Likewise, the fact that Maples “changed [his] position” and “bent down at an angle so [he] could see what was inside” Brown’s car, App. 16, is irrelevant to Fourth Amendment analysis. The general public could peer into the interior of Brown’s automobile from any number of angles; there is no reason Maples should be precluded from observing as an officer what would be entirely visible to him as a private citizen. There is no legitimate expectation of privacy, Katz v. United States, 389 U. S. 347, 389 U. S. 361 (1967) (Harlan, J., concurring); Smith v. Maryland, 442 U. S. 735, 442 U. S. 739-745 (1979), shielding that portion of the interior of an automobile which may be viewed from outside the vehicle by either inquisitive passersby or diligent police officers. In short, the conduct that enabled Maples to observe the interior of Brown’s car and of his open glove compartment was not a search within the meaning of the Fourth Amendment.

Texas v. Brown, 460 U.S. 730 (1983)(footnotes omitted). So long as the officer was justified in being able to stand where he was at the time (and nothing you have stated so far indicates he lacked any justification to be there) simply turning on his flashlight and peering into your car from the outside was no violation of your Fourth Amendment rights. Upon seeing the drugs in plain view in the car they would be subject to seizure. If the seizure was good, there is nothing in your post that suggests any other defense here to a possession charge. If, on the other hand, the officer had to go inside the car and rummage around to find the drugs, that’s a dfiferent matter.

So ask any attorneys you consult who think that there is a “good chance” to beat this on 4th amendment grounds to explain their reasoning and how they’d deal with the Texas v. Brown case in arguing to the court that the search wasn’t good. You can access the full case at the link I provided and print it out for the lawyer. Perhaps some fact you did not mention might lead to suppression of the drug evidence, but so far I’m just not seeing it. Ask the attorney about any other defenses he or she thinks might be available and how likely it is that the defense would succeed. Finally, ask the attorney about alternative programs for first time offenders. You may qualify for a diversion program that would avoid a drug charge conviction. For example, see the information about the Tarrant County first time drug offender program.

Even if you avoid conviction on this, you may end up spending a lot of money to deal with it. It might also put at risk your medical career. For a med school student close to graduating, doing drugs that might end up getting you a criminal record is a particularly bad choice. A state medical board will certainly have some concerns about a doctor who violates the laws concerning drugs when doctors are expected to follow the laws regarding prescribing and dispensing drugs in their practice. I suggest that whatever the outcome on the present charges that you give up weed going forward unless you move to someplace where weed is legal. And if for some reason you can’t do that, at least don’t carry or keep drugs in your car and certainly don’t leave them anywhere in plain sight. Traffic stops are the most common way cops find illegal drugs, so having any illegal drugs in your car is a very bad idea.

I guess I didn't explain myself well. I was inside the car with my cellphone talking to my gf. Then the cop parked behind my vehicle. Then I stepped out of the vehicle as he stepped out of his. I wasnt using a light to look inside the vehicle or walking around my car at the time he saw me.

Also the drugs were not in plain sight. He arrested me first then started searching my vehicle once I was in the back of his SUV. Also I spoke to a lawyer today who said I might have a chance of violation of trespassing as the car was in my drive way and I wasn't doing any suspicious activity or violating any laws...any insight is highly appreciated

Then hire the lawyer. We don't have access to the full facts. The officer is likely to have a very different account of the encounter.

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Quoting Angryzoo

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I guess I didn't explain myself well. I was inside the car with my cellphone talking to my gf. Then the cop parked behind my vehicle. Then I stepped out of the vehicle as he stepped out of his. I wasnt using a light to look inside the vehicle or walking around my car at the time he saw me.

Also the drugs were not in plain sight. He arrested me first then started searching my vehicle once I was in the back of his SUV. Also I spoke to a lawyer today who said I might have a chance of violation of trespassing as the car was in my drive way and I wasn't doing any suspicious activity or violating any laws...any insight is highly appreciated

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You said yourself that when you opened your door, he smelled marijuana.

He did, but he had no reason to park in-front my drive way as I wasn't doing any suspicious activity.

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Quoting Angryzoo

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He then used his flashlight to look into my car and saw 2 grams of bud. He asked if it was mine and I stated no that it was my friends. He then quickly hand cuffed me and searched me before throwing me into the back of his SUV.

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Quoting Angryzoo

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Also the drugs were not in plain sight. He arrested me first then started searching my vehicle once I was in the back of his SUV.

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In your first version, the officer saw your drugs, observing them from a lawful vantage point outside of your vehicle, arrested you and then searched your car. Now you're suggesting that he found the drugs only after you were arrested. Which is it?

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Quoting Angryzoo

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He did, but he had no reason to park in-front my drive way as I wasn't doing any suspicious activity.

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There have apparently been a lot of theft from auto reports. Someone in a car with a light on might seem suspicious depending on the totality of circumstances, which we don't have.

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Quoting Angryzoo

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I guess I didn't explain myself well. I was inside the car with my cellphone talking to my gf. Then the cop parked behind my vehicle. Then I stepped out of the vehicle as he stepped out of his. I wasnt using a light to look inside the vehicle or walking around my car at the time he saw me.

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Then he may well have thought you might be someone who had already broken into a car. In any event, when he got out of the car, you got out of yours to talk to him. So there is an issue here of whether this was a “stop” or not and if it was, whether what the cop saw combined with his knowledge of claimed vehicle break-ins would be enough for the reasonable suspicion needed for the stop. It is not, at least as you describe it, clear cut in your favor.

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Quoting Angryzoo

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Also the drugs were not in plain sight. He arrested me first then started searching my vehicle once I was in the back of his SUV. Also I spoke to a lawyer today who said I might have a chance of violation of trespassing as the car was in my drive way and I wasn't doing any suspicious activity or violating any laws...any insight is highly appreciated

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Something is missing here. In order for the cop to actually arrest you the cop would need probable cause to believe you had committed a crime. The smell of marijuana alone would not be enough for that. Yet you say he arrested you before finding the drugs. Did the officer actually tell you that you were arrested? If so, what, if anything, did the officer say he arrested you for? The smell might have been enough for probable cause to get a warrant to search the car. Did the officer get a warrant prior to the search? And where exactly were the drugs? How hard did the officer have to look to find them? All the details matter. Whether your fourth amendment rights were violated is a very fact intensive matter. Depending on the exact facts (and here it will matter as well what the cop says happened, too) it might be possible to get the drugs evidence suppressed. You’ll want a good lawyer for that.

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Quoting Angryzoo

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My question involves criminal law for the state of: TX
BTW this is my first offense and I'm a medical student who's one year away from graduating. My biggest fear is that this class B misdemeanor will ruin my future....(not sure if this holds any weight, but my gf was on the phone the whole time). Any advice is greatly appreciated.

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This isn't really relevant to the logistics of your legal case at hand, but I will say that I have a couple of friends who have been medically licensed in other states with misdemeanor marijuana convictions. There are also a whole slew of people with MJ convictions on Student Doctor Network, if you ever visit that site. These people were also able to get their DEA number. From my understanding, the charges that will REALLY hurt you are the felony drug crimes like dealing offenses, or possession offenses for prescription narcotics and street drugs. I have yet to hear a single anecdote about an aspiring doctor with a felony drug conviction, even with some sort of deferral program, getting licensed. Though, I have heard of existing licensed docs with felony drug convictions getting their licenses reinstated after a short suspension. Even heard of sex-offending docs getting their licenses reinstated.