Possession of marijuana for sale – illegal search and seizure

Regardless of how overwhelming and incriminating the evidence appears in a possession of marijuana for sale case – of how much marijuana was possessed, of how much paraphernalia was uncovered or how much cash was collected by the arresting law enforcement agency, if the evidence was discovered and confiscated as the result of an illegal search and seizure, a qualified criminal defense lawyer will, at the very least, be able to have it excluded from his or her client’s case and may even be able to convince a judge to dismiss his or her client’s case altogether. The key lies in hiring an attorney who excels in uncovering, forming and articulating this outstanding defense.

Illegal searches and seizures are primarily addressed in the Fourth Amendment to the United States Constitution, which is why it is necessary for an attorney who will employ this defense to be well versed in both California and federal law. With respect to a possession of marijuana for sale case, a “search” refers to the inspection of the accused, of his or her surroundings or of his or her property that the officer undertakes in his or her effort to collect evidence of the offense. A “seizure” typically refers to the subsequent situation where the officer takes the accused and/or any marijuana or other contraband into police custody. The government has set limits about what types of searches and seizures are reasonable and what types are not, mainly focusing on the issue of one’s “reasonable expectation of privacy”.

It should be noted that a search necessarily involves an invasion of one’s privacy – if there is no invasion, a search may not have even taken place. For example, if an individual is openly cultivating marijuana in his or her backyard and has his or her scales and other paraphernalia out with it, visible by anyone on the street (which would include a police officer) or to anyone flying over his or her yard, a search for the drug would be unnecessary, since there would not be a “reasonable” expectation of privacy in this type of situation. However, if all of this evidence was located in an enclosed area, not visible to anyone not inside the area, and law enforcement had to enter the structure to see it, a search would have taken place. Searches and seizures are legal (with and without search warrants), but only if law enforcement can justify their actions given the circumstances that surrounded the charged event.

Searches that are executed pursuant to a pre-approved search warrant are generally considered reasonable as long as the search adhered to the requirements listed in the warrant. For example, if the police had reason to believe that the marijuana being possessed for sale was located in the suspect’s car, the warrant would give them the authority to look in the garage where the car was being stored, but would not give them the right to open a box that was also being stored in the garage. The general rule is that evidence that is collected during a proper search may be properly seized if related to the alleged offense. However, if it is proven that the warrant was invalid – for example, the judge relied on false or misleading statements by the police) – then the subsequent seizure would also be invalid.

Because possession for sale cases frequently involves constructive or joint possession of the marijuana, consent may also become an issue with respect to a legal or illegal search, which is another area that a savvy attorney would explore in an effort to argue that there was an illegal search and seizure with respect to his or her client and the client’s property.

To learn more about how an illegal search and seizure (and a variety of other defenses) can result in a dismissal of a possession of marijuana for sale charge, contact the exceptional criminal attorneys at The Kavinoky Law Firm today for a free consultation.