We covered a story last November about a case being thrown out because no potential jurors would convict someone over a bag of weed.
It turned out to be the most viewed story of 2015. It also is turning out to be the most viewed story of 2016 as well. So we got to thinking about this case and how many other ways someone could get out of an arrest for marijuana. Cannabis users may have more rights than they realize.
If you are under investigation for an alleged marijuana offense of have already been busted, there are several good defenses available to you. Most of these defense involve "Motions to Suppress" the pot seized illegally by the police in violation of your Constitutional Rights!
When a judge grants your Motion to Suppress, all evidence illegally seized by the cops is tossed out. Without this evidence, the case is going to be dismissed and you just walk merrily out of the Courthouse.
When it comes to beating the rap for a pot arrest, here's a few possible ways to wiggle out of the hot seat:
1. Jury Nullification
According to Wikipedia, Jury nullification occurs in a trial when a jury acquits a defendant, even though the members of the jury may believe that the defendant did the illegal act, yet they don't believe he or she should be punished for it. This may occur when members of the jury disagree with the law the defendant has been charged with breaking, or believe that the law should not be applied in that particular case.
A jury can similarly unjustly and illegally convict a defendant on the ground of disagreement with an existing law, even if no law is broken (although in jurisdictions with double jeopardy rules, a conviction can be overturned on appeal, but an acquittal cannot).
2. An Illegal Stop, Detention, or Search
If police illegally stop you in a vehicle or on the street and find drugs either on your person or in the vehicle driver's compartment, they must have a Constitutional basis for both the stop and the search. If either the detention or stop was Unconstitutional, anything found during a search afterwards was illegally obtained and must be suppressed!
One Washington state attorney stated, "I have had many, many cases thrown out of court because police violated my client's Constitutional Rights by conducting illegal seizures and searches."
3. An Invalid Search Warrant
Many drug cases, particularly marijuana cultivation cases involving a search of your home or business, are dismissed because of defects in the Search Warrant. If the Warrant has specific defects, the Court will rule the search Unconstitutional and suppress and drugs or drug related evidence. Again, this almost always results in dismissal of the case against you.
A Search Warrant may be invalid for a variety of reasons including:
- A lack of probable cause.
- Information used to get the warrant was false, incomplete, or misleading.
- The warrant was obtained primarily on information provided by an anonymous, unreliable informant/snitch.
- During the search, the cops exceeded the scope of the search the warrant permitted.
- The warrant was "stale" (the warrant was based on old information, or was not executed within a few days after a judge issued it).
4. Lack of Possession
In order to convict you of possessing marijuana, the cops and prosecutor must have evidence that you actually possessed it. This would seem a no-brainer, but you'd be surprised how often the cops flub up on this requirement.
There are two types of possession: actual and constructive.
The most obvious form of actual possession is being busted with the weed on your person, like in your pocket or your purse.
The most common form of constructive possession is when drugs are found in your home, vehicle, or business, as the law presumes you have dominion and control over these places and are the presumed possessor of whatever is found there.
Actual Possession defenses—assuming the search was legal, it's difficult to claim that dope found in your pocket was not actually possessed. Remember that under Washington law, you don't even need to know that you have marijuana on you to be charged with illegally possessing it. However, there is a defense called unwitting possession which will often get you off in these situations (see #5).
Constructive Possession defenses—these cases are much easier to beat because the weed isn't found on you, but in an area accessible to you that you may own or reside in. Just being near some dope, even if it's in open view, is not enough to prove constructive possession. Mere proximity to the dope is not enough to prove you possessed it.
Example: You are a passenger in a vehicle with two friends. There is an accident and police search under the passenger seat and find a bag of buds. Obviously the cops can't claim you had actual possession of the dope because it's not found on your person and it isn't your car. Just because the bag was found under the seat where you were sitting does not prove you possessed those drugs, they could belong to the driver, the other passenger, a previous passenger who stashed them there, etc.
5. Unwitting Possession
This defense works well when you are in actual possession of the dope but the possession was "unwitting", that is, you were unaware of the presence of the dope. This frequently occurs during traffic stops; a passenger who is holding some pot may slip it into a jacket, purse, or backpack of another passenger to avoid being caught with the dope themselves. In such cases, you may claim that, although you technically possessed the pot, you did so "unwittingly".
6. "Fleeting" Possession
To prove that a person possessed marijuana or any other type of contraband, the Prosecutor must show more than a brief "fleeting" possession of the substance. If a friend whips out a pound baggie of big buds and you handle it briefly to admire it before handing it back or laying it down, your possession was only fleeting or transitory, because you never had dominion and control over the dope.
7. Possession of the Marijuana is Legal
Along with many other states, Washington recognizes that medicinal use of marijuana gives a person the right to possess pot in small amounts. A doctor's prescription is required, and only certain medical conditions are considered appropriate for medicinal use. Form more information on this topic, go here http://www.aclu-wa.org/...