Every POM (Possession of Marijuana) case is different. But most of them start the same way. This similarity helps a drug charges Rochester, NY lawyer prepare effective defenses to POM cases.
Assume Mike is at a house party. Two people get in a fight, and officers respond to a disturbance call. While there, they conduct a safety sweep of the apartment. During this sweep, they discover a stash of weed in the living room. They arrest everyone in the living room, including Mike, for possession of marijuana.
That’s one scenario. To examine the second common scenario, assume that Mike leaves the party with friends. He is in the back seat. Officers pull over the vehicle during the ride for an unrelated traffic violation. The vehicle owner, who is not Mike, gives officers permission to search the car. After finding marijuana in the glove box, they arrest everyone in the car, including Mike, for possession.
The stakes are rather high. Possession of more than two grams of marijuana (about four tablespoons) is a misdemeanor in New York. Lawmakers recently approved some partial decriminalization and expungement measures, but they only apply to lower levels of possession, in most cases.
In drug, pornography, weapon, and other contraband possession cases, the state must produce the item in court. This requirement is not easy for the state to meet, in many cases. For example, chain of custody issues sometimes taints the evidence. If prosecutors cannot account for every link in the chain of custody, such as transfers from the field to the police evidence locker, there might be a reasonable doubt as to authenticity.
Illegal searches are even more common. Police rarely have search warrants in drug possession cases. So, prosecutors must rely on a narrow search warrant exception, such as:
This exception gives officers the right to search dwellings if they believe someone might be in trouble. During these sweeps, they may seize any contraband they see in plain view. More on that below. These security sweeps are just that. They are brief walk-throughs. Officers cannot poke into every nook and cranny.
Owners or apparent owners, like a driver who does not own the car, can give consent to a vehicle, dwelling, backpack, or other property searches. Consent is a voluntary, affirmative act. There’s a difference between active consent and “that’s fine, officer”. Additionally, owners can revoke consent after they give it.
As the name implies, an item is in plain view if it is visible to the naked eye. These seizures are admissible if officers were legally in that place then. So, if a drug charges Rochester, NY lawyer casts doubt on the reason for the law enforcement contact, a subsequent plain view seizure might be illegal.
Special rules might apply if the defendant was on parole or probation. As a condition for supervised release, defendants frequently give blanket authorizations allowing peace officers to conduct random searches.
Drug Charges Rochester, NY and the Nature of the Substance
Before lawmakers legalized industrial hemp, this element of a POM case was a mere formality. Today, it could mean the difference between a successful resolution and extended jail time or court supervision.
Physically, hemp and marijuana are indistinguishable. They look alike, feel alike, and smell alike. A THC content test is the only way to tell the difference, at least beyond a reasonable doubt. If the Tetrahydrocannabinol level is less than .3 percent, the substance is hemp, not marijuana. End of story. Circumstantial evidence, such as the way the defendant used the substance, is usually not enough to establish the nature of the substance beyond a reasonable doubt.
Lately, a drug charges Rochester, NY lawyer may have dealt with this issue regarding marijuana edibles. People often buy brownies and other edibles in Massachusetts, where they are legal, and bring them to New York, where they are illegal. Once again, a THC content test is the only way to tell the difference. Claims about marijuana content percentages on product labels are usually insufficient.
Count on a Tough Drug Charge Defense Attorney
Possession of marijuana charges do not always hold up in court. For a free consultation with an experienced drug charges Rochester, NY lawyer, contact the Law Office of Frank Ciardi. We routinely handle matters in Monroe County and nearby jurisdictions.