Well the SC alows warrantless searches of autos, and some states have extended to people, but the dog search throws things into doubt. I am sure the lawyer will look at it as well, but it’s annoying.
Eh? States cannot extend the auto exception to people. That was rejected in Di Re. Or so I thought.
It’s not an exception. If I smell marijuana smoke and see it coming from your vest pocket, I can search the pocket. Or if I see the outline of a crackpipe.
But I can’t find anything on google about anything other than auto searches, and I’m not going to log into westlaw and look.
I disagree, but I think it’s probably best to not argue this one out given that these are live facts. Hopefully the OP’s wife will speak to a competent lawyer before making any legal decisions. Good luck.
OP may want to check with the local chapter of NORML. They may provide some pro bono representation if they think the case has legs.
This message is mostly directed at ivn1188 and Richard Parker, I make no claim as to its materiality in FoieGrasIsEvil’s wife case.
Here (PDF) is a 2003 Kentucky Court of Appeals case where the aroma of marijuana alone permitted warrantless entry into appellant’s home. It holds that Kentucky law has a plain smell analogue to the plain view exception. Thus, plain smell gives rise to the probable cause needed to activate the automobile exception and the reasonable suspicion needed to license a Terry stop and frisk.
It’s a pity the speeding didn’t occur in your home state of Indiana, there, in Indiana v. Holley (PDF), the Indiana Court of Appeals was far more exacting in terms of what the state must show to survive a motion to suppress.
Note: I am not your lawyer and this message is for general information purposes only. Nothing in this message is to be considered as either creating an attorney-client relationship or as rendering of legal advice for any specific matter. You are responsible for obtaining such advice from your own legal counsel. No reader should act or refrain from acting on the basis of any information contained in this message without seeking appropriate legal or other professional advice on the particular facts and circumstances at issue.
I do not doubt that proposition. I just question whether the passenger of a car is subject to the automobile exception, and question whether a Terry frisk could legitimately find a joint in a cigarette case.
The cop smelled marijuana in the car. The woman got out of the car.
The dog smelled (smelt?) inside the car and did not find pot.
Dog did not smell her.
The woman had glassy eyes, spoke incoherently and drove erratically
(the cop would say). By smelling the pot why then does the cop not have
within his-her rights, and duty, to have her empty her pockets and purse?
Smelled pot…not in car…maybe on her? Legal right to search her. Pot found.
She’s busted. Correct?
The cop will say whatever he has to ,to convict her.
As a general matter, a search requires both probable cause and a warrant. So if a police officer makes a search without a warrant, he needs some exception to the warrant requirement. One such exception is the plain view doctrine, which has been expanded in some states to include plain smells.
In order for a state to apply the plain smell doctrine in this way, their courts have to decide both that the plain smell doctrine applies to people (as well as cars or homes) and that the smell of drugs constitutes exigent circumstances justifying an immediate search. Some states have taken both steps, and others haven’t; some don’t yet recognize plain smell for PC that a person has contraband, and some that have haven’t recognized it as an exception to the warrant requirement (e.g. the smell is PC for a warrant, but does not justify a warrantless search).
What county were you in? Jefferson? Shelby? Bullitt? It could make a difference.
I’m surprised no one has suggested giving up the pot habit for a while and use that money to hire a lawyer. Maybe pot is just that inexpensive?
Yeah. She got back from court a little while ago. The judge wouldn’t let her plea without getting a lawyer, so it’s been continued.
The fuck all is that they read the officer’s arrest report in court and the officer stated that she failed all her field sobriety tests, had extremely bloodshot eyes and that “she couldn’t even stand up straight”!!!
This is a HUGE pile of bullshit and we are really upset about it. Even if she had been smoking, which she hadn’t, “not being able to stand up straight” just isn’t on the menu. My wife has smoked for a long time, and it really is more of a calmative than “ooh, I’m getting real high”. I continue to allow it in the house because it really does help her. She has some kind of imbalance that causes her severe mood swings, depression and the like when she doesn’t have it.
Of course, I have told her over and over that she needs to see a doctor and maybe get a prescription for a legal drug that can accomplish the same thing, but she refuses to go.
Anyway, even if she had smoked right before the officer had pulled her over, she wouldn’t have been any of those things. I know what my wife is like after she smokes because I observe her doing it every evening. She never gets red eyes, never appears or acts the slightest bit intoxicated, never has any issues with balance, coherence or anything else.
This fucking hick cop made this shit up just to railroad her, and it’s infuriating. We cannot afford for her to get a DUI, to lose her license or for my insurance company to drop her off my policy (I know they will).
She also was told that because she as a job that she doesn’t qualify for a public defender. What kind of shit is that? We struggle to make our bills all the time and we have very little money squirrelled away. Why doesn’t the court take debt into consideration? Now we have to try to find an attorney that will accept payments, and the kicker is that since this didn’t happen in our state, we’re going to have to blindly get a Kentucky attorney and hope for the best.
This is in Carroll County, by the way.
I want to strangle that unethical state trooper. What a pack of lies.
That’s good. At least you have an ethical judge. That’s half the battle.
Consider calling the Kentucky ACLU affiliate. And NORML-KY. I think it’s unlikely that either will help you directly, but sometimes they’ll refer you to people they know who are good.
Welcome to America, 2009, where in the name of safety we have given police extraordinary powers over our lives. The problem is that some (not all) of these cops are absolute idiots and can ruin your life.
In order to regain our freedoms, we need to dismantle this notion that police need to regulate our marital lives, drug habits, normal driving habits, and other aspects of our lives to Protect Us. Which means it will never happen because we have become sheep.
Best of luck to you and your wife.
Yes to all this.
But your wife is in dangerous territory by self-medicating undefined mood disorders with a schedule I narcotic whose clinical effectiveness and safety for such disorders has not been documented.
Public Defenders are for people without any ability to hire private counsel. If you’re working, you are not indigent. You can get the money through legitimate means…either from savings, borrowing, or earnings. Just because it is inconvenient to spend that money for an attorney does not mean it does not exist.
Well, tbh I don’t think that we’d actually even bring up that she’s a habitual user at trial, unless the attorney wants to try some angle I’m unaware of.
The dishonesty in this is that the troopers, according to their own words, were willing to let her go had she admitted possession (supposedly, who knows what they would have really done, it may have been a ploy to get her to confess and have charged her with the DUI anyway), instead charged her with a DUI, and then the officer’s arrest report is a blatant pack of unsubstantiated lies.
Does anyone really believe that someone that smoked a little weed is going to be unable to stand up? Really?
Interesting. My friend is the same way. He actually had a psychiatrist tell him (very much off the record) that he could either continue to smoke weed, or pop a bunch of pills with a lot of side effects. Which choice do you think he made? This was, BTW after he had been commited to a psych ward and extensively evaluated and heavily medicated.
Were you present at the arrest, FoieGrasIsEvil? If not, you really don’t know what happened. Your story in the OP (presumably narrated to you by your wife, though some aspects may have been from your own observation prior to her leaving) is that she hadn’t smoked at all that day. Evidence would appear to indicate otherwise. You may be wise to be, hmm, open-minded about what your wife’s actual condition was until you see the toxicology report. I know that is difficult, since it is someone you love.
And “not able to stand up straight” is not the same as unable to stand at all. Someone who is at all wobbly will be able to have that phrase apply. At trial, her attorney can find out exactly what the officer meant by that phrase, and if it is as over-the-top as it sounds, then the attorney can attack the whole thing that way.
Now, I only have one further piece of advice. Do not solicit further opinion from this message board on the issue. At this point, in the absence of the real facts, or even the evidence claimed to exist to date, any opinion offered to you by anyone here, regardless of how knowledgeable an attorney, will be worthless. No attorney who is worth listening to will attempt to advise you on the case itself; at best, we/they can provide you with suggestions for how to obtain competent legal assistance. Further, you do realize that your posting here has the potential to rebouond against your wife at the trial, I hope? So it might be a good idea to simply end discussion of the “facts” of the case. :eek:
Get a good attorney. DUIs are nasty things to have on your record.