In early April, a North Carolina man was driving through Florida and was pulled over for speeding. When officers approached the car, they allegedly got a strong whiff of marijuana. Upon searching the car, they found 20 grams of the drug.
What might have only been a speeding ticket turned into felony drug charges.
If you’re wondering whether or not the man from North Carolina consented to the search of his property, here’s your answer: it doesn’t matter. Why? Because the strong scent of marijuana was enough to give police the right to search the car with or without the man’s consent.
Yes, the Fourth Amendment protects citizens from illegal search and seizure. However, this protection is removed when officers have probable cause.
Understanding How Probable Cause in North Carolina
Probable cause gives officers the ability to make a lawful arrest, conduct a search, or obtain an arrest warrant. In other words, an officer can’t just arrest someone or make them empty their pockets because they have a hunch or a feeling that the person committed a crime – they need a more concrete reason. However, the officer doesn’t need to have hard proof of the crime, either. That’s where probable cause comes in.
Probable cause can include things like the proximity of a possible suspect to a crime, tangible probable cause, and witness testimony. Probable cause is something that has to be examined on a case-by-case basis. For example, smelling drugs may give an officer probable cause to search a car, but might not fly as a reason to make an arrest for possession or other types of drug crimes if no drugs are found.
Examples of Probable Cause
The story above is an example of probable cause, but officers don’t have to rely on smell alone to do a search for drugs. Other examples of probable cause include:
- Admission of guilt
- Contraband in plain view
- Apprehension of contraband: Say officers search a car or home (with the owner’s consent) and find illegal contraband. Even if the occupants in the home or car say that the contraband does not belong to them, the police still have probable cause to make an arrest.
- Matching Description: If a victim gives police a description of a criminal, police may arrest a person in the area who matches the description. Even this example isn’t black and white, however. A vague description isn’t enough to give officers probable cause, and in certain situations can lead to things like profiling.
What Are Your Rights?
If you are pulled over, you have the right to remain silent. You also have the right to refuse a search. If you say no and there is no probable cause, the police have to let you go without searching you. However, if the police can argue that probable cause is present, you cannot prevent them from searching your car.
If you are unlawfully arrested, you have the right to resist. However, since probable cause lies in such a grey area, it is in your best interest to comply with officers – even if you suspect that they do not have probable cause. You can always use this argument in the courtroom.
Lack of Probable Cause as a Defense Strategy
Say you were searched without consent or probable cause, but controlled substances were still found in your car. Your lawyer may be able to file a motion to suppress. This motion calls for the evidence to be removed from the case because it was unlawfully obtained. A lack of drugs makes for a pretty hard case for prosecutors in a drug crimes case.
If you were arrested without probable cause, any evidence collected at your arrest may be thrown out, and your charges may be dropped. Since probable cause is looked at on a case-by-case basis, it is best to consult a North Carolina defense lawyer after an arrest.
About the Author:
Jan Elliott Pritchett is Managing Partner at the Law Firm of Schlosser & Pritchett and one of North Carolina’s top rated criminal defense attorneys. With a practice dedicated 100% to litigation, Mr. Pritchett protects the legal rights of clients who have been charged in federal and state criminal matters, as well as DUI/DWi, motor vehicle accidents, personal injury, and traffic violations. In practice since 1995, Mr. Pritchett has earned a reputation as a highly talented and fearless lawyer, being listed among the state’s “Legal Elite” and recognized as one of the Top 100 DWI Lawyers in North Carolina by the National Advocacy of DUI Defense. He currently serves as the Co-Chairman of the North Carolina State Board of Legal Specialization, Criminal Law Specialty, and Vice-Chairman of the North Carolina Bar Association, Criminal Justice Section.