An officer patted me down and found marijuana. Was that legal?!
It depends, there, Shaggy and Scooby “Doobie” Doo. but it is very possible that this was not a legal pat down for drugs. In which case, you may be able to get the evidence thrown out and the charges dropped. This is assuming that this was not a search incident to arrest, or that the officer didn’t claim to smell marijuana in your mystery machine van like I’ve discussed before.
I recently won a marijuana case where my client was pulled over for driving over the fog line. When the police officer made contact with the gentleman, the gentleman appeared nervous and didn’t answer direct questions about his previous criminal convictions for drugs. When the officer ran his driver’s license and saw these convictions, he asked my client to step out of the vehicle for a weapons pat down which resulted in a baggie of marijuana being found in my client’s pocket.
In Arkansas, an unjustified and warrantless police action is both unreasonable and unconstitutional under both the Fourth Amendment to the United States Constitution and Article 2, Section 15 of the Arkansas State Constitution. Even if a suspect exhibits displays of nervousness while interacting with the police, that nervousness does not in any way create a reasonable suspicion of criminal activity, even with a history of criminal convictions. Our Federal Court jurisdiction —along with the First, Fifth, Sixth, Seventh, Ninth, and Tenth Circuits—has held that nervousness is “of limited value in assessing reasonable suspicion” and/or is so common that it alone cannot justify a Terry stop – commonly known as a pat-down for weapons.
What it comes down to is, in this instance, the police officer was unreasonable in his pat down of a suspect who had not had not been in trouble for drugs in over a decade, and was already anxious about his stop. The officer cited in his report that this was a search for weapons. However, nothing about the scenario suggests it was reasonable that the officer demand the suspect leave his vehicle for a pat-down of the suspect for weapons. Nowhere in the report did the officer cite that he was afraid for his safety, or that he thought my client was a danger.
In short, being nervous and having an old drug charge is not enough for a police officer to pat you down for weapons. And anything found as a result of that pat-down – drugs, paraphernalia, whatever – is not fair game to use against you in court. It becomes what is known as “fruit of the poisonous tree,” meaning the evidence is tainted because of the unreasonable police action.
Do what you Scooby Do, but keep in mind that this is a blog, not intended for legal advice. Each situation is different and may require analysis from a lawyer that leads to a different legal conclusion. If you need a criminal lawyer in Fort Smith, Van Buren, or Fayetteville, Arkansas, or if you feel like you have been treated unfairly by a police officer in a similar incident, give us a call at 479-782-1125 and I bet we can help.