Unlike many of my colleagues in the criminal defense blogosphere, I'm not uncorking bottles of bubbly over the recent U.S. Supreme Court decision in Arizona v. Gant, because I don't think it will have much practical effect on the way possession of marijuana and other drug cases are prosecuted. In Gant, the Supreme Court narrowed an exception to the requirement of a search warrant and probable cause to search known as "search incident to arrest."
When the police arrest someone, they are allowed to search the area in the immediate vicinity of the defendant, without probable cause, to insure that the defendant cannot have access to a weapon. Typically, the way that this normally plays out is that a cop arrests someone for, say, an unpaid traffic ticket warrant, and then searches the person's car as a search incident to arrest.
Sometimes, during such a search, the cop finds. other interesting items, such as marijuana or other illegal drugs. In Gant, the defendant was arrested after his car was already parked in his driveway. The cops then conducted a search incident to arrest afterwards, while the defendant was already in handcuffs and in a patrol car. The search turned up some illegal drugs, for which the defendant was charged.
The Supremes said that the search violated the rationale for a search incident to arrest, since, when the defendant was already in cuffs and away from his car, it was impossible for him to retrieve a weapon from the vehicle. The court concluded that the drugs seized should have been suppressed. Although I applaud any defense victory in the Supreme Court, I doubt that this decision will have any far-reaching effect on how cops handle automobile searches, because there is yet another exception to probable cause available to cops -- the dreaded inventory search.
When a cop arrests someone in a car, the car is normally impounded, and the cops then routinely conduct an "inventory" search of the vehicle. The official purpose of an inventory search is to catalogue the items found in the car when it is impounded in order to safeguard the property rights of the owner of the vehicle. In reality, it's a fishing expedition for the cops. Nothing in Gant prevents cops from continuing to conduct inventory searches of cars prior to impound.
Remember, in Gant, the car searched was sitting in the defendant's driveway, so the cops had no need to impound it. Ninety-nine percent of the time, however, a car is stopped on the roadside, and the cops will impound it after an arrest. So, in most cases, rather than calling the vehicle search a "search incident to arrest," the cops will just wait a minute or two and call the search an "inventory" instead. So while Gant is a victory, it's a small one. Don't expect to make much of dent in marijuana and drug prosecutions.
You've just been accused of possession of controlled substance, and, not only did you not possess the drugs in question, but you also don't even do drugs. What should you do? The first thing I would suggest (after speaking with a lawyer) is going to to a walk-up medical clinic and getting a hair follicle test. We have had several clients that have used the results of hair follicle tests to get drug cases dismissed. These are the same clinics that many employers send their employees to in order to get drug- tested. Many of these clinics will do a drug test for anyone who requests one at a pretty reasonable price.
Why a hair follicle test? Because a hair follicle test, as opposed to a urinalysis, can often go back for several months, which insures that it covers the day on which you were arrested. Even though you, technically, do not have to have actually consumed the illegal drug in question to be guilty of possession, most people who possess a drug also use it. So evidence that you have not used a particular drug for several months prior to the date of arrest is pretty persuasive evidence for many prosecutors that a case should be dismissed. Now, if God forbid, the test comes up positive, you are not obligated to reveal the results to the prosecution. Only you and your lawyer need know. So there really is not a down side to having the test done.
If you have the great misfortune of having a Possession of Marijuana case in Comal County, you need to be aware that the outcome of your case may hinge on your ability to pass a drug test. Currently, there are two county court-at-law judges hearing possession of marijuana cases in Comal County. Before accepting a plea bargain deal, both judges will grill a defendant about whether or not he would pass or fail a drug test to be given immediately after the acceptance of the deal. One judge flat out refuses to allow a plea to move forward if the defendant admits that he would fail a drug test.
Both judges have a policy that, if a defendant states that he will pass a drug test, a deal for probation is accepted, and then the defendant later fails a drug test that day, then the defendant will receive ten (10) days in the county jail as a special condition of probation. I have lost track of how many defendants have been offered deals that would allow them, at some point, to either expunge or partially seal their criminal records, only to have the deal busted (or worse, to have been locked up in jail ) because of a dirty urinalysis. I have also lost track of how many defendants in Comal County marijuana cases have lied to their attorneys about whether they would test dirty, only to confess to drug use once they have gotten in front of the bench and started staring ten days in the face.
If you have a Comal County Possession of Marijuana case, remember these things: 1. For the purposes of a urinalysis, the markers for marijuana use will stay in your system for approximately 42 days. Forget all the junk you've read on the internet or heard from your buddies about eating certain foods, drinking gallons of water, "sweating it out", or any of the other nonsense floating around about how to get past a UA.
Over the years, I have seen many people try to fool drug tests, only to fail. If you have consumed marijuana within 42 days of your court date in Comal County, do not lie to the court and take your chances. You are only buying yourself jail time; 2. Don't lie to your lawyer about whether or not you've smoked. If you have recently smoked, your lawyer can't help deal with that fact if he doesn't know; 3. This may sound radical, but you might want to abstain from using illegal drugs while you have a drug case pending. It's not worth an extra trip to jail or a drug conviction of your record the next time you apply for a job. Just saying...