Q: If the arresting charge is dropped. Then is any evidence found in search incident to arrest "fruit of a poisonous tree"?
Hi, I was currently arrested and charged with poss. Of marijuana less than 1oz. And my brother of driving without a licence and a few more charges along with the poss. Of less than an oz.
I feel as thou this is easily resolved. I have done some homework on this.
The arresting charge was that my brother didn't have a licence. However he did have a licence. We have proof of that. The vehicle is not insured. However the arresting charge was the licence. When the officer came back he told my brother to exit the vehicle he was arrested for driving without a licence. My brother was brought to the cops vehicle. He asked my brother to search the car. My brother said no. He continued to search the car. I presume under the search incident to arrest. And found the weed. Neither of us would take credit for it. And he charged both of us.
So if we prove that the arresting charge is fraudulent or shouldn't have happened will the poss. be admissible due to the 4th amendment.
A: Could be. Need to know a little more information. Why were you stopped? Did officer claim to smell marijuana? There are other reasons to search besides search incident to arrest, and even search incident to arrest doesn't automatically allow a police officer into the car. Feel free to give me a call - 770.461.2025.
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