Suffolk, VA asked in Traffic Tickets, Criminal Law and Civil Rights for Maryland

Q: How should we proceed with the search that looks like was unlawful and a violation of rights.

My son which is a black 21 year old male was recently arrested in Ocean City MD over the weekend 12/31/22 for what we can only see as him being profiled but we live in Virginia. He was told by the police officer that pulled him over that his license plates didn't match his car and that he randomly ran his plates and the plates didn't come up in the system. The officer made him exit the vehicle and proceeded to search it without my son's consent even though I understand how probable cause works. The officer proceeded to find my son's legal firearm under the seat and some old marijuana "roaches" in a ziplock bag in his zipped up bookbag which didn't have anything in them because they were old. The officer then wrote in his report that he could smell burning marijuana that he believed was coming from my son's car when he was sitting behind him at a stop light even though he wasn't smoking and his window was only cracked so there's no way he could smell burning marijuana.

1 Lawyer Answer
Mark Oakley
Mark Oakley
  • Criminal Law Lawyer
  • Rockville, MD
  • Licensed in Maryland

A: Your son needs a criminal defense lawyer. Either he/you can afford private counsel, or he needs to apply for the Public Defender in the county where the charges are pending. The lawyer will obtain all of the discovery and evidence from the State (including officer dash video and body camera video footage), and can prepare a motion to suppress the evidence found as a result of a lack of probable cause. A judge will rule. If unsuccessful, then there may be an appeal. Alternatively, there may be a plea deal offered that may be worth taking if it avoids jail and a criminal record. A legally owned and registered gun is not a defense to the charge of carrying a loaded concealed weapon in a car. If the motion to suppress the discovery of the gun fails, then your son will be found guilty. Odor of marijuana has been upheld in Maryland as a basis to conduct a further search, since possession of more than 10 grams of marijuana remains a crime; therefore, it does not matter that less than 10 grams is later found, and the police may discover evidence of other crimes (concealed weapon) on account of the search. Proving the officer to be a liar is not always easy, and if it comes down to a simple choice of whether to believe the officer or not, most judges will side with the officer unless there is some strong evidence otherwise. Your arguments not withstanding, the facts do not eliminate the possibility the officer is telling the truth. Therefore, your son's lawyer will have to thoroughly review the facts and video evidence and prepare a strong evidentiary argument, as well as develop a convincing cross-examination of the officer, whose testimony may or may not be undermined--even if you are convinced he's lying and your son knows he's lying. It's the judge that needs convincing.

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