Can I be charged with drug possession after an unlawful search?

Question

I was leaving a Kohl's store when I was suddenly confronted by 5-6 police officers who accused me of shoplifting. Although I was not shoplifting, they searched my pockets without my consent and found a small bag of drugs, leading to a 5th degree drug possession charge. I did not hear them read my rights, and I received notice of the charges two months later. I have previously faced drug charges in a different county. Can they charge me with drug possession in this situation, given the circumstances of the search and the lack of shoplifting evidence?

Sarah Gad · Answer

Unfortunately yes, it is perfectly lawful and happens during any arrest. When you are arrested for any offense, police officers are permitted to do what's called a search incident to arrest. Whatever they find on you during the search incident to arrest is fair game for charging purposes. In fact police officers, and by extension prosecutors, often can and do seek as many possible charges against one person from a given set of facts. However, if you are a first-time offender, you may be able to avoid a conviction through what's called a "stay of adjudication." Consult with a defense attorney to explore your options and the best course forward for you.  
 
I hope this helps. Best of luck to you.

Jonathan Matthew Holson · Answer

They do not need to read your rights unless they are going to perform custodial interrogation.  The fact that they did not locate stolen good does not mean that you get a free pass on any other illegal items that you might have been in possession of.  You should get an attorney on board who can review all of the evidence and determine if their might be other legal issues that you might have in your case.  If not, they can negotiate the best deal possible.

Thomas C Gallagher · Answer

A defense lawyer will look at two separate stages of a police encounter: 1. Was evidence collected unlawfully, so that the defense can ask a judge to suppress the evidence?  2. Given the evidence that has survived any defense motions to suppress, does the evidence support probable cause for the criminal charge, would the evidence create at least reasonable doubt about guilt after a trial?   One way a search can be lawful is soon after a lawful arrest.  For an arrest to be lawful, some conditions must be met.  Among those are an arrest warrant and in some situations, probable cause to believe that the defendant recently committed a crime or was about to.  The question asked is suggesting the possibility that the arrest might have been unlawful (without probable cause).  If so, then the search may have been unlawful too.  If a judge agreed that the search was unlawful, that judge could suppress the evidence and then dismiss the charge.  Of course, all the facts and circumstances will be key in determining whether the police did have probable cause to arrest, or in determining if the search was otherwise lawful.  Discuss with your lawyer.

Q: Can I be charged with drug possession after an unlawful search?