Expert: Robin Sexton - 5/21/2008

Question
me and My girlfriend were sitting in a park Smoking a joint
it was late and no one else was in the park   all of a sudden the police pull up like there was a major crime going on  we tore up the joint and threw it on the ground as they were Pulling up.. the officer asked if we were smoking pot   we said no of course   and he started looking on the ground around where we were sitting  and he found part of the rolling paper but no Pot.. he then told me he was arresting me for paraphenalia    and handcuffed me  My car was about 40 feet from us and he said he had probable cause  and started searching my car  also i was never read my rights
thru the whole time I was in jail at the scene or before I was released   My question is can they search my vehicle if I was not in it and how do I prove my rights were never read to me   is it our word against his that they were never read?

Philip M

Answer
Phillip,

We will discuss the "Miranda" rights first.  These rights are not a requirement on arrest.  They are required only if the officer intends to use statements from you after you are in custody.  In a lot of situations it is the officers word against the subjects.  It comes down to a question of credibility and that is determined by either a judge or jury.
The search is a more difficult question.  The reason is this, I nor you know exactly what the officer saw.  Did he see you get out of the car ?  The Supreme court has given quite wide latitude regarding searching of vehicles as compared to a home as they are mobile and by that very nature make searching the vehicle exigent to the investigation.  The smell of marijuana, passing the joint from person to person are all strong indicators of marijuana use.  The officer may very likely had probable cause.  You won't know exactly what his case facts are until the report is prepared and presented. If you were arrested a copy of the report will be supplied to either your counsel or you. You don't say if there was a quantity of marijuana found in your car.  If not then you  are more then likely looking at a minor possession charge.  If a quantity was found it could be more serious depending on your states laws and your history.  You may want to consult with a local attorney competent in criminal law to review your case and provide advise.

Good luck

Robin