If you are pulled over, and you end up with the police searching your car because they think they smell marijuana, you might be in trouble if they find some. In South Carolina, marijuana is a Schedule I drug that is still illegal to possess and distribute. If you are convicted on a drug charge, penalties can include jail time and fines. However, if that marijuana is found during an unlawful stop and search, then you may be able to avoid any penalties – that is, if you get a good lawyer.
A good criminal defense lawyer can work to get any evidence found by authorities suppressed if that police officer did not have probable cause to stop and search your vehicle. A lawyer can also help to reduce charges and penalties should your case go to trial.
What is “probable cause”?
The Fourth Amendment of the U.S. Constitution gives people the right to secure any of their own property on their person or otherwise against search and seizure. However, if a warrant is issued or if there is probable cause of a crime occuring, then search and seizure is allowed. Per Cornell Law School, “Probable cause is a requirement found in the Fourth Amendment that must usually be met before police make an arrest, conduct a search, or receive a warrant.”
The court may find probable cause if there is a reasonable basis for believing that a crime is being committed; and when there is evidence of a crime in the location, then that gives the officer probable cause to issue a search. There are certain extreme circumstances where probable cause can justify search and seizure without a warrant. If you are arrested without a warrant, you should be taken to a capable authority relatively quickly after your arrest to determine probable cause promptly. You should always contact a local criminal defense attorney as soon as possible after an arrest before you speak to authorities.
Police in South Carolina and neighboring states often use the smell of cannabis as probable cause for a search and seizure in South Carolina. The law on cannabis changes from state to state, and so does the law on whether authorities can search your vehicle should they smell marijuana. Unfortunately, some authorities may judge you by your looks (whether that’s haircut, type of dress, or the color of your skin), and possibly claim to smell the odor when there is none. South Carolina Representative Deon Tedder states “illegal search and racial profiling is more or less a fishing expedition. It merely allows officers to find something incriminating, cannabis or not, during a search.”
Representative Deon Tedder is proposing a bill that would prevent the stop and search of anyone solely because of the scent of cannabis. According to Cannabis.net, “South Carolina lawmakers believed that the smell of marijuana alone on a person or within a vehicle does not give law enforcement officers the go-ahead to search a person. Especially in a state like South Carolina with approved legislation for hemp production.”
Tedder states that he is filing this bill for the safety of South Carolina residents, as there are many hemp farmers and minorities that are being pulled over, searched, and arrested unduly. Cannabis.net continues, “Tedder said that smelling like cannabis is not an illegal act. He added that a person who has been around someone legally using hemp or illegally using marijuana would still smell like hemp.”
The bill is currently in committee in the South Carolina House of Representatives.
Without probable cause, any warrantless arrest must beis deemed invalid, and all evidence that may have been gathered from the arrest will be repressed, meaning that it can no longer be used against you in a court of law for that particular arrest. A drug charges lawyer can help you if you think you have been unlawfully arrested without probable cause.
What penalties can I face for possession of marijuana?
While it may be marijuana possession is legal in some states, in South Carolina it is still considered a misdemeanor offense, according to South Carolina code of law. The penalties of possession in South Carolina can be fines and/or jail time:
- First offense: up to $1,000 and/or 30 days in jail, in addition to court costs.
- Second offense: fines between $200 and $1,000 and/or up to 1 year in prison.
Manufacturing, distributing, or possessing with intent to sell marijuana, is considered a felony offense. How severe your sentence is depends upon how much of the drug you possess. The differences between a felony and misdemeanor charge vary. The penalties for possession with intent to sell, manufacturer, or distribute marijuana include:
- First offense: up to $5,000 and/or up to 5 years in prison.
- Second offense: up to $10,000 and/or up to 10 years in prison, with a 5-year disqualification for federal benefits.
- Third offense: up to $20,000 and/or 5 to 20 years in prison, with permanent disqualification for all federal benefits.
Having a good defense lawyer can greatly help the likelihood of receiving a lighter sentence. At Holland Law, our Rock Hill and Fort Mill attorneys have years of experience having our clients’ charges reduced or even dropped when authorities fail to follow proper procedure.
When you get pulled over, you have rights. Unless there is probable cause, the police do not have the authority to search your vehicle or to arrest you. The Fourth Amendment guarantees this. If you think you were pulled over, arrested, or your property searched without probable cause, call Holland Law LLC today at 803-219-2630, or use our contact page. Our firm has offices in Fort Mill and Rock Hill, and we also serve people in York, Chester, and Lancaster.
Tom Holland previously served as the General Counsel for the Lancaster County Sheriff’s Office, the City Solicitor for the City of Lancaster, and as a Special Assistant United States Attorney for the Sixth Circuit Solicitor’s Office. He is a single father, and through his own divorce gained valuable insight he now uses to provide Fort Mill and Rock Hill, SC families with the best representation. Learn more about Tom Holland.