Originally Posted on: Nov. 3 2009,16:47 by William Maze
Although I do not normally accept non-DUI cases, a former client referred a friend to my office with a gun charge. I explained that I only practice DUI defense, but I could immediately see similar issues arising in this case where I could apply my knowledge and help.
A report of a loud radio was received by police who responded to the area. Upon arriving in the general vicinity, police found a vehicle that did not match the 911 caller’s description. The pickup truck did not have its radio on at all. Two police car approached the parked vehicle, which was parked behind a local union hall. The lead officer claimed he could smell marijuana through the open truck window and could see the passenger smoking from a marijuana pipe.
Videos from the officer’s patrol car revealed that the truck window was not open, and the passenger denied smoking any marijuana in the car. The officer immediately approached the vehicle, pounded on the window, and demanded that the occupants exit the vehicle and explain what they were doing. After being arrested, handcuffed and placed in the patrol cars, police searched the car finding a gun in a gun case behind the seats. The officers also found a marijuana pipe and suspected marijuana in a pouch, but there was no evidence that the occupants had been smoking the marijuana when the officers arrived on the scene.
The trial court judge held that the initial command to exit the vehicle constituted a search under the 4th Amendment, and it was not supported by probable cause, since the occupants were not actually smoking anything when the officer approached the vehicle. The judge further ordered that the search of the vehicle was unlawful since the occupants were secured in the patrol cars. No exception to the search warrant requirement permitted the officers to search the vehicle. As a result, all evidence was suppressed.