What should I do for paraphernalia charges? 1 Answers as of April 01, 2011

I was asleep last night and my roommates were smoking on our back porch. I was woken up by the officer and asked to sit on our couch while we waited for three hours for a warrant. When they searched the apartment they found a pipe in my room, and one in my roommate’s room, we both got a ticket for paraphernalia. I have nothing one my record, and have never gotten a ticket for anything before. Is there any way that I might be able to get this taken off? Like first time offender? Doing community service?

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Reeves Law Firm, P.C. | Roy L. Reeves
Hire a lawyer and fight it. Based on what you have said here, I see a couple issues: the first is card, custody, and control. The law states that in order to possess something, you must have care, custody, or control over the object. Being in the same room with it, asleep, while your roommate is outside smoking pot . . . these should be huge flags.

"Hey, it is not mine, he's the one smoking pot!" Of course this defense may strain your relationship, but you have to choose, protect your future or flush it. If you are smoking pot. stop. We can have a drug talk later but from a purely legal standpoint, there is little that gives me more satisfaction than challenging a prosecutor with a bet - my client will take a urinalysis and pay for it. If it is clean, they drop the charge, if it is dirty, they have a drug lab report to bolster their case. (keep in mind, I am not stupid, they do have to bring in the lab tech and prove it was done right, so we may give some evidence, but it is not free and I only do this if my client tells me he is clean.)

So, if you are not clean, get clean and do not rely upon flushes, or any crap like that, this is your future, don't bet it on something sold at the local GNC store for $10-15. Stop smoking weed and save the money you are spending on it to hire a lawyer to protect your future. The second issue is that scope of the warrant. What was the warrant for, what was the scope of the warrant, did the cop exceed that scope, how did he come to be in your bedroom to begin with if your roommate was outside smoking pot? Warrants must first be limited in scope (what the cop can look for and where he can look) and second the scope must be based on articulable facts as to why it is needed. Those articulable facts must be real, not mere suspicions based on legally obtained evidence or testimony.

If the cop broke into your house without a warrant and sees your roommate smoking pot, has he seen a crime? Yes. Is seeing someone smoke pot articulable reasoning to search for drugs? Maybe. Is the evidence relied upon in making the articulable reason obtained legally? No. So, the warrant is bad, the search is bad, and the evidence must be thrown out (at least using my scenario). So, you need a local lawyer to look at the facts, get a copy of the police report and a copy of the warrant and underlying (supporting) affidavit. All of this needs to be looked at first, before you even consider a plea or making some kind of "first time offender" deal. If the warrant is good, the search may still be bad. Mapp v. Ohio is the central case on this issue, which has a very colorful back story. Don King, the boxing promoter, called in a police report that someone had blown up the porch of his house (trust me the back story is really great) and this led to a manhunt for the suspect. Police arrive at the home of one Delores Mapp with a warrant to search her house for the suspect (a grown man) and in the process of executing the warrant the look in places a man could not possibly fit, such as inside a suitcase, where they found contraband. She was charged with possession of contraband located during a lawful search with a search warrant. The US Supreme Court eventually heard the case and said that the scope of the search was excessive. The police had a warrant for a person and that warrant was only valid for contraband (or the person) found where a person (the subject of the warrant) could reasonably be found. It did not give the cops carte blanche to do as they pleased. Granted, a pipe is small, dope is equally small, they could both reasonably be found in the same location but the synopsis holds true, the warrant has limitations and if the pipe was outside that scope, you can and must suppress the evidence.

Good lawyering is intended to protect the innocent. Even if you are not innocent, good lawyering will keep the cops and the system honest which will protect law abiding citizens who are innocent next time. Citizens accused fought to protect your rights years before this incident, it looks to me as though it is your turn to fight for yourself and those that will come after you.
Answer Applies to: Texas
Replied: 4/1/2011
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