Individuals accused of a crime have Constitutional rights to privacy and freedom from unwarranted search and seizure. There is nothing that makes a drug case unique. Police officers have to establish probable cause before they can search your person or property for drugs.
Unfortunately, police officers often claim that they smelled marijuana or saw drug paraphernalia, which is hard to disprove after the fact.
Drugs are visible in your vehicle or on your person
The Code of Virginia states that “it is unlawful for any person knowingly or intentionally to possess a controlled substance” without a valid prescription. But how do the police find you in possession of a controlled substance? If they see drugs in your car or in your hand, this is probable cause.
You talk about drugs as if you have some
Officers may also claim probable cause if they believe you are aware of the presence of an illegal drug. This is why your right to remain silent is so important. The prosecutors can use against you anything you say during the course of the investigation.
The officer can articulate his belief that you had drugs
Officers need more than a hunch or a feeling in order to conduct a search. In Virginia, they have to be able to explain to a judge why they believed that you possess drugs. Their reasoning can be circumstantial, but it must include observable details from the five senses. Whatever they hear, smell, taste, touch or see can create probable cause enough for search, seizure and arrest. If they cannot articulate details and facts about how they established probable cause, the case could be thrown out.
