When one is confronted with drug related charges, be they unlawful possession of the drug itself or possession of materials to manufacture a controlled substance, the most common question is the legality of the search that resulted in the discovery of criminal contraband. As earlier stated, the Fourth Amendment to the United States Constitution protects all citizens from unreasonable searches and seizures and requires no search warrant may issue without a sufficient showing probable cause exists to believe the area to be searched houses illegal contraband. All warrantless searches are presumed to be unlawful and the person charged must have a legitimate expectation of privacy in the area subject to search. However, over the years the Court have carved out exceptions to the warrant requirement that include:
Automobile exception: a search warrant is not required to search an automobile if the officer has probable cause to believe it contains criminal contraband subject to seizure. A car is mobile in nature and operates differently in the minds of the courts as to homes. The Government must show the officer conducting the search made, given the circumstances known to him, a practical, common sense decision that there is a fair probability that incriminating evidence will be found. The officer can search the entire automobile, including the trunk or containers within, if it could potentially contain the contraband. Missouri courts have held the odor of burnt marijuana within a vehicle gives the officer probable cause to search the vehicle.
Plain view exception: If an officer is lawfully on premises where an item of criminal contraband is in plain view, he may seize the item without a warrant.
Consent exception: If an individual freely and voluntarily consents to a warrantless search, items found in the course of that search will be admissible as evidence. The search may not exceed the scope of the consent granted. Items found in areas that exceed the scope of the consent given may be deemed inadmissible at trial. A person granting consent to search a residence, place of business or automobile must have authority to grant consent to search. A guest typically does not have lawful authority to consent to the search of a residence or business. The consent cannot be a product of coercion or force by a law enforcement officer and the person being searched must understand he has a right to refuse consent.
Search incident to lawful arrest exception: a person being lawfully arrested may be subjected to a search of his person and area within his immediate reach or control. This exception does not permit a limitless search of a person‚ automobile or residence if that person has been cuffed and placed in a patrol car or his ability to destroy evidence or retrieve a weapon has been otherwise alleviated.
Exigent circumstances: This exception allows a warrantless entry into a home if the officer is in pursuit of a fleeing felon or reasonably believes incriminating evidence is subject to immediate destruction or persons within the home are in risk of immediate danger. This exception does not authorize a limitless search but does permit an officer to seize incriminating items found in plain view and search areas where suspects may be hiding.
Defense attorneys must always investigate the legality of the search to properly defend the client. If a search warrant issued, was it supported by sufficient probable cause? Was the information supplied in the application for the warrant sufficiently reliable? If authorities are relying on an exception to the warrant requirement, are they operating within the lawful guidelines of the exception? Again, if contraband found incriminating the client is a product of an unlawful search the defense attorney must present the issue before the Court by means of a motion to suppress and argue the item is inadmissible pursuant to the exclusionary rule.
The Government clearly has the burden of proving the element of possession in many drug related cases. Possession in Missouri is defined as having knowledge of the item and being in a position to exercise control or dominion over the item. If contraband is found on the person of the accused or within an area where he is deemed to have exclusive access and control, he will be deemed to have actual possession of the item. However, if more than one individual occupies the area, and they have joint control and equal access to the area, the State must show specific evidence linking the contraband to the defendant. This is the theory of constructive possession. In this situation, mere presence on the premises or the area where the drugs or illicit materials are found will not be sufficient to convict. The Government also bears the burden of proving the defendant was aware of the presence of the contraband and clearly had knowledge of