Marijuana cases are some of the more common types of cases misdiagnosed by individuals without representation. Especially for people who have never been in trouble, the outlook can look bleak because of an oversimplified analysis. The question is not just whether marijuana was found but where it was found and how it was found. Almost every marijuana case involves three important areas of legal analysis: (1) the stop, (2) the search, and (3) the possession. Uncovering issues in any one of these three areas can not only impact the outcome of a trial but also the outcome of plea negotiations. Below is a brief overview of each.

The Stop

As citizens we are free to go about our business without being unreasonably detained by the police. The law permits and officer to briefly detain a person when there is reasonable suspicion that “criminal activity is afoot.” Suspicious behavior could be enough to conduct a stop but normally a stop is based on something more substantial. If the reason for the stop is pure curiosity, the stop is illegal. There is nothing scientific or mathematical about reasonable suspicion. Sometimes circumstances fall squarely within decided law and other times they are subject to varying opinions of judges, prosecutors and defense attorneys.

The Search

Like the right to be free from unreasonable detention, individuals also have the right to be free from unreasonable searches. A search without a warrant is presumptively unreasonable unless the State can show that the search falls within one of a few limited exceptions to the warrant requirement. The most common way for an officer to search without a warrant is with consent. Officers are trained to obtain consent and a surprising number of people will freely give consent to search even when they know marijuana will be discovered. The key to a consent-based search is obtaining “free and voluntary” consent. Consent obtained through undue influence or coercion will invalidate the consent-based search.

The Possession

Possession in Texas is defined as “actual care, custody, control or management.” This definition is broad enough to say that a person can possess something not physically found on their person. However, the State’s case becomes more difficult when more than one person had the ability to control or manage the marijuana or when the marijuana was found in a place where its presence would not have been obvious to the person charged. Keep in mind that the law doesn’t require a person to disprove possession. Possession is an issue that must be proven to a jury in order for the State to obtain a conviction.

These issues are infinitely more complex than a short paragraph synopsis. Odds are, so is your marijuana case. These issues along with the potential consequences of a marijuana conviction should be explored with an attorney before deciding how to resolve your case.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.