Skip to content

Virginia Drug Crimes

    Virginia drug crimes are the most common felony charge in Virginia. Each day hundreds of people are arrested for drug crimes in Virginia.

    From kingpin drug dealers to high school students, the Commonwealth of Virginia comes down hard on anyone charged with a drug crime.

    Most drug charges come with mandatory license suspensions and many result in jail time and probation. The immigration consequences of any drug charge can be devastating. And a drug conviction in Virginia will remain on a defendant’s criminal record forever.

    Despite the severe consequences of Virginia drug crimes, a large number of defendants come to court uninformed and unprepared. They do not know their rights, they do not understand the legal process, they do not have confidence in their lawyer, and they do not know how to use their attorney effectively.

    The purpose of this website is to inform and empower anyone charged with violating Virginia’s drug laws. This book will discuss each of the drug crimes, their consequences, the judicial process, common defenses, the various court programs, the pros and cons of cooperating with detectives, and how to choose and work with a qualified criminal defense attorney.

    Distribution of Marijuana Crimes

    VA Code § 18.2-248.1 outlaws possession with intent to distribute marijuana, or “PWID-marijuana” for short (pronounced “pee-wid”).

    There are several ways the police attempt to prove possession with intent to distribute marijuana: undercover drug buys, confessions, text messages from the defendant’s phone, the quantity of drugs (more than the amount typical for personal use), possession of scales, individually packaged drugs and possession of lots of cash.

    The punishments for the distribution of marijuana in Virginia increase as the quantity of marijuana in the defendant’s possession increases. However, there is no minimum quantity for distributing marijuana. One officer I know made a distribution of (PWID) arrest after he witnessed one man pass a joint to another man while they were smoking weed on a stoop.

    PWID up to .5 ounces of marijuana is a misdemeanor with a maximum of 12 months in jail and a mandatory six-month license suspension.

    PWID of more than .5 ounces and less than five pounds of marijuana is a felony with a maximum of 10 years in jail and a mandatory six-month license suspension.

    PWID more than five pounds of marijuana (but less than 100 kg) is a felony with a maximum of 30 years in jail and a minimum of five years in prison.

    PWID of 100 kilograms or more of marijuana is a felony punishable by 20 years to life in prison. If you have been arrested for possession with intent to distribute over 100 kilograms of marijuana, you probably do not need this book to know you are in trouble.

    Distribution of Marijuana or PWID Near a School

    VA Code § 18.2-255.2 bans possessing drugs with the intent to distribute (PWID)  marijuana near schools, daycare centers, school bus stops, and many other public locations. This law applies even if the defendant was not intending to distribute the drugs on school property.

    For example, if a suspect is arrested for distribution while driving through a school zone, they may be guilty of distribution near a school under 18.2-255.2.

    There is a long list of locations where this statute applies: any public property within 1,000 feet of a school, including colleges and junior colleges, daycare centers, recreation centers, public libraries, and community centers; within 1,000 feet of a school bus stop if children are there; any public property within 1,000 feet of a state hospital or health facility.

    Growing or Manufacturing Marijuana in Virginia

    Growing, producing, manufacturing, preparing, propagating, compounding, converting, or processing marijuana that is not just for personal use is a felony with a maximum fine of $1,000,000 and a maximum of 30 years in prison with a five-year minimum. There are no minimum quantity requirements for growing marijuana. In Virginia, a person can be guilty of manufacturing marijuana after growing a single plant and giving a home-grown joint to a friend.

    Call Nichols & Green PLLC (703) 383-9222 for a free consultation if you are charged with distribution of Marijuana, distribution near a school, or manufacturing marijuana in Virginia.

    At Nichols & Green PLLC we defend hundreds of people every year and Marijuana crimes are extremely common in the Commonwealth of Virginia. Mr. Nichols and Mr. Green have spent years studying and defending drug crimes such as the distribution of marijuana, possession of marijuana, distribution of marijuana at a school, manufacturing marijuana, and growing marijuana. Luke Nichols and Garrett Green are the authors of the Virginia Drug Crimes Defense Manual.

    If you are charged with marijuana distribution or any of these other marijuana crimes, call Nichols & Green PLLC to speak to these lawyers about your charges and to receive a free consultation and a free copy of our book. Consultations can be done over the phone or in person at (703) 383-9222.

    Possession and Distribution of Synthetic Marijuana

    Synthetic marijuana (also called K2 or Spice), is an industrial insulator that causes a high when smoked. For several years it was not illegal and was openly packaged and sold in stores as synthetic “legal” marijuana.

    In 2011, the Virginia legislature passed a new law (VA. Code 18.2-248.1:1). This law banned a long list of synthetic compounds used in synthetic marijuana. Prior to the passage of this law, synthetic marijuana was sold openly and legally online and in gas stations in Virginia.

    Many people are still ignorant of this law and some still sell synthetic marijuana openly without knowing (or caring) that it has been outlawed.

    At this writing, there are currently no field test kits for synthetic marijuana. It is difficult for the police and synthetic marijuana users to know whether a particular form of synthetic marijuana contains one of the now illegal substances. Currently, laboratory testing is the only way to know whether a particular form of synthetic marijuana is illegal. These ambiguities have opened the door to several possible defenses.

    The penalties for synthetic marijuana are much more severe than the penalties for possession of real marijuana. First-time possession of synthetic marijuana is a Class 1 misdemeanor with penalties of up to 12 months in jail. PWID synthetic marijuana is a felony that comes with up to five years in prison. There is also a mandatory 6-month driver’s license suspension upon conviction.

    Call Nichols & Green PLLC (703) 383-9222 if you have been charged with possession or distribution of synthetic marijuana in Northern Virginia.

    At Nichols & Green PLLC, our lawyers have years of experience defending drug crimes in Northern Virginia. The forensic and technical issues surrounding synthetic marijuana are many, so having a lawyer who has made Virginia drug crimes defense their area of focus is important. Luke Nichols and Garrett Green have done just that.

    Not only do they have years of experience under their belt, but they are also the authors of the Virginia Drug Crimes Defense Manual. If you have been charged with possessing or distributing synthetic marijuana call the attorneys of Nichols & Green PLLC (703) 383-9222 for a free consultation today. They are happy to discuss your case and your defenses over the phone or in person as part of a free consultation.

    Nichols & Green PLLC defends synthetic marijuana crimes in Northern Virginia:

    • Arlington
    • Alexandria
    • Fairfax County
    • Fairfax City
    • Loudoun Count,
    • Prince William County
    • Fauquier County
    • Manassas
    • Herndon
    • Vienna
    • Stafford County

    Possession with Intent to Distribute a Controlled Substance

    Va. Code § 18.2-248 creates a special felony for possession with the intent to distribute a controlled substance.

    There are several ways the police attempt to prove possession with intent to distribute (PWID): undercover drug buys, confessions, text messages from the defendant’s phone, the quantity of drugs (more than the amount typical for personal use), possession of scales, individually packaged drugs, and possession of lots of cash.

    The punishments for PWID non-marijuana drugs increase as the quantity of drugs in the defendant’s possession increases. However, there is no minimum quantity for distribution of controlled substances. An officer can charge someone if they share one hit on a crack pipe or pass around a needle.

    Possession with intent to distribute schedule I, II, III, and IV drugs is a felony. Distribution of Schedule I/II drugs comes with up to 40 years in prison for the first offense and life in prison for the second offense with a mandatory minimum of three years. For the third offense, possession with intent to distribute a schedule I/II comes with a maximum of life in prison and a minimum of 10 years. Possession with intent to distribute is always a very serious crime.

    A list of all the penalties for the distribution of a controlled substance in Virginia. If you have been charged with distribution of possession with intent to distribute drugs call (703) 383-9222 for a free consultation.

    Sale or Distribution of Drugs Near a School

    VA Code § 18.2-255.2 bans the distribution or sale of drugs near schools, daycare centers, school bus stops, and many other public locations. This law applies even if the defendant was not intending to distribute the drugs on school property.

    For instance: if a defendant drives through a school zone while dropping some pills off at his friend’s house, he has violated this statute.

    There is a long list of locations where this statute applies: any public property within 1,000 feet of any school, including colleges and junior colleges, school bus stops (if children are present), daycare centers, recreation centers, public libraries, community centers, and any public property within 1,000 feet of a state hospital or health facility.

    To charge an individual with possession of intent to distribute, the police must prove the intent to distribute the drugs. The most common ways the police prove distribution is through text messages, voice mail messages, police stings, undercover informants, and statements by the defendant.

    Possessing scales, several small individually wrapped quantities of drugs, large amounts of cash in small bills, and hanging out in a high drug-crime area can also be used as evidence to suggest distribution.

    However, it is important to remember that the government must prove that the defendant intended to distribute the specific drugs he possessed at the time.

    For example, if the police catch a suspect with .6 ounces of cocaine and a text message offering to sell 10 ecstasy pills, that may not be enough to prove the distribution of .6 ounces of cocaine.

    Also, if a suspect is caught with .2 ounces of cocaine and a text message from a week ago offering to sell some cocaine, that text message may be too old to prove that the suspect possessed the .2 ounces with the intent to distribute.

    Call (703) 383-9222 when you need a possession with intent to distribute lawyer in Northern Virginia.

    Luke J. Nichols and Garrett D. Green are the senior partners at Nichols & Green PLLC and they defend hundreds of people accused of crimes in Northern Virginia. If you have been charged with the distribution of a controlled substance in Northern Virginia call (703) 383-9222 for a free consultation with an attorney today.

    These lawyers wrote the book on defending drug crimes in Virginia and they are happy to share their knowledge and experience with anyone charged with a drug crime in Northern Virginia as part of a free consultation.

    Call Nichols & Green PLLC when you need:

    • A Fairfax County Drug Distribution lawyer
    • A Fairfax City Drug Distribution lawyer
    • A Prince William County Drug Distribution lawyer
    • A Manassas Drug Distribution lawyer
    • An Arlington Drug Distribution lawyer
    • An Alexandria Drug Distribution lawyer
    • A Loudoun County Drug Distribution lawyer
    • A Stafford County Drug Distribution lawyer
    • A Fauquier County Drug Distribution lawyer
    • A Herndon Drug Distribution lawyer
    • A Vienna Drug Distribution lawyer

    Possession of a Controlled Substance

    Va. Code § 18.2-250 makes it illegal to possess any controlled substance in Virginia without a valid prescription.

    The vast majority of street drugs are Schedule I/II drugs. Prescription drugs that are used recreationally are Schedule II, III, IV, and V. Schedule VI drugs include all remaining prescription drugs that are not in one of the other schedules. Schedule VI drugs are generally prescription drugs that have no recreational value.

    How Can the Police Prove I Was in Possession of a Controlled Substance?

    Possession of a controlled substance is different than ownership? You can own something that you don’t possess and you can possess something that you don’t own. In Virginia owning drugs is not illegal, possessing drugs is a crime.

    Possession of controlled substances occurs when drugs are in your “dominion and control”. Dominion and control means that you have the power to do what you want with the drugs. Possessing drugs requires:

    1. That you knew that you were in possession of drugs, AND
    2. that you knew what you were possessing were drugs.

    Being close to drugs is not enough to prove possession of drugs in Virginia. Finding drugs in someone’s car or home is also not enough to prove drug possession in Virginia. The police must prove that the defendant knew the drugs were there and knew that the substance they possessed was drugs.

    The typical way that the police prove drug possession is through confessions or circumstantial evidence. For example: The police can prove that you knew that there were drugs in your car if the drugs were in plain sight and they can prove that you knew what the drugs were based on your statements to the police.

    However, if the police find drugs in your car and you do not confess to knowing the drugs were there, it is very difficult to prove possession without strong circumstantial evidence.

    Penalties for Possession of a Controlled Substance in Virginia.

    These are the penalties for possession of a controlled substance in Virginia:

    • Possession of a Schedule I or II drug is a Class 5 felony with up to 10 years in prison and a $2,500 fine.
    • Possessing a Schedule III drug is a Class 1 misdemeanor with up to 12 months in jail and a $2,500 fine.
    • Possession of a Schedule IV drug is a Class 2 misdemeanor with up to six months in jail and a $1000 fine.
    • Possession of a Schedule V drug is a Class 3 misdemeanor with a maximum fine of $500.
    • Possession of a Schedule VI drug is a Class 4 misdemeanor with a maximum fine of $250.

    If you are charged with possession of a controlled substance in Virginia call Nichols & Green PLLC for a free consultation (703) 383-9222.

    The lawyers of Nichols & Green PLLC have plenty of experience defending people charged with possession of a controlled substance in Northern Virginia. Luke Nichols and Garrett Green have been defending criminal cases in Northern Virginia for many years and they have defended hundreds of people in court. Mr. Nichols and Mr. Green are also the authors of the Virginia Drug Crimes Defense Manual and they have researched and written much on the subject of possession of controlled substance law in Virginia.

    If you are charged with possession of a controlled substance in Virginia and you would like to speak to Mr. Nichols and Mr. Green, call (703) 383-9222 to speak to these lawyers about your case as part of a free consultation.

    Contact Nichols & Green PLLC for a Drug Possession Lawyer in Northern Virginia.

    • If you need a Fairfax County possession of a controlled substance lawyer
    • If you need a Fairfax City possession of a controlled substance lawyer
    • If you need a Prince William County possession of a controlled substance lawyer
    • If you need a Manassas possession of a controlled substance lawyer
    • If you need an Arlington possession of a controlled substance lawyer
    • If you need an Alexandria possession of a controlled substance lawyer
    • If you need a Loudoun County possession of a controlled substance lawyer
    • If you need a Herndon possession of a controlled substance lawyer
    • If you need a Vienna possession of a controlled substance lawyer
    • If you need a Fauquier County possession of a controlled substance lawyer
    • If you need a Stafford County possession of a controlled substance lawyer

    Possession of Drug Paraphernalia

    Is Drug Paraphernalia Illegal In Virginia?

    Simply possessing most drug paraphernalia in Virginia by itself is not a crime but hundreds of people get ticketed, arrested, and convicted because they are caught with drug paraphernalia. Here is why:

    Possession of drug paraphernalia such as bongs, pipes, grinders, wrapping papers, baggies, hookas, spoons, or roach clips is not illegal in Virginia. However, if those items have been used with illegal drugs then there is probably some drug residue on the paraphernalia. If the police are able to successfully test that residue then you can be charged with possession of that drug.

    For example: If a driver is stopped and caught with an empty marijuana pipe and the police shove a swab into the bowl and test the bowl they will likely get a a positive hit for marijuana even if the pipe is fairly clean. The driver will then be charged with possession of marijuana. There are no minimum quantities for possession of drugs in Virginia. If the police can test the drugs they can convict you for possession of drugs regardless of the actual amount.

    In addition, there are also several laws that govern drug paraphernalia: Va. Code 54.1-3466 makes it illegal to possess syringes and equipment for making pills or capsules for the distribution of controlled drugs but not the type of drug paraphernalia associated with street drugs.

    Va. Code 18.2-265.3 makes it illegal to sell or possess with intentions to sell drug paraphernalia such as bongs, grinders, roach clips, etc. In this statute, street drug paraphernalia is covered but the government must prove two things: 1) that the drug paraphernalia was intended for use with illegal or prescription drugs and 2) that the defendant was selling or intending to sell the paraphernalia.

    Va. Code 18.2-265.5 and Va. Code 18.2-255.1 make it illegal to advertise for sale drug paraphernalia. Va. Code 265.5 governs advertising to anyone. Va. Code 18.2-255.1 makes it illegal to advertise to minors. Both of these crimes come with a maximum penalty of 12 months in jail and $2,500 fines.

    Possession of Drug Paraphernalia

    The only items that count as drug paraphernalia under Va. Code 54.1-3466 are syringes and items used for injecting drugs. Scales, grinders, bongs, etc. are not paraphernalia under Virginia law.

    However, this statute is often used by defense attorneys as a substitute for many other drug crimes. This charge is a popular plea deal because it won’t result in a license suspension. People who need to drive may prefer a conviction for paraphernalia rather than a conviction for any of the other drug crimes.

    A prosecutor and defense attorney can agree to amend a drug charge to possession of paraphernalia even if the defendant did not possess any syringes, but only if both the defense attorney and the prosecution agree.

    Call Nichols & Green PLLC if you are charged with possession of drug paraphernalia or if you are charged with any drug crime in Virginia. (703) 383-9222

    At Nichols & Green PLLC we wrote the book on defending drug paraphernalia charges and other drug crimes. Mr. Nichols and Mr. Green have defended hundreds of people accused of crimes in Northern Virginia and they defend a lot of drug crimes. Call today (703) 383-9222 to get a free consultation from our lawyers.

    Possession of Marijuana

    (MARCH 4th 2020 UPDATE on Marijuana Law in Virginia)

    Marijuana laws in Virginia are changing very rapidly. HB972 and SB2 2020 are two bills that pass the VA House and Senate and are headed to the Governor for signing. Both bills decriminalize possession of marijuana and possession of THC oil (aka Hash Oil) BUT these bills have NOT become law yet (as of March 4th, 2020)

    Possession of THC oil and Marijuana will still be illegal but they will be civil offenses NOT criminal offenses. This means that you will not go to jail for possession of these offenses but can be given a ticket and up to a $25 fine (no court costs). There is also language to allow engagement in possession of marijuana convictions and arrests in the past. These laws also create a rebuttal presumption that if you have less than 1/2 oz of marijuana you are not dealing marijuana.

    Possession of marijuana with the intent to distribute it (in any quantity) will still be a criminal offense.

    At this time, several Commonwealth Attorneys (including Fairfax’s) have announced their intentions to NOT prosecute certain possession of marijuana cases (not a juvenile, small amounts, not consuming publicly, not offensive behavior towards officers, etc.). However, some judges have been aggressively trying to thwart this policy and have been attempting to force the prosecution of marijuana cases.

    All of these policies and laws are changing dramatically and rapidly. Do NOT assume that marijuana is being ignored by the police, Do NOT assume it is legal or that you will not be prosecuted. Now more than ever you need to talk to a local attorney for up-to-date information on what is happening right now in Virginia courts.

    (Here is what the current laws are regarding possession of marijuana as of March 4th, 2020)

    All marijuana convictions come with a six-month loss of license even if the driver enters the first offender diversion program under Virginia code 18.2-251.

    Possessing synthetic marijuana is more serious than real marijuana. And growing marijuana can result in five to 30 years in prison. Another surprise is that there is no minimum quantity threshold for distribution. A person can be charged with distribution for sharing the scrapings from their pipe.

    Possession of Marijuana

    VA Code § 18.2-250.1 makes it a crime to possess any quantity of marijuana without a valid prescription. And a doctor cannot prescribe marijuana in Virginia.

    It is a misdemeanor to possess marijuana. A first offense has a maximum penalty of 30 days in jail, a $500 fine, and a six-month loss of driving privileges. A second offense has a maximum penalty of 12 months in jail, $2,500 in fines, and a six-month loss of license.

    First-time marijuana possession is a criminal offense and a conviction will go on one’s criminal record forever. There is no way to expunge a criminal conviction in Virginia, even if the charge is later dismissed as part of a first-offender program.

    Marijuana resin, tar, residue, ash, and most parts of the plant are treated as marijuana according to Va. Code §54.1-3401. Mature marijuana stalks are not considered to be marijuana under Virginia law, but only if the stalks are not combined with any other illegal part of the marijuana plant.

    Because of this law, the police can charge a person with possession if they have even the tiniest amount of residue or ash on a pipe, bong, or grinder. If you have a dirty pipe, bong, grinder, or a similar item, then you can be charged with possession of marijuana.

    Possession of marijuana requires the government to prove two things: 1) that the substance was marijuana and 2) that the defendant possessed it.

    Proving that a substance is marijuana requires field or laboratory testing. Marijuana testing presents complicated evidential and legal issues.

    Proving possession requires proving 1) that the defendant knew that the marijuana was in their control and 2) that the defendant knew the item was marijuana.

    Call Nichols & Green PLLC (703) 383-9222 for a free consultation if you have been charged with possession of marijuana in Northern Virginia.

    The attorneys of Nichols & Green PLLC defend hundreds of people each year in Northern Virginia. Possession of marijuana is one of the most common crimes we defend people from. Mr. Nichols and Mr. Green have spent years researching and studying Virginia drug laws. Not only do they practice criminal defense, but Luke Nichols and Garrett Green are also the coauthors of the Virginia Drug Crimes Defense Manual.

    If you have been charged with possession of marijuana in Virginia, call Nichols & Green PLLC at (703) 383-9222 and let Mr. Nichols and Mr. Green share their knowledge and experience with you as part of a free consultation.

    Nichols & Green PLLC defends Virginia’s possession of marijuana across Northern Virginia.

    • Arlington possession of marijuana lawyer
    • Alexandria possession of marijuana lawyer
    • Fairfax possession of marijuana lawyer
    • Herndon possession of marijuana lawyer
    • Loudoun possession of marijuana lawyer
    • Manassas possession of marijuana lawyer
    • Prince William’s possession of marijuana lawyer
    • Stafford possession of marijuana lawyer
    • Vienna possession of marijuana lawyer

    Prescription Fraud

    Obtaining Drugs by Fraud, Prescription Fraud, and Making a Fake Prescription

    Va. Code 18.2-258.1 outlaws most conceivable ways that a person can attempt to get drugs by fraud, forgery, or deceit. Some of the common ways people commit this crime include:

    • Making, using, or attempting to use fake prescriptions
    • Using a fake name or ID to get or fill a prescription
    • Using fake prescription labels (for example, on pill bottles)
    • Stealing prescription drugs or prescriptions from an employer
    • Lying to a physician about one’s health in order to get a prescription

    However, this law does not outlaw simply possessing a fake prescription, even if you know it’s fake.

    This law also does not ban attempting to fill another person’s prescription as long as a fake ID or false information is not used.

    Obtaining drugs by fraud is a felony in Virginia and comes with up to five years in prison and a six-month loss of license.

    Prescription Fraud and Miscellaneous Virginia Drug Crimes Penalties

    Aiding in Illegally Obtaining Prescription Drugs – Va. Code 18.2-258.2

    To be guilty of aiding others in illegally obtaining prescription drugs, you must get paid for your assistance. The payment can be money, favors, or goods, but the government must prove you did it for payment.

    This law also requires that you know that the drugs were being obtained illegally. A common example of this is when a pharmacist or doctor sells drugs to people without a prescription or writes a bogus prescription for money.

    Call Nichols & Green to speak to a lawyer who defends prescription fraud crimes in Northern Virginia.

    Mr. Nichols and Mr. Green defend hundreds of people each year in courts across Northern Virginia. At Nichols & Green PLLC, defending prescription fraud and other drug crimes is a major focus of the law firm. Not only do they have ample experience defending people charged with drug crimes like prescription fraud, but Mr. Nichols and Mr. Green are also the authors of the Virginia Drug Crimes Defense Manual.

    If you have been charged with prescription fraud or any drug crime in Virginia, call Nichols & Green PLLC for a free consultation in person or over the phone by calling (703) 383-9222.

    At Nichols & Green PLLC we defend drug crimes in jurisdictions all over Northern Virginia, including:

    • Fairfax County drug crimes
    • Fairfax City drug crimes
    • Prince William drug crimes
    • Manassas drug crimes
    • Loudoun County drug crimes
    • Arlington drug crimes
    • Alexandria drug crimes
    • Herndon drug crimes
    • Vienna Drug crimes
    • Stafford County drug crimes
    • Fauquier County drug crimes

    Virginia Drug Crimes Defenses

    Call Nichols & Green PLLC (703) 383-9222 to discuss your Virginia drug crimes defenses.

    Luke Nichols and Garrett Green have defended hundreds of people accused of criminal offenses in Northern Virginia. Nichols & Green PLLC knows criminal defense and they know how to drug crime defenses. More more information on what drug crime defenses you may have, call Luke Nichols and Garrett Green for a free consultation and a free copy of their book The Virginia Drug Crimes Defense Manual (703) 215-1114.

    The Government Can’t Prove Possession

    A defendant cannot be convicted for drug possession unless the government can prove that the defendant possessed the drugs.

    Possession is not the same as ownership. You can possess drugs that someone else owns. If you tell the police, “Those drugs belong to my friend, I’m just holding them for him,” that is a confession not a defense.

    Possession means that you have some degree of physical control over the drugs. Having physical control over drugs can be as simple as holding drugs, storing drugs, moving drugs, using drugs, or touching drugs. However, having drugs in your system (being high) is not the same as possession because you no longer have any control over the drugs in your body.

    Proving possession can be difficult. The police often cannot prove possession when they find drugs near a group of people (for example in a car full of people). The police may try to charge everyone in the area with possession in the hopes that one of them confesses.

    However, the police must prove which member(s) of the group had physical control over the drugs. Without out some evidence of control over the drugs, the government cannot prove possession.
    See?

    The Government Can’t Prove that the Defendant Knew Drugs Were Present

    Possession occurs when you have physical control over something. Possession also requires knowledge. To possess drugs you must know that the drugs are present.

    Being the driver or owner of the car is not enough to prove possession of drugs found in a car. The government must be able to prove that the defendant knew the drugs were present. The same rule that applies to cars can apply to homes, bags, and other property. If the drugs were not in plain sight or in your pants pocket, the police will probably be required to prove you knew the drugs were present.

    The police will try to prove possession by getting the defendant to admit that they knew the drugs were present. That is why remaining silent and talking to your attorney about all conversations with the police is so important.
    See?

    The Government Can’t Prove the Defendant Knew the Substance was Drugs

    To prove that a defendant possessed drugs, the government must prove that the defendant knew the substance was marijuana, cocaine, or some other illegal drug.

    This can be difficult when the possession charge is based on resin, residue, or trace amounts of drugs. For example, if an officer searches the floor of a car and finds a discarded baggie with one or two flecks of marijuana inside, the government will have to prove that the defendant knew those green flecks were marijuana.

    In cases involving synthetic marijuana or prescription drugs containing controlled substances, the police may be required to prove that the person knew that those drugs contained an illegal substance. This can be extremely difficult to prove without a confession by the suspect.

    In such cases, the police question suspects and try to get confessions. Always exercise your right to remain silent and tell your attorney everything you said to the police.
    See?

    Government Cannot Prove Distribution

    Possession with intent to distribute (PWID) is much more serious than simple possession. To prove PWID, the government must prove that the defendant possessed drugs and intended to distribute those drugs.

    The government will try to use the defendant’s text messages and admissions, confidential informants, and undercover detectives to prove PWID.

    The police will also try to use circumstantial evidence, such as scales, multiple small packages of drugs, large quantities of drugs, or large amounts of cash on the suspect. This type of evidence alone may not be enough to prove PWID. If your arrest for PWID is based on circumstantial evidence, discuss it with your attorney immediately.
    See?

    The Government Can’t Prove the Weight of the Drugs

    For many PWID cases and some possession cases, the weight of the drugs found on the defendant has a major effect on the outcome of the case. For example, PWID marijuana of more than .5 ounces is a felony, whereas less than .5 ounces is a misdemeanor.

    In situations where the weight of the drugs may lead to elevated punishments, it is important that the government prove the exact weight of the drugs.

    However, when weighing drugs that are mixed (or “cut”) with other substances, the weight of the entire substance, including impurities, is counted towards any enhanced punishments. For example, if a suspect is arrested for PWID cocaine mixed with baking soda, the combined weight of the baking soda and cocaine is used for sentencing. The defendant cannot avoid the enhanced punishment by claiming that only part of the weight was actually cocaine.

    Often the police will attempt to weigh the drugs while they’re still inside their packaging, which can sometimes add significant weight to the measurement.

    When the drugs are measured, the quality and calibration of the scale may come into question and the person who measured the drugs may be forced to appear in court for cross-examination by your attorney. If the person or techniques used to weigh the drugs do not stand up to cross-examination, or if the person who did the weighing fails to appear in court, the weight of the drugs may be excluded from evidence.
    See?

    The Government Can’t Prove a Miscellaneous Element of the Crime

    Several drug crimes include miscellaneous elements. Some examples could include the defendant’s proximity to a school at the time of possession, whether a BB gun found on the defendant counts as a firearm, and whether a prescription the defendant used was forged.

    The government has to prove all elements of the crime beyond a reasonable doubt. When talking to your attorney it is important to discuss each element of the crime and whether or not the government can prove each one.
    See?

    Evidence produced by an illegal search cannot be used at a trial. In most drug cases, an illegal search results in the dismissal of the entire charge. It is important to understand your rights in order to communicate effectively with your attorney.

    If the police searched you or your property, our web page on illegal searches and seizures and discuss your search in detail with your attorney.

    Illegal Stop/Seizure

    A seizure is when the police restrict your freedom. Some examples of seizures include: being pulled over, being arrested, being handcuffed, being ordered to do something, or having the police take control of your possessions.

    Every drug case involves at least one seizure by the police. You and your attorney should discuss and identify each seizure and its constitutionality. If a drug case is based on an illegal seizure, the case may be dismissed entirely.

    To learn more about illegal seizures, read the chapter on illegal searches and seizures and discuss it with your attorney.
    See?

    Illegal Arrest

    An officer must have sufficient evidence that a suspect committed a crime before arresting them. The police cannot justify the arrest with evidence they find after the arrest.

    When talking with your attorney, make sure you clearly communicate the point at which each piece of evidence was found and the point at which you were arrested.

    Illegal arrests happen most frequently when a person is arrested for a very minor nuisance crime (for example, being drunk in public or disorderly conduct). When an officer arrests someone for these types of offenses, the officer is often only concerned with getting the person off the street. The officer may not care whether the minor charge actually results in a conviction so they may be sloppy about whether or not the arrest is valid.

    However, as the person is being arrested and searched, the officer may find drugs and then charge the person with additional drug crimes. If the defense attorney can show that the initial arrest was invalid, then both charges will be dismissed.

    If your drug charge stems from an arrest for another charge, discuss that other charge in all of its detail, because it may be very important to your drug case.
    See?

    No Laboratory Drug Test

    The government must prove beyond a reasonable doubt that the substance in question was not only a drug but a specific type of drug as well. This usually requires a drug test.

    There are two basic types of law enforcement drug tests. There are the field test kits that the police on the street use to justify a drug arrest. There are the tests run by the Department of Forensic Science (DFS) laboratory which are used to convict defendants of drug charges.

    For most drug cases the field test kits are not reliable enough to justify convicting someone. The government must have a DFS certificate of analysis which states the exact type of drug and the quantity.

    The one exception to this rule is simple possession of marijuana. The government can convict someone of simple possession of marijuana without a DFS laboratory test only if the officer or the government notifies the defendant of their right to request a DFS lab test.

    If the government fails to notify the defendant of their right to get an independent DFS lab test, the government may not be allowed to use the marijuana field test kits as evidence at trial. If you are charged with possession of marijuana, discuss with your attorney whether or not you received any paperwork regarding your right to get the marijuana tested.
    See?

    An Invalid Certificate of Drug Analysis

    The US Supreme Court case MelendezDiaz v. Massachusetts changed drug prosecution in the United States. The Melendez-Diaz ruling states that a defendant has a constitutional right to cross-examine technicians who perform drug tests in police laboratories.

    If a defendant is not given an opportunity to cross-examine these witnesses, then the court may determine that the lab test is not admissible evidence.

    Excluding the laboratory certificate of analysis in a drug case may result in a dismissal.

    In Virginia, a prosecutor may attempt to restrict your Melendez-Diaz rights. A competent criminal defense attorney can easily prevent this from happening by filing a notice with the court within a very specific time period. Make sure you hire a criminal defense attorney as soon as possible so that your attorney has enough time to file this paperwork.
    See?

    Invalid Drug Test Kit

    Police can only use a valid drug test kit. To be valid, the make and model of the kit must be approved by the Department of Forensic Science (DFS).

    Also, the kit must be used properly and before its expiration date.
    See?

    The Marijuana Stalks Were Mature

    Mature marijuana stalks have very little THC and no real recreational value but can be used for legal purposes. Consequently, mature marijuana stalks are not considered marijuana under Virginia law.

    If the marijuana found on a defendant is residue, ash, or indeterminate plant material, the government may not be able to determine whether it is from the stalk of a mature marijuana plant. Drug testing will only determine whether the material contains any measurable amount of THC, and residue from mature stalks can also test positive for THC.
    See?

    The Officer was Outside His Jurisdiction

    A county or local police officer can only act as a police officer inside his own jurisdiction.

    Make sure you know what type of police officer pulled you over, stopped you, and arrested you (county, state, federal, city/town, college police, metro police, or park police). If you were stopped, chased, or arrested outside the officer’s jurisdiction tell your attorney immediately.

    College or university police officers have jurisdiction on campus property and on roads abutting campus property. The Washington Metropolitan Airport Authority Police have authority at Dulles and Reagan National airports and along some of the access roads (such as the Dulles toll road).

    County, city, and town officers generally can enforce the law 300 yards outside of their jurisdiction. They can also chase a person up to a mile outside their jurisdiction.
    See?

    Multiple Officers Involved In Your Case

    During an investigation, traffic stop, search, or arrest, there are usually several officers on the scene. However, only one officer should be interacting with the suspect.

    The first officer on the scene should take charge as the arresting officer while the others should be there only as backup in case of emergency.

    The reason for this rule is simple. An officer can only testify to what he personally witnesses, not to what someone else witnesses. If multiple officers are involved in the investigation, then more than one officer may be required to show up at trial.

    Each officer is scheduled to appear in court on a dedicated court date. It can become a logistical nightmare if multiple officers are required on your case. This can be a major strategic advantage for the defense, but only if the defense attorney is aware of the situation.

    If someone other than the arresting officer stopped you, searched you or your property, found evidence, questioned you, or otherwise interacted with you, talk to your attorney immediately. Make sure your attorney knows which officers did what.
    See?

    Wrong Court (Wrong Jurisdiction)

    Before a court can pass judgment on you, it must have jurisdictional authority. General District Court has no authority over minors, and Prince William County courts have no authority over cases that occurred in Arlington. The Federal courts cannot hear state law cases that occur outside of federal jurisdictions. Make sure your attorney knows where each aspect of your case occurred and what court you have been summoned to appear in.
    See?

    Invalid Warrantless Arrest

    Under Virginia law, a police officer is allowed to arrest a person for a misdemeanor without a warrant only when the officer witnesses the crime or under very specific circumstances.

    Those circumstances include the scene of a car accident on a public road, at the hospital after a car accident, in shoplifting cases, in DUI cases (within three hours of driving), and a few other situations.

    Your arrest may have been invalid IF:

    • You were arrested for a misdemeanor
    • The police officer did not have an arrest warrant
    • The officer did not witness you commit the crime and
    • You were not at the scene of a motor vehicle accident on a public road, transported to the hospital after an accident, shoplifting, or drunk driving within three hours of the arrest.

    Pre-Sentencing Report and Sentencing Guideline Errors

    Figuring out what punishment to give a person can be much more complicated than determining whether they are guilty. The Pre-Sentencing Report and Virginia Sentencing Guidelines are prepared by probation officers and used by judges when sentencing the defendant.

    The Pre-Sentencing Report is 20 to 40 pages. The probation officer will interview the defendant before the sentencing hearing to gather information for the report.

    The probation officer will ask the defendant their version of events, their background, their employment, and their substance abuse history, among other things.

    A favorable and accurate Pre-Sentencing Report can be extremely beneficial. The defendant should be prepared for the interview and review the final report with their attorney prior to the sentencing hearing. Many of these reports contain errors that should be clarified before the sentencing hearing.

    The Virginia Sentencing Guidelines are a complex series of mathematical formulas and charts that determine a defendant’s recommended punishment. This formula is calculated by the probation officer and included in the Pre-Sentencing Report.

    Past criminal history, number of counts, whether a weapon was involved, juvenile record, whether the defendant has served jail time, the number of drugs, and the defendant’s probation status at the time of the offense are all examples of factors that affect the sentencing recommendation.

    It is very common for the sentencing recommendation to be calculated wrong. These errors can be caused by flawed criminal background checks, inaccurate court records, human error, or vagueness in the guidelines themselves.

    These errors can be the difference between no jail time and years in jail. Your attorney must know everything about your adult and juvenile criminal record whether it happened in Virginia or outside Virginia. Your attorney must also be well-versed and trained in calculating the Virginia Sentencing Guidelines. Always review your Pre-Sentencing Report and your Sentencing Guidelines with your attorney prior to your sentencing hearing.
    See?

    The 251 Program (First Offender Program)

    Va. Code 18.2-251 states that the courts may place first-time drug offenders in a special program called the “251 program.” If the defendant successfully completes the drug program the case may be dismissed.

    The 251 program differs slightly from locality to locality, but it typically involves all of the following:

    • 6 to 12 months of probation
    • Fines, court costs, and fees
    • 100 percent abstinence from drugs and alcohol
    • Passing drugs and alcohol tests
    • 24 hours of community service
    • A six-month license suspension
    • 10 weeks or more of ASAP classes.

    Even though successful completion will result in dismissal, there are some hidden downsides to the 251 program.

    Completing the 251 program does NOT mean the criminal record is sealed or hidden. When you are arrested for any criminal offense, a record of your arrest is made. Likewise, the results of the criminal case are also recorded.

    If you plead guilty and complete the 251 program your records will indicate that you pled guilty, completed a program, and the case was dismissed. Most if not all of this basic information will be public.

    You cannot get an expungement or seal your record if you plead guilty or enter the 251 program.

    Another problem with the 251 program is that you still lose your driver’s license for six months. Talk to your attorney to determine whether a restricted license may be available.

    If you are not a US citizen, the immigration consequences of completing the 251 program and being convicted are exactly the same. Most drug crimes, including simple possession of marijuana, will likely result in deportation.

    If you are on probation or parole, entering the 251 program may result in a probation violation. If you are on any type of probation or parole you must talk to an attorney about it before deciding to enter any programs. A 251-dismissal may still land you in jail.

    Not everyone can successfully complete the 251 program. If there is any doubt as to whether you can successfully pass all the drug tests, complete the courses, and stay out of legal trouble for the entire probation period, you should discuss these problems with your attorney. Do not get set up for failure.

    Your attorney may be able to arrange a plea to another offense (such as possession of paraphernalia) that does not involve a loss of license, ASAP classes, probation, or drug testing.

    Even felony drug possession charges may be dismissed via an 18.2-251 disposition if the judge is willing to allow it. Getting a 251 disposition for felony drug possession is much more discretionary and not necessarily allowed as a matter of right.

    An experienced criminal defense attorney can give you counsel on how to obtain a 251 disposition for a drug possession charge and whether a 251 disposition is right for you.

    The Do-It-Yourself 251 Program

    There are many reasons why a first offender program or ”251 program” may be unacceptable to a defendant charged with simple possession of marijuana: the six-month loss of license, the immigration consequences, or the effects on education, security clearance, or employment.

    One alternative may be an unofficial or “do-it-yourself” 251 program.

    In this scenario, defendants put themselves through something very similar to the 251 program prior to their court date. They abstain from all drugs and alcohol, they do 25 hours of community service, they go through drug and alcohol testing, and they may even sign up for ASAP or a similar program.

    After completing all of these difficult and time-consuming tasks, the defense attorney presents this to the prosecution in an attempt to get the prosecution to dismiss the charges. If the prosecution dismisses the charges, there is no record of conviction at all.

    Unlike the official 251 program, the do-it-yourself version will not trigger deportation, security clearance violations, or in any way appear on your record as a conviction. Neither will it result in a six-month loss of license.

    Of course, this strategy has no guarantees. After all of that hard work, the prosecutor may refuse to agree to dismiss the charge. If the defendant then has to go through the regular 251 program, their pre-trial community service hours and drug testing efforts cannot be applied to the regular 251 program requirements.

    This defense strategy takes a lot of time and it is not a good fit for everyone. There is no substitute for consulting a criminal defense attorney as soon as possible.

    Virginia First Offender Program

    Virginia’s First Offender Diversion Program (18.2-251)

    The vast majority of drug charges are for simple possession by a first-time offender. Most of those possession charges involve marijuana. Many of those defendants will be asked by a judge whether or not they want to enroll in the “251 program.”

    The 251 program allows a defendant to have a first-time drug possession charge dismissed so long as they comply with a lengthy and strict set of conditions. While having charges dismissed sounds great, there are many conditions and exceptions attached to the 251 program and a dismissal for completing the 251 program is not the same as normal dismissal.

    251 Program Requirements

    A defendant who enters the 251 program must plead guilty or stipulate that the evidence is sufficient for a finding of guilt by the court. This means that even though your charge may be dismissed later on, entering the 251 program will affect your immigration status if you are not a US citizen and will likely result in deportation despite successful completion of the program. This also disqualifies 251 participants from getting an expungement.

    Some employers, educational institutions, and security clearance providers consider a 251 dismissal the same as a conviction because it requires a defendant to plead guilty. If you are concerned about the effects of a conviction on your work, security clearance, or schooling opportunities, then talk to an attorney immediately.

    The 251 program also requires the defendant to acknowledge that any violation of the probationary terms and conditions is grounds for a finding of guilt by the court. So if a defendant enters the 251 program and then violates the terms of probation, they will not have a chance to fight the charges. Once a defendant enters the program, they must complete the program or they will be convicted and punished.

    Defendants who enter the 251 program agree to allow the proceedings to be deferred and to be placed on active probation with the county Alcohol Safety Action Program for six months followed by another six months of inactive probation.

    The terms of the active probation include 10 weeks (two hours a week) of classes but can also include more intensive counseling and even rehab if ASAP determines that such treatment is necessary.

    Admission to the 251 program also requires that a defendant keep the court notified if their address changes while on probation. Failure to update your address can cause serious legal problems.

    251 program attendees agree that any notice of probation violations can simply be mailed to the address on file as opposed to being served by a sheriff’s deputy.

    If a defendant violates their probation, the court can then either fix a time for the defendant to become compliant or set a time for the defendant to be found guilty of possession for non-compliance.

    “251” First Offender Program Requirements:

    • Plead guilty (this can cause immigration problems)
    • Be placed on active probation ASAP
    • Pay $350 for ASAP plus court costs and other fees
    • Complete the 10-week ASAP program on time
    • Pass drug tests during probation
    • No drugs or alcohol while on probation
    • Suspended driver’s license for six months
    • Complete 24 hours of community service

    Six-Month Driver’s License Suspension

    Defendants who enter the 251 program will lose their driver’s license for six months if they have a Virginia driver’s license. However, Virginia drivers can ask the judge for a restricted license allowing them limited driving to and from work, school, church, medical appointments, ASAP, and a few other possible exceptions. Talk to your attorney about your driving needs and work schedule to find out whether a restricted license would be possible or practical.

    Drivers with non-Virginia driver’s licenses will be banned from driving in Virginia but the Virginia courts do not have the authority to suspend their right to drive outside of Virginia. Out-of-state drivers are not often given restricted licenses by most judges. Out-of-state drivers’ home states can also choose to suspend their right to drive outside of Virginia.

    Costs and Fees for the First Offender Program

    (All dollar amounts in this chapter are estimates and are subject to constant change. Please use these amounts as estimates only)

    251 participants are responsible for all costs, including drug screening, drug testing, and treatment (unless they can show the court they are indigent).

    The cost of participating in the 251 program is $350, which includes your initial assessment at ASAP, education classes, probation monitoring, and drug screenings. (Fairfax County ASAP won’t take cash but will accept checks, credit cards, or money orders). The $350 cost includes the following:

    • $150 for the intake assessment and probation supervision
    • $100 for the education intervention
    • Two urine screens valued at $50 each

    These costs are in addition to the court costs and fines that the court may also impose.

    A defendant must pay extra if they’re referred to counseling or treatment in addition to the 10-week course. Extra treatment is more likely for defendants who have any type of substance abuse problem.

    These extra classes and treatments can cost a few hundred dollars or even thousands. Extra treatment can include mandatory inpatient rehab in extreme cases.

    Defendants who are required to do community service will have to pay a fee to the service organization as well.

    If you miss an ASAP class or appointment or even run late, your mere tardiness will cost you a $25 “processing fee.” Tardiness can also result in a probation violation and expulsion from the program.

    Failure to pay any of these fees, fines, or costs can result in non-completion of the program and a violation of probation.

    Conditions of Probation

    As part of the ASAP program, all defendants must agree to remain drug and alcohol-free for six to 12 months. They must also agree to submit to drug and alcohol tests ASAP. Anyone who admits to using drugs or alcohol or who shows up to ASAP classes exhibiting signs of drug or alcohol use will be required to submit to extra tests.

    A copy of the 2011 Fairfax County General District Court ASAP order form for drug possession charges is included in this section as a reference. Similar order forms exist for each jurisdiction’s ASAP program.

    Defendants who enter the 251 program will be required to complete 24 hours of approved community service and make a reasonable effort to get and keep a job.

    If a defendant fails to comply with any of the terms of their 251 probation they can be found guilty of their original charge and punished without an opportunity for a trial.

    ASAP Eligibility Requirements

    To be eligible for the 251 program a defendant must have no prior record of drug offenses, concurrent drug charges, or an 18.2-251 disposition.

    However, just because you may have a prior record does not necessarily mean that the ASAP program will have evidence of it. This is more likely if your prior charge occurred in a remote jurisdiction, when you were a minor, or before a name change due to marriage.

    You are eligible for the 251 program unless ASAP says you are not eligible, and even then you may be able to get into the program with the assistance of a knowledgeable criminal defense attorney.

    All 251 program participants must be able to complete the program in six to 12 months as a condition of eligibility.

    Effects of the 251 Program on Criminal Record and Immigration Status

    If a defendant successfully completes the 251 program, their criminal record will show that their crime was dismissed due to successful completion of the 251 program. A defendant cannot expunge or “seal” the record of their 251 dismissals in Virginia at this time.

    If you have a 251 dismissal on your criminal record, law enforcement and other people who look at your complete criminal record will be able to tell that your dismissal was part of the 251 program and not because you were found “not guilty.” In the eyes of some people, a 251 dismissal is not the same as a true dismissal.

    A dismissal through the 251 program has the same effect on one’s immigration status as a conviction. If you are not a US citizen, a conviction for almost any drug offense (including the lowest form of marijuana possession) can result in deportation. If you are not a US citizen, hire an attorney immediately upon your arrest for any drug crime.

    Indicators that the 251 Program May Not Be a Good Idea for Your Case.

    Entering the 251 program instead of fighting your charge may not be a good idea IF:

    • You are not guilty or have good legal defenses. Why go through the 251 program if you are not guilty or if the government has no case? Always consult a competent attorney before agreeing to enter the 251 program.
    • You cannot afford to lose your driver’s license for six months. Entering the 251 program will result in a six-month loss of driving privileges. Restricted licenses are not always available. If this is unacceptable, talk to an attorney before entering the 251 program.
    • You may get another drug charge in the future. Most officers, prosecutors, and judges treat a 251 dismissal on your record the same as a conviction. Suspects with a 251 dismissal on their records are less likely to be cut a break by an officer on the street or by a prosecutor or judge.
    • You may want to do the 251 program in the future. Preserve your ability to go through the 251 program if at all possible as a form of insurance against potential future charges.
    • You cannot 100 percent abstain from all illegal drugs and alcohol. Defendants in the 251 program will undergo drug and alcohol testing. If you fail these tests you can violate your probation. If you are not 100 percent confident in your ability to stay clean, the 251 program may not be a good idea.
    • You are not a US citizen. The 251 program can result in your deportation if you are not a US citizen. Talk to an attorney immediately if you are ever charged with a drug crime.
    • You are on probation. Because entering the 251 program involves admitting that the facts are sufficient to find you guilty, doing so may cause you to violate your probation. Consult an attorney immediately if you were on probation when you were charged with drug possession.
    • You want your day in court. You have a constitutional right to a trial. Do not give up that right without a good reason.

    Call Nichols & Green PLLC at 703-383-9222 for a free consultation before entering the first offender program in Northern Virginia.

    The lawyers of Nichols & Green PLLC have been defending people like you from drug crimes in Northern Virginia for years. Let these attorneys share their experience and knowledge with you. If you are a “first-offender” and charged with simple possession in Northern Virginia, do not go to court without consulting with an experienced drug crime defense attorney first. Call 703-383-9222 to get a free consultation about your case in person or over the phone.

    Was That Search Legal

    Common Illegal Stops, Searches, and Seizures

    The Fourth Amendment to the US Constitution prevents the government from unreasonably searching or seizing its citizens.

    “What is a search?” A search is an examination of something private. It includes searching your clothes, your body, or anything that belongs to you that cannot be seen by the public. A search can be as simple as asking someone to open their hand or moving a newspaper from a car seat to what is underneath.

    “What is a seizure?” A seizure is when the police limit your freedom. A traffic stop is a seizure, telling someone to “freeze” is a seizure. Handcuffing or arresting a suspect is another form of seizure. Confiscating property is also a seizure.

    If an officer unreasonably or illegally searches or seizes, any evidence that is found because of that search or seizure may be excluded from the trial. Arguing these two Fourth Amendment violations is the most common way drug cases are won.

    However, the following examples are just some of the common ways that officers illegally search or seize suspects in drug cases. If you believe you were illegally searched or seized, or if you think one of these scenarios applies to your case, discuss it with an attorney immediately.

    I Did Not Feel Free to Refuse the Search.

    An officer can search or seize you without any evidence if you willingly give them permission. Consequently, most officers will ask for permission to search whenever they have even the slightest suspicion. Officers are not allowed to use their position and authority to force people’s consent.

    The Supreme Court of the United States says that a suspect’s consent to search is only valid if a reasonable person in the suspect’s shoes would feel free to ignore the officer’s request.

    Some factors that may invalidate a search or seizure include:

    • The officer uses aggressive body language or tone of voice when requesting the search. (Example: Officer gets in your face and asks to search the car like he’s a drill instructor.)
    • The officer uses profanity or offensive language. (Example: Officer says, “Can I search the f***ing car or not?!”)
    • The officer repeatedly asks for permission to search. (Example: The suspect agrees to allow a search after an officer asks four or five times).
    • The officer accuses you of criminal activity before asking to search. (Example: “We think you are selling drugs on this street corner, now let me see what is in your hand.”)
    • The officers corner or surround the suspect while asking permission. (Example: Three officers surround a driver who was taken out of his car on a secluded road and ask to search his car.)
    • The officer threatens the suspect if they do not agree to the search. (Example: “If you don’t let me search your car I am going to make you sit here for an hour until the K-9 unit arrives.” Or, “If you don’t let me search you I am going to arrest you.”)
    • The officer asks permission while or after drawing his weapon.
    • The officer touches the suspect while asking permission. (Example: The officer puts his hand on the suspect’s shoulder and says, “Let me search you.”)
    • The officer asks permission to search after an illegal seizure. (Example: One officer illegally drags the suspect out of their car and cuffs them without justification and a second officer then comes along and politely asks for permission to search the car.)

    If any of these scenarios sound similar to your case, contact an attorney immediately. You may have an important defense.

    The Officer Asks for Permission to Search After Beginning the Search.

    An officer can search or seize you without any evidence if you willingly give them permission. However, they must get your permission before they begin the search.

    If you consented to a search, make sure you tell your attorney when you gave your consent when the officers began the search, and when they found any evidence. If the officers searched your car before asking permission, the search may have been illegal.

    The Officer Asked the Wrong Person for Permission to Search

    In order to get permission to search a citizen’s property, the police must ask the person who actually owns the property. Renters are treated like owners in many cases as well.

    A guest of yours usually cannot give the police permission to search your private room or private storage area. A passenger normally cannot give the police permission to search another person’s car. A landlord cannot give permission to search a rented apartment in many situations. A parent cannot give permission to search their adult child’s private room.

    If the police ask someone other than you for permission to search or seize your property, talk to an attorney immediately.

    The Officer Stopped Me for No Reason

    Traffic stops are seizures. If an officer pulls you over, that is a seizure. If an officer pulls up to a pedestrian or a parked car and activates the cruiser’s emergency light, that is usually considered a seizure as well. If an officer verbally or with hand gestures tells you to “stop” or “pull over,” that is also typically a seizure.

    In order to legally do this, the officer needs to have a reasonable suspicion that illegal activity or an emergency has occurred. The illegal activity can be extremely minor, such as a dead taillight, speeding, dangling objects from the rearview mirror, obscured license plate, or a blown tag light.

    However minor the criminal activity, the officer must be able to articulate why he believes the illegal activity was occurring. Racial profiling, vague accusations of “suspicious activity,” or driving away when the police arrive is not usually enough.

    Unjustified traffic stops most often occur when the suspect is already parked or when they are walking. Many officers do not realize that pulling up and turning on their lights may be the same as a traffic stop.

    The Police’s Search Went Too Far

    When the police are allowed to search something, there are always limits to the scope and manner of their search.

    If a person gives the police permission to search their car, the police cannot start tearing out the door panels and ripping up the carpet. This is because a reasonable person would not have interpreted giving permission to include damaging the car.

    If the police are allowed to search a car, that right may not include searching bags and containers inside the car. Also, it may not include patting down the driver and passengers.

    The police can go too far with search warrants as well. If a search warrant allows an officer to only search a home, the officer cannot use the search warrant to justify searching the suspect’s body, pockets, or car.

    When an officer justifies a search based on probable cause or reasonable suspicion, the search must be reasonably limited to discovering evidence of the suspected illegal activity.

    For example, if an officer sees a gun-shaped bulge in the waistband of a suspicious person, the officer may be allowed to stop and pat the suspect’s waistband to see if it is a gun. This suspicion alone does NOT allow the officer to then search the suspect’s backpack or car.

    If an officer pulls someone over for a traffic violation, the officer can detain the driver while running their driver’s license and writing a ticket. But it does not mean the officer can keep the driver on the side of the road for over an hour, interrogate them about unrelated crimes, or search the car for drugs. That’s going too far.

    Invasive body searches, strip searches, and body cavity searches are not permitted unless an officer has very strong evidence to believe that such a search is necessary and the search is done in a way that minimizes the invasion of privacy (i.e. the officer is the same gender and the search is done in a private area out of the public’s view). These types of searches are not normally allowed.

    If you were searched or seized and the officers took too long, were too invasive, or went too far, then talk to an attorney immediately.

    Searches or Seizures Based on a 911 Call or a Tip

    The police need certain evidence to search or seize a suspect against their will. The police cannot get around this rule just because they get a tip or a phone call from a citizen or another police officer.

    The US Supreme Court has said that if a police officer wants to search or seize someone because of a tip or 911 call, then the person who called the police must be 1) reliable and 2) knowledgeable.

    This means the officer must have evidence that the tipster or caller is trustworthy and has also based their tip on actual facts not just hunches. Most of the time, tips from citizens or 911 calls are not enough to justify a search or a traffic stop.

    Here are some examples of illegal search and seizure that are based on tips.

    • A neighbor calls 911 because two suspicious people are parked in a car along the street. The police arrive and pull up behind the parked car with their emergency lights activated. (This is illegal because the officer does not know the person calling and does not know what makes the car’s occupants suspicious).
    • An informant calls the police to report that he thinks two guys are selling drugs on the street corner in front of his house. The police arrive and detain two men matching the description in front of the house. (This is illegal because the informant said nothing to the officer that would let the officer know whether his suspicions were based on facts or a mere hunch)
    • An informant whom a police detective has worked with many times, tells the detective that there is an adult man sitting on a park bench with three crack rocks in a baggy in his front right pocket. The police go to the park and see three adult men and pick one to detain and search. (This search may be illegal because the police could only guess the identity of the suspect).

    If the police searched or seized you based on a 911 call or tip, talk to an attorney immediately.

    Police Search as a Result of an Illegal Arrest

    The police can search an arrested suspect before taking them into custody. The first search occurs before the suspect is placed in the police cruiser. Another search occurs at the jail during processing.

    However, if the police illegally arrest someone, the police cannot use the illegal arrest to justify the search.

    For example, a suspect is arrested outside a bar for being drunk in public. The officer arrests the suspect without breathalyzing them or checking to see whether they are drunk. While searching the suspect the officer finds a bag of weed and charges the suspect with possession of marijuana.

    If a judge decides that the officer did not have enough evidence to justify arresting the suspect for being drunk in public, then the arrest was illegal, the search was illegal, and the possession of marijuana case will likely be dismissed.

    If you were searched as part of an arrest for another crime, talk to your attorney about the facts surrounding the officer’s reasons for arresting you.

    The Police Searched Something Remote as Part of the Arres

    When the police arrest a suspect, they are allowed to search the suspect and their possessions that are immediately surrounding them at the time of arrest (for example, their pockets, clothes, and any bags they are carrying with them).

    A search as part of an arrest must be limited to searching the property immediately around a person at the time of arrest. An arrest search should not include bags, cars, or areas of the home not immediately around the person at the time of arrest.

    A common example of a bad arrest search is when an officer arrests a person on the side of the road after getting them out of their car to talk for a few minutes, and then searches their car. The judge may decide that the car was too far away from the scene of the arrest to be included in the arrest search. The same rule applies to bags, homes, apartments, and other property.

    Invasive body searches, strip searches, and body cavity searches are not permitted at the time of arrest unless an officer has very strong evidence to believe that such a search is necessary.

    If the police when overboard with their arrest search, talk to an attorney immediately.

    I Revoked My Permission

    A person can consent to a search and then revoke their consent. If a person tells an officer that they no longer agree to the search, the officer must stop immediately unless they have enough evidence to justify a search without consent.

    Typically, when people revoke their consent they often do so timidly and the police just continue to search. If you said anything during the search that suggested that you were no longer comfortable with the search, tell your attorney immediately.

    The Officer Who Comes to Trial Was Not the Officer Who…

    In court, police officer usually cannot testify to things that they did not witness themselves. During many arrests, and some traffic stops, multiple officers are involved. In these situations, the officer who made the first contact is usually the only one who talks to the suspect, does the searching, and makes the arrest. The other officers are supposed to aid the arresting officer only in the case of an emergency.

    If multiple officers are involved in the investigation, the arresting officer may be forbidden from testifying about what the other officers heard, saw, or found. For example, if three officers search your car and one of those officers finds something, the officer who found the item is usually required to be the one who testifies to the search results. Without the correct officers present at trial, the case may be dismissed.

    If any officer, other than the arresting officer, pulled you over, talked to you, participated in the search, found evidence, or interacted with you, discuss it with your attorney immediately.

    The Police Impounded My Car for No Reason

    The police are allowed to impound a car if it is illegally parked on a public road. Typically, this happens when an officer stops a driver who is then arrested. If the car is left on public property and is not legally parked, then the police will usually tow the car.

    The police are allowed to search a car they are impounding in order to inventory the contents. The purpose of this search is to make sure nothing is stolen out of the car at the impound lot. However, if the police find drugs or other evidence during the impound search, it can be used at trial.

    Sometimes the police will illegally impound a car in order to search it. If any of the following situations apply to your case, your inventory search may have been illegal.

    • The police searched your car before arresting you.
    • The car was parked on private property (for example, private parking lots or driveways).
    • The car was legally parked.
    • There was a licensed driver at the scene who could have driven the car away.

    If the police found evidence against you while searching your car as part of an inventory search and you believe the police illegally impounded your car, then contact an attorney immediately to discuss possible defenses.

    The Police Were Trespassing Prior to the Search

    Officers can search a car, home, or person if they can see, smell, or hear evidence of criminal activity. This is called the “plain view doctrine.” A typical example is an officer walking down the street, looking through the window of a parked car, and seeing drugs on the seat. The officer can then enter and search the car.

    However, this rule does not apply when an officer trespasses or performs an illegal search. Here are some examples of illegal searches in which the plain view doctrine does not apply.

    • An officer opens a car door to get a better look inside and sees some drugs.
    • An officer walks around the side of a house peeking through basement windows and sees drugs.
    • An officer walks into the open garage of a house and finds drugs.
    • An officer knocks on your door, talks to you in the entryway, and then steps into your house uninvited.

    If the police were trespassing when they found the evidence against you, or if any of these scenarios are similar to your situation, contact an attorney to discuss any possible defenses you may have.

    Miscellaneous Search Issues

    There are many other ways in which the police may illegally search or seize someone. There is no substitute for talking to a criminal defense attorney who is familiar with the volumes of search and seizure cases.

    In order to help your attorney defend you, make sure you tell him or her as much as you can about the following facts of your case:

    • The reason the police stopped or contacted you
    • Every question they asked you
    • Every answer you gave them
    • What they searched
    • At what point they conduct the search
    • What they found
    • Who it was that found it
    • Where it was when they found it

    Did the police search you illegally and charge you with a crime in Northern Virginia? Is so? Call Nichols & Green PLLC (703) 383-9222 for a free consultation.

    At Nichols & Green, we defend hundreds of people charged with crimes each year. Criminal defense is what we do at Nichols & Green so defending peoples’ constitutional rights against illegal searches is what we do.

    If you think the police in Northern Virginia searched you illegally during a criminal investigation, call Nichols & Green PLLC at (703) 383-9222 for a free consultation. We will be happy to discuss your case and what we can do for you.

    Schedule a Free Initial Consultation Today

    If you have a pending criminal case in Fairfax, or anywhere else in Northern Virginia, we want to hear from you. During your consultation, we will be happy to discuss your charges, go through possible defenses, and play out the potential outcomes of your case.

    Our consultations may address a variety of criminal charges and can be done in person or over the phone. Call today at (703) 383-9222 or contact us online to discuss your Fairfax criminal charges with our attorney.