Your Fourth Amendment Rights and Probable Cause

Posted in Criminal Defense, DUI, Real Life, Tactics
, 20
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Under the Fourth Amendment, the police can’t search you or seize your property without probable cause. Probable cause is commonly defined as a reasonable belief that a person has committed a crime.

Probable cause typically falls into four categories: observation, expertise, information and circumstantial evidence. Police can look at the totality of the circumstances in determining whether they have probable cause. For example, it is perfectly legal to possess plastic baggies, a digital scale, large sums of cash and multiple cell phones. However, if you are pulled over for a valid traffic stop, such as a suspected DUI, and police see all of these items in your vehicle, they could determine that they have probable cause for a search, because these items are indicative of drug trafficking.

You can unwittingly provide the police with probable cause against you. Acting nervous, giving evasive answers or conflicting statements can trigger probable cause when combined with other evidence. The best thing to do is to politely but assertively  tell the police officer that you do not consent to a search and that you would like to speak with an attorney. In addition, tell him that you assert your right to remain silent and will not answer any questions without your attorney present.

Under the Fourth Amendment, these are magic words that cut off the police officers right to question you. Make no mistake, if you are in a situation where a police officer is asking you questions, you are a suspect and you are under investigation. Do not make the incredibly common mistake of incriminating yourself!

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Drug Arrests Are Not All Equal

Posted in Criminal Defense, Real Life, Tactics
, 20
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California is known for a liberal policy on drugs and drug possession, but that is not always the case. Many drug possession cases are charged as felonies. And when it comes to selling, growing, manufacturing or transporting drugs, the penalties are massive.

Fortunately, under Health & Safety Code 11350, drug diversion is an option for many cases that involve only drug possession.

In cases involving the alleged sale of drugs, much of the case will hinge on the question of whether the prosecution can show “intent to sell,” which is difficult to prove, absent a sting operation. When a suspect is arrested, California police look for evidence of intent to sell. Such evidence might include:

  • Relatively large quantity of drug(s)
  • Large amounts of cash
  • Weapons
  • Plastic baggies or other separate containers
  • Multiple cellular phones
  • Text messages
  • Scales
  • Precursor materials
  • Lab equipment
  • Fertilizer, pots, soil

This evidence can be aggressively challenged. After a thorough investigation, we often find that California police:

  • make mistakes, exaggerate or lie in their police reports
  • make arrests despite lacking solid evidence
  • violate suspects Constitution right to be protected from illegal searches and seizures
  • obtain warrants based on faulty or trumped up evidence
  • violate California law against entrapment
  • make use of “informants” of dubious reliability
The key in drug cases is to chop away at the evidence and assumptions one by one. There is much that can be done to get your case dismissed. For example, often it turns out that the police illegally searched you. When that’s the case, your attorney can make a suppression motion and ask the court to show out the illegally obtained evidence. If the judge agrees, your case will likely be thrown out thanks to the motion to suppress.
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What is a Motion to Suppress?

Posted in Criminal Defense, DUI, Real Life, Tactics, Traffic
, 20
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A police officer cannot arrest you, search you or your property, or seize your property unless he has probable cause to do so. Probable cause is generally defined as “facts or evidence that would make a reasonable person believe that a crime or wrongdoing has been, is being, or will be committed.”

A suppression motion is a legal tactic used in criminal defense cases that generally will question whether the arresting officer had probable cause to make a traffic stop or an arrest and seize evidence against you. The suppression hearing is an opportunity for both sides to argue their positions on the motion to suppress to the judge. The judge will consider both the argument of the distract attorney, as well as the defense attorney, and ultimately make a decision as to whether the evidence in the case should be excluded.

If after analyzing the police report and other evidence obtained by our private investigator in preparation for your case, we determine that the police illegally obtained evidence against you, we will file a motion to suppress the evidence, known in California as a 1538.5 motion. The court will then schedule a suppression hearing for your case.

At the suppression hearing, we will contend that the judge must dismiss the evidence against you as a penalty for the police violating your constitutional rights. For a motion to suppress to be granted by the judge, we must prove that the search and/or seizure was illegal by a preponderance of the evidence. If the suppression motion is successful, the prosecution will be left with no evidence against you, and your case will almost certainly be dismissed.

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Do I Have to do the Field Sobriety Tests When I’m Pulled Over for DUI?

Posted in Criminal Defense, DUI, Real Life, Tactics, Traffic
, 20
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Nope.

Many people don’t know this, but the field sobriety tests are entirely optional. Also, field sobriety tests are designed for you to fail, and the science behind them is dubious. Is anyone really good at standing on one leg on the side of the highway and reciting the alphabet backwards? Of course not.

However, if you do choose to take the tests, everything that you say and do is later going to be used against you. Even if we assume that you complete the tests flawlessly, the officer will likely disagree. One day soon, he or she will be in court testifying about how you were swaying, slurring your speech, and generally acting like you were bombed out of your mind. Not good.

So what should you say or do? Here’s my suggestion: “Officer, I know that you are doing your job, but I respectfully decline any field sobriety tests, including the preliminary breathalyzer. I’d like to assert my right to remain silent.” Then, remain silent. If the officer believes he has probable cause to arrest you for DUI without the field sobriety tests, he will then arrest you and take you to the station.

At the station, in the vast majority of cases, it makes sense to take the blood or breath test at the police station or medical center. There are some exceptions, but that’s a topic worthy of another post.

While you probably should take the test at the police station or medical center, that doesn’t mean that you should start talking. Be cooperative and follow their directions, but don’t start talking. They’re still in the process of collecting evidence against you, and anything you say is going to come back to haunt you.

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What Do I Do When the Police Are Knocking At My Door?

Posted in Criminal Defense, Real Life
, 20
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I’m guessing you ask because you’d rather not invite them inside for tea?

In that case, there are eight steps that you can take that will help when the police are knocking at your door, assuming they don’t already have a warrant or probable cause to enter. If they have that, the game’s already over, sport.

Here is a lesson on what not to do, courtesy of the late Professor Charles Whitebread. He shared a story about his time as a criminal defense attorney. He had a client that greeted the police when they arrived at his house by saying, “You must be here about that Buick I stole!” (The police were there to ask for a donation to their local charity.)

Hopefully you can do better than that.

Here is the reality of the situation: there is only so much that you can do. If the police are intent on coming inside, you can’t physically stop them. Don’t try. But if the police are knocking because they are requesting to speak with you, as opposed to kicking the door down, it’s because they know that they can’t come inside without your permission. (Don’t give it to them.)

So keep it simple:

  1. Check your appearance. Hopefully you don’t look like Gary Busey.
  2. Open the door, step partially out and close the door partially behind you.
  3. Confirm to the police who you are and listen to what they say. Be polite, but don’t be a boot licker.
  4. If they ask you to do something like turn down your stereo, say that you will.
  5. If they ask you to answer questions about any criminal matters, tell them that you could never discuss a criminal matter without your lawyer present.
  6. If they ask to come inside, tell them that you cannot allow that without a warrant.
  7. Regardless of what they say or ask you to do, tell them that you understand that they are just doing their jobs, but that you are busy and would like to return inside.
  8. Ask if you are free to go. Assuming they say yes, say goodbye, go inside and gently lock the door behind you. (Don’t be an ass and slam the door.)

Assuming you can follow these directions, you will avoid giving away the keys to your castle.

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What is a California Declaration of Factual Innocence?

Posted in Criminal Defense
, 20
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In other words, if you are falsely accused of a crime, how do you get it off your record?

Sometimes completely innocent people are arrested and the charges are later dropped. But even when charges are dismissed, arrest records linger. When a background check is run, the arrest record can cost the wrongly accused a job or otherwise interfere with their life in a variety of ways.

Under California Penal Code Section 851.8, an attorney can make a motion for a declaration of factual innocence and an order for the sealing and destruction of arrest records. Such a motion will be granted if the trial court finds “that no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made.”

An 851.8 motion differs from a motion for expungement. In the case of an expungement, relief is granted despite the fact that a person was convicted of a crime. For a finding of factual innocence, relief is granted because the person should have never been arrested in the first place.

The arrestee bears the preliminary burden of establishing that no reasonable cause exists to believe the arrestee committed the offenses. Whether “no reasonable cause existed” is an objective question measured by an external standard–whether a person of ordinary care and prudence would believe or conscientiously entertain an honest and strong suspicion that the person arrested is guilty of the crimes charged.

To satisfy this burden of proof, the defendant is entitled to present evidence, including live testimony by percipient witnesses.  Facts disclosed subsequent to arrest may establish factual innocence.

A petition for declaration of factual innocence and destruction of arrest records is something that you must not delay in filing. Unless an exception is granted, an 851.8 motion can only be filed up to two years from the date of the arrest or filing of the accusatory pleading, whichever is later. The two year restriction may be waived, but only upon a showing of good cause by the petitioner and in the absence of prejudice.

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What’s the Difference Between a Frisk and a Search?

Posted in Criminal Defense, Real Life
, 20
1 Comment »

This is a common question and it goes along with another great question: “What’s the difference between reasonable suspicion and probable cause?” Let’s start with that question and then return to the first:

 

Reasonable suspicion: an objectively justifiable suspicion that is based on specific facts or circumstances and that justifies stopping and sometimes searching  a person thought to be involved in criminal activity at the time. A reasonable suspicion is more than a mere hunch.

Probable cause: a reasonable belief that a person has committed a crime. To determine whether probable cause exists, you ask whether facts and circumstances within the officer’s knowledge are sufficient to warrant a prudent person to believe a suspect has committed, is committing, or is about to commit a crime.

. . .

Once reasonable suspicion and probable cause make sense, you’re ready to unwrap the difference between a pat down or “frisk” (also known as a Terry Stop) and a full search.

Frisk: When a police officer has a reasonable suspicion that you have committed a crime, he may pat down your clothes to feel for weapons or drugs. If they find either, they may then use that evidence to form probable cause and arrest you. If they do not find weapons or drugs and you do not do anything else to give them probable cause, they must release you. The frisk came about from a 1968 U.S. Supreme Court case called Terry v. Ohio.

Search: By contrast, a search is far from a mere pat down. When a police officer has probable cause that you committed, are committing, or are about to commit a crime, they have the right to arrest you, detain you and search you. Anything that they find can be used against you as long as the probable cause was ultimately valid. Police are allowed to go to great lengths to search you, especially if they think you’re hiding drugs. There is a long line of cases saying cavity searches are A-OK.

If you have recently been arrested, your Constitutional rights against unlawful search and seizure may have been violated. If you have questions about search and seizure law, contact Beahm Law at 415-493-8677 anytime.

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