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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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 Suppression Hearing?

Posted in Criminal Defense
, 20
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The suppression hearing can make or break your case. It is an opportunity to have the evidence against your thrown out. Sound good? There’s only one problem: the odds are stacked against you.

For example, perhaps you’ve heard of the rule against hearsay. Well, at the suppression hearing, hearsay is admissible. Generally, the rules of evidence do not apply, which is bad for you.

In order to get the keep evidence out at the suppression hearing, your attorney will argue that you were subject to an illegal search and seizure under the Fourth Amendment of the U.S. Constitution. Chances are that the prosecution will have a different perspective on the matter. Take a DUI suppression hearing, for example. If the police screwed up really bad and are not willing to lie to cover their tracks, you’re in luck. You might wind up with the evidence against you declared inadmissible, which makes convicting you of DUI impossible.

It’s often said that a DUI case is won or lost at the DUI suppression hearing. That isn’t necessarily always true, but it isn’t far from the truth. Even if the evidence comes in, it is still possible to win the case or make a plea deal. However, if the evidence is kept out due to an illegal search and seizure, it’s pretty much game over for the prosecution and you win the case right there.

But don’t count on having the evidence dismissed. The protection against illegal search and seizure of the Fourth Amendment doesn’t amount to much, especially outside your home. It’s full of exceptions, and chances are pretty good that whatever they seized from you is coming in as evidence.

. . .

This all serves as yet another reminder as to why you should remain silent when you’re arrested. Here’s why:

Let’s say that you are at your house and you have some stolen goods in the garage. For whatever reason the police come into your garage without a warrant, discover the stolen goods and arrest you. While you are at the station they give you the old: “If you cooperate with us, we’ll make it easier on you,” routine. So you go ahead and tell them, yes, you and your friends stole this stuff last week from the neighbor.

Well guess what? If you hadn’t said anything, that evidence was almost certainly going to be thrown out because the police violated your 4th Amendment rights against illegal search and seizure. But, you blew the whole thing when you confessed! Now they don’t need that evidence anymore, because your confession is all they need to sink you.

In sum, the suppression hearing is an important opportunity to have a judge look at the evidence against you and determine whether it is allowed at trial. It’s not something you want to bank on unless the police violated your rights. But even then it will only help if you are wise enough to invoke your right to remain silent. For more information on suppression hearings and how an attorney can protect your evidentiary rights, call Beahm Law at 415.493.8677.

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What Information Am I Required to Provide Police When Arrested?

Posted in Criminal Defense, Real Life, Tactics
, 20
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As attorneys, we do our best to provide clear, sound and non-contradictory advice to clients. One of the most commonly repeated (and constantly ignored) pieces of advice is: “Don’t talk to the police. Take advantage of your constitutional right to remain silent.”

 

However, in the real world, things can get awfully confusing out there. Let’s say your out and about on a Saturday night, misbehaving in some shape or form. The next thing you know, you’re face to face with the police, put in handcuffs and suddenly asked a bunch of questions. Can you literally just sit there with your mouth shut, and simply assert your right to remain silent while they shout at you and ask you questions?

For the most part, yes. And in fact the police must stop asking you questions once you assert your right to counsel and right to remain silent. But there are a few pieces of information you are required to provide the police, upon request, during an arrest. Withholding this information has virtually no effect, besides making the police angry, so upon request, go ahead and provide them with:

  • Your name
  • Your birth date
  • Your address
  • Your social security number

That’s it. Beyond that, simply say, “I assert my right to remain silent and my right to an attorney. Please do not ask me any more questions.” When you get your phone call, call us at 415.493.8677 and we’ll take it from there.

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Should You Talk to The Police? (Hint: No.)

Posted in Criminal Defense
, 20
1 Comment »

Do you know where the vast majority of evidence against criminal defendants comes from? The defendants themselves, either through consent to search, statements made to police, or confessions. It has been said time and time again, but let me repeat it: do not talk to the police. It’s not that police are bad people. In fact, quite the contrary, most of them are doing their jobs the best that they can. But make no mistake about it, when you are involved with the police and prosecution in a criminal matter, you are adversaries. They are trained to break you down and get you to say something you will regret or give up your rights. No matter how educated you are or how innocent you believe yourself to be, the words that come out of your mouth are going to wind up being used against you.

You have the right not to help the government build a case against you. (“No person…shall be compelled in any criminal case to be a witness against himself.” -5th Amendment to U.S. Constitution.) You have the right to remain silent and to speak to an attorney. Use those rights.

You have no idea how many people talk to the police because they think either, (a) “I’m too smart for them to get me,” or (b) “I have nothing to hide.”

Wrong and wrong. As soon as you open your mouth, you make things harder for yourself. Much harder. Unless your goal is to help your attorney pay for his kids college fund, watch the above video of James Duane, professor at Regent Law School. Remember, innocent or not, do not speak with the police. It won’t help your situation, it will be uncomfortable, and the coffee is usually quite disappointing.

Professor Duane gives an impressive presentation in the video, complete with a list of reasons why you should never talk to the police. In closing, here are a few highlights:

Reasons not to talk to the police or consent to a search:

  1. There is no way that it can help you.
  2. Even if you are innocent, and you only tell the truth, and don’t say anything that is false, you will always give the police some kind of information that they can use against you.
  3. Even if you are innocent and only tell the truth and do not say anything incriminating and the entire interview is videotaped, your truthful answers can be used to crucify you if the police have any evidence that anything you said was false, even if it was actually true!
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