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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How Do I Fight a California Drug Possession Arrest?

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

When a person is arrested on drug possession charges in California, more than anything, they want to know what their options are. Fortunately, in most cases, there are a substantial number of ways to fight the charges and minimize the damage, including contesting the evidence at a suppression hearing and requesting alternative punishments, such as drug treatment programs.

Even when a client is supposedly caught “red handed,” drug possession cases can be fought and won. That’s because the police and their investigators often make critical mistakes. For example, the police may have violated your Fourth Amendment rights against illegal search and seizure. Or they may have lied in order to get a warrant. Perhaps they relied on a questionable confidential informant. Another common mistake is when police arrest people for possession of drugs despite the fact that no evidence exists that the drugs belong to them.

Regardless of your situation, the important thing to remember is to relax and step back for a moment. You’re in a bind that could have life-long repercussions. The best thing you can do is to hire skilled legal counsel to aggressively contest the allegations of the police and district attorney’s office. If the police made any mistakes, we can identify them and use them to put pressure on the prosecution to drop the case or reduce the charges. We also frequently make use of the motion to suppress evidence–when successful, this frequently results in the entire case being dismissed at the suppression hearing.

If you have been arrested on drug possession charges, the police and prosecution are already building their case against you and they have substantial resources. However, with an aggressive attorney on your side, you can turn the situation around and come out clean.

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

Posted in Criminal Defense
, 20
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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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