May I search your car sir?

[ViRedd]

Illegal Search?
Probable Cause and Drivers

Quote:

Originally Posted by ViRedd

The potential shame can come from any number of materials, including intimate items, medical treatments, and LA Clippers memorabilia.

Heheh... Awesome.

Stikky ??
methinks so, with homel*nD securitee
good advice
Joe

..good one Vi! thanks!

HB

Great article Vi!

Here was another good one from them:

June 28, 2005

Understanding the Miranda Rights
By Ed Martinovic, Esq., and Dan Rhoads

“You have the right to remain silent.”

Those words have been popularized in television and movies, and many people recognize them as the opening of the Miranda rights. But what those rights are, and what results when police officers fail to read them to criminal suspects, are topics that are frequently misunderstood.

Before Miranda, the right against self-incrimination was never self-executing and always had to be invoked by the suspect. This invocation is what is commonly referred to as ‘pleading the Fifth.’ In Miranda, the Supreme Court shifted this burden to the police, and required them to specifically advise suspects of their right to remain silent and their right to have an attorney present during questioning. The Court ruled that all statements or confessions made in the absence of the warnings are inherently involuntary and coerced, and hence inadmissible in court.

The most common misconception regarding the warnings is that police must read them to everyone that they arrest, and that an arrest without them is somehow invalid. This is pure myth: as long as police have probable cause to believe a suspect has committed a crime, the arrest is valid.

The decision in Miranda v. Arizona essentially is that “The prosecution may not use statements . . . stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Miranda, 384 U.S. 436, 444 (1966). This means that any time a person is in custody and subject to interrogation, the police must apprise the person of his rights, or the statements are inadmissible in court.

Custody is defined as any deprivation of liberty where the person does not feel the freedom to simply walk away. It should be noted that courts generally rule that people are not in custody during routine traffic stops and other routine police encounters.

Interrogation means “questioning initiated by law enforcement officers after a person has been taken into custody or, any other police action that produces an incriminating response.”

Once these two elements exist, the police are required to read a suspect the warnings. The reason for this requirement is that “the danger of coercion resulting from the interaction of custody and official interrogation, whereby the suspect may feel compelled to speak by the fear of reprisal for remaining silent or in the hope of more lenient treatment should he confess.” Illinois v. Perkins, 496 U.S. 292 (1990).

Exceptions

Some important exceptions to Miranda have been highlighted in Supreme Court opinions.

First, once the Miranda warnings are given, any statements that the suspect makes after that point are admissible, even if they are the same statements that were made prior to the warnings. This is true because a confession made by a suspect with knowledge of his Miranda rights is not considered the product of coercive police conduct, due to the fact that the suspect is now fully aware of his rights.

Also, “[a]n undercover law enforcement officer posing as a fellow inmate need not give Miranda warnings to an incarcerated suspect before asking questions that may elicit an incriminating response.” Perkins, 496 U.S. 292. This exception exists because when a prisoner does not know that he is talking to an undercover agent, “the essential ingredients of a police dominated atmosphere and compulsion are lacking.” Id.

Know Your Rights

It is absolutely vital that suspects understand that the rights covered by the Miranda warnings can be waived, or given up, “provided the waiver is made voluntarily, knowingly, and intelligently.” Miranda, 384 U.S. at 444. People can waive their rights in any number of ways, verbally, in writing, or impliedly by making statements after the warnings are issued. Increasingly, police write a person’s confessions on forms containing pre-printed Miranda waivers at the bottom, and people often fail to notice the language on signing the confessions. Thus, it is essential that when taken into custody, people not talk to police or sign anything without an attorney present.

The upshot of Miranda is that a jury cannot know about any statements given prior to the defendant’s advisement of his Miranda rights if the suspect gives the statements in a police-dominated atmosphere. Nor can it hear any part of an interrogation that occurred after the defendant invoked the right to an attorney. See, e.g., Minnick v. Mississippi, 498 U.S. 146, 156 (1990). The fact that all police questioning must cease upon a person’s requesting an attorney is a powerful tool in resisting police interrogation. However, given the inherently coercive nature of police encounters, people are sometimes hesitant to invoke their rights for a number of reasons.

When the Supreme Court revisited Miranda, it held that “an accused . . ., having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.” Edwards v. Arizona, 451 U.S. 477, 484 (1981).

However, a suspect should never waive the right to counsel and should waive the right against self-incrimination only after conferring with an attorney. (See “True Lies or False Truths,” available at http://www.criminalattorney.com/page...onfessions.htm.) When a citizen is facing prosecution by the resources of the government, his most powerful aegis is the Constitution. Once a person waives his constitutional rights, the chances of a favorable outcome quickly diminish.

One more

January 30th, 2006

Know Your Fourth Amendment Rights: Reasonable and Unreasonable Search and Seizure.
By: Swazi Taylor, Esq. and Jay Mykytiuk

“Open up, this is the police!” This command is usually delivered with a loud pounding on your door, and usually means that police will soon be entering your home and searching your belongings. In the eyes of the law your home is your castle, but under some circumstances your rights in your residence give way to the power of law enforcement. But this power is not unlimited. The Fourth Amendment to the U.S. Constitution prohibits the police from conducting “unreasonable” searches and seizures. Determining what is reasonable can be complicated business—so complicated, in fact, that treatises have been devoted to the search and seizure issue. Although the law is complex and constantly evolving, there are several basic rules that govern when, where, and how police officers may search an individual’s home. The more familiar one is with these rules; the better-equipped one will be at identifying an illegal search.

Warrants

Absent exigent circumstances, the general rule is that police officers may only enter a person’s home with a search or arrest warrant based on probable cause. A search warrant gives the police the right to search a particular place, at a particular time, and only for particular items as approved by a judge. The warrant must clearly spell out what these items are, and generally, the police may not look for items that are not listed in the warrant. For example, if the search warrant authorizes the police to search for a rifle, police may only search places in your home that are big enough to hide a rifle. Therefore, in this example, a small bureau drawer or a jewelry box on that bureau would be out of bounds.

If the police enter a home pursuant to an arrest warrant, they may only search the areas into which the suspect might reach to obtain weapons or destroy evidence. This area is generally measured by the suspect’s wingspan.

There are circumstances, however, when police may extend a search beyond the terms of the warrant. The most significant of these circumstances is known as the “plain view” doctrine. Under the plain view doctrine, police who are lawfully searching a home may seize any items in plain view whose incriminating nature is immediately apparent. Even if the item is not listed in the warrant, if it is in plain view and obviously incriminating, police may rightfully seize it.

Knock and Announce

Generally before entering your home to serve a valid search warrant, police must knock on your door, and announce their presence, rather than simply forcing their way in. The so-called, “knock and announce” rule requires that police wait a reasonable amount of time for the resident to open the door. If you then refuse to let the officers in, they have the right to force the door open.

As is often the case with rules governing police searches and seizures, however, there are exceptions to the knock and announce rule. Police may forcibly enter your home without knocking and announcing when a more stealthy approach is required to ensure the safety of police officers or to prevent the destruction of evidence. Even when officers do knock and announce, they need only wait a few seconds before bursting in.

Warrantless Searches

Just as there are exceptions to the knock and announce rule, there are also exceptions to the warrant requirement. First, police do not need a warrant to enter and search your home if they obtain the consent of an occupant. Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants. Currently, the U.S. Supreme Court is considering what should happen when one spouse consents to a search of the house, while the other spouse does not.

Even without a search warrant and without the consent of an occupant there are still occasions when police may enter and search a home. Although there is no general emergency exception, the court will decide on a case-by-case basis whether an actual emergency existed that allowed police to conduct a warrantless search. Shots fired, screams heard, or fires emanating from inside a building have all been considered emergencies that justify searches without warrants. A federal appellate court recently ruled that the "strong aroma" of a decaying body, wafting through the open window of a dead man's house, constituted an emergency exception to the Fourth Amendment's warrant requirement. Essentially, anytime the police have a reasonable belief that and immediate search is required to protect the safety of individuals, police will be permitted to search without a warrant.

Protecting Your Rights

Although search and seizure law can be confusing and is constantly evolving, there are some basic steps you can take to protect your Fourth Amendment rights. First, remember that generally, without a warrant, police have no right to enter and search your home. If a police officer asks your permission to search your home you are under no obligation to consent. Consenting to a search automatically makes that search reasonable, and is essentially a waiver of your Fourth Amendment rights. Consequently, whatever an officer finds during such a search can be used to convict the person. Police officers are not required by law to inform you of your rights before asking you to consent to a search. In fact, police officers are trained to use their authority to get people to consent to a search.

If the police have a search warrant, they may enter your home without your consent. In this case, there are still things you can do to protect yourself. Next, ask to see the warrant. If for any reason you believe that the warrant is not valid, make your objections clear to the officer, and announce that you are not consenting to the search. But remember that it's always in your best interest to remain calm, polite, and non-confrontational. Even if you believe the search to be unreasonable, you have nothing to gain by interfering with the police officers. A person should not risk injury or a separate charge of "interfering with a police officer." After voicing your objections to the search, simply stand aside and allow a court to decide later whether the officer's actions were proper.

Most importantly, you should immediately contact a criminal attorney whenever you have been the subject of a search or seizure. In the event that the police have conducted an unreasonable search of your home, an attorney will seek to suppress the evidence discovered as a result of that search. This means that the illegally obtained evidence may not be used against you at trial. An experienced attorney will know how to protect you when your Fourth Amendment rights have been violated.

Another one, which was a good short read

July 22, 2005

Marijuana Laws Possession, Distribution, Transportation, and Cultivation

By Vince Imhoff, Esq., & Dan Rhoads

Jay gets into his car carrying a small bag of marijuana in his pocket. After driving for a few miles, his car breaks down; and Jay calls his friend Dee. Jay offers to exchange some of his marijuana for a ride back to his house, and Dee agrees. Back home, Jay prepares the marijuana by pulling the usable leaves off the stem.

In possessing marijuana and transporting it, Jay has committed two misdemeanor offenses. Jay also faces two felony counts—cultivation and possession for sale—each of which is punishable by up to 3 years in prison. Dee faces prosecution for at least 1 misdemeanor and possibly a felony. The risk of severe punishment lies in California’s anti-marijuana statutes.

Possession

Possessing not more than 28.5 grams of marijuana is a misdemeanor punishable by a fine of not more than $100. Cal. Health & Safety Code