As the Defense Attorney, What Police Missteps Can You Use to Challenge the Charges?
We’re always looking for different things that may have been charged improperly or found improperly. If you’re a passenger in a car with drugs found in a common area, they can charge you and everyone else in the car. I’m handling a case right now involving a kilo of cocaine found in a car with three guys inside. The state can’t prove whose it is, so they’ve charged all three of them. One thing I can do as the defense attorney is challenge the overreaching affidavit that’s part of the search warrant. A lot of these affidavits have deficiencies in them. A police officer might get a tip from someone about a person distributing drugs, but they need more than that; they need proof that it’s actually happening. If that proof is missing, we can challenge it.
An inaccurate search warrant is another thing we’ll look for. These search warrants have to be very specific to avoid illegal searches. They have to have the right street number on them and an identifier, such as the color of the home, to ensure there’s no question of which residence is to be searched. That might seem simple when you go into a residential area with clearly marked homes, but when you go into certain city areas, you might discover that apartments C and D in building 14 don’t have letters on their doors. In that case, you have to describe what this door looks like versus what that door looks like. They can’t just assume that it goes A, B, C, and D in order; otherwise, they’re inaccurate search warrants. We always look for ones that don’t accurately describe the area or the place to be searched or that make mistakes about which garage belongs to which property.
We can also challenge the government on improper interviews. Did they give the required Fifth Amendment Miranda warnings? Did they tell the client, “You don’t have to talk to us. You have the right to have your lawyer present”? Police are very quick to say that a person in custody who has not been given Miranda is only detained. We can test this by saying, “If he’s free to leave, then he can get up and thank you for sitting with him. He’s going to take off now.” If the answer is “No, he’s not free to leave,” then he’s in custody. And if he’s in custody, that triggers a Miranda warning because you have to be given your Miranda warnings.
Here’s something these officers often do: They get you to confess or admit to something and then read you your Miranda warnings. They ask you to say it again. Well, you might figure they already know because you’ve already said it before you got your warnings, so now you’re repeating it after the warning. Again, if you’re not free to leave, then you’re in custody and you need to be given Miranda warnings. That’s how we can challenge the improper interview.
More and more often, law enforcement officers are using consent in order to search your vehicle or your house or to test your blood or urine. If you’re stopped on the road under suspicion of drunk driving, there are certain things that you have to do (one of them is a Breathalyzer or an Alcotest), but there are certain things you do not have to do. You don’t have to give them consent to take urine. You don’t have to give them consent to take blood. You don’t have to consent to do their roadside tests, such as standing on one foot and holding your arms out like a bird. You don’t have to do any of that. Consent needs to be free and voluntary. There should be no threat involved. Free and voluntary even means there should not be promises involved. “We’re going to get a warrant if you don’t consent to this.” That’s not free and voluntary; that’s a threat to get a warrant. Maybe they can get a warrant, maybe they can’t, but they’re not allowed to tell you that they definitely can because that’s an application to a judge, not a foregone conclusion.
A common threat they’ll use in order to get consent is calling DCP&P, the old Division of Youth & Family Services, the ones who will come and take people’s kids away. If they say they’ll call DCP&P on you if you don’t consent to them searching your house, that’s also not a free and voluntary consent. Give consent and we’ll let you go. Give consent or we’ll lock up your [name of family member]. That’s not free and voluntary. When police threaten to take away your kid or lock up your mom to get your consent, it’s improper and something a lawyer can look into.
Defense lawyers also look for illegal searches. It used to be my job to write search and seizure briefs under the Fourth Amendment to keep every search in Camden County legal, so I learned that law well. Police officers are doing illegal searches without probable cause. They may say it’s under an exception. One of the exceptions is the plain view exception, but they have to be able to say they’re legally in the place where they see something in plain view. If a cop opens your trunk when he isn’t allowed to and sees illegal drugs, he’s not in a place that he’s legally allowed to be. It’s different than if he is standing outside your car, looks in the window, and sees a pile of cocaine on your dashboard. He is in a place he’s lawfully allowed to be (outside your property). Let’s say you call the police because somebody’s having a heart attack in your home, and the cop comes to help the person having a heart attack and sees 15 marijuana plants. He is in an area he’s legally allowed to be; you asked him to come in to help. If he’s in that area legally and he sees something illegal, he’s allowed to search it. Similarly, if you get into an argument with your spouse and a cop comes for a domestic dispute, he’s in your house legally, should he see something.
It also has to be something that’s immediately evident to be illegal material. Nowadays, if you see pot there, there’s a question regarding whether that’s illegal anymore. That doesn’t give you the right to search the car. If he saw a straw, for instance, a straw is not an object that’s immediately illegal. It can be used to do drugs, but it doesn’t necessarily qualify to the officer as immediately illegal. The final thing that applies to the plain view exception is that it has to be unexpected. The officer can’t go in your house knowing what they’re looking for and use that as an excuse to look there. These are some of the issues that can be challenged that my background in Fourth Amendment Search and Seizure helps me detect.
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