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    Know and Protect Your Rights in a Criminal Defense Matter




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      Know and Protect Your Rights in a Criminal Defense Matter







          Reasonable Suspicion and The Fourth Amendment

          The Fourth Amendment protects you from unreasonable search and seizures by law enforcement. In California, vehicle searches are very common, but many people fail to realize what constitutes an illegal search by law enforcement. Therefore, it is important to understand the Fourth Amendment and what rights citizens in California have. In this article, we are going to look specifically at searches related to vehicles.

          In most cases, police or law enforcement need a search warrant to perform a search. However, there are specific instances where that is not necessary. One example is a vehicle search. Instead, officers can use probable cause or reasonable suspicion in order to search your vehicle.

          Understanding the Basics of a Legal Search

          The Fourth Amendment’s rule against unreasonable searches and seizures mean the police cannot search you or your vehicle unless one of the following is true.

          • They’ve obtained a search warrant from a judge
          • Search falls within one of a number of exceptions to the warrant requirement

          In most routine vehicle searches, the police do not obtain a warrant but rather rely on one of the exceptions to that requirement. Many of these exceptions have been found to serve as probable cause to suspect a crime is being committed.

          Traffic Stops and Subsequent Searches

          The Fourth Amendment protects your privacy generally, so an officer can’t simply pull a driver over for no reason. Instead, the officer must be able to articulate specific facts that led him to suspect that a crime was taking place. These facts are frequently referred to as probable cause or reasonable suspicion. There is vast case law laying out many different situations that would constitute probable cause to legally justify a traffic stop and potentially a search of your vehicle without a warrant.

          Police may justify a stop of your vehicle based on legal violations they can see in plain view. For example, like expired registration tags or infractions committed while driving. Once your vehicle stopped, they may justify a search if they observe evidence of contraband in your vehicle like guns or drugs. They can also search your vehicle if one of the occupants is on parole or probation under certain circumstances. Police also frequently conduct searches incident to arrest or search your entire vehicle once it’s been impounded.

          Contact the Fourth Amendment Lawyers at The Nieves Law Firm

          As you can see, the law of search and seizure is complex and requires a talented and experienced attorney. If you feel your privacy rights were violated during a police search of your vehicle in the Bay Area or Sacramento, call us for a consultation and we can assess whether you have a motion to suppress the evidence against you. A successful motion to suppress could lead to a dismissal in some cases, freeing you from conviction or punishment.

          The 4th Amendment and Errors in Executing a Search Warrant

          Search warrants are common in many drug cases throughout California. However, there are strict rules and regulations regarding the execution of a search warrant. Failure by law enforcement to execute a search warrant properly could lead to evidence being withheld from court and the possibility of your case getting dismissed. If you are facing criminal charges related to a search by police, it is important that you understand your rights related to unconstitutional searches and seizures.

          Often, law enforcement might try to execute a search warrant and learn as they’re executing the search warrant that the circumstances are a little different than they had originally thought. In most cases involving search warrants, criminal defense attorneys are not attacking the warrant itself but instead are looking at how the police officers go about the execution of the search warrant.

          A Supreme Court Example

          For example, a team of police officers goes to a location to execute a search. The search warrant allows them to search the third-floor apartment of a suspect. The police officers go up to the third floor, enter, and then start searching. In this example, they find drugs and drug paraphernalia. Once they are inside the unit, they realize that that there are two units on the third floor not just one and they went into the wrong unit for the wrong person. They then go into the other unit and do the search that the warrant had approved. However, they still collect all that evidence, drugs, and paraphernalia from the first apartment. Then they arrest that other person for the drug possession and paraphernalia offenses.

          This example is actually a case that went before the Supreme Court. The Supreme Court looked at whether the evidence should have been excluded. Specifically, whether the police officers had violated the Fourth Amendment by doing that search of the two units rather than focusing on the one unit that the warrant specified. The Supreme Court ultimately decided that the police officers’ actions in that situation were reasonable. This was due to the warrant allowing a search of the third floor of the person’s apartment, which they believed was the third floor.

          The police officers didn’t know that there were two units on the third floor rather than just one and found that the search was reasonable. They weren’t going to penalize the prosecution and the police officers by suppressing the evidence just because it turned out they had learned something during the search that they didn’t know beforehand.

          However, if we change the facts, the evidence may have been suppressed. For example, let’s say that the police officers were in an apartment building and the warrant just says you can search the suspect’s apartment on the third floor or the suspect’s apartment, which is on the third floor. Then the police officers reach the third floor, and they see multiple doors with multiple unit numbers. In this situation, it would be unreasonable for a police officer to just go into a random unit and start searching around.

          Another Example from the Supreme Court

          Here’s another example from the Supreme Court. In this example, police officers get a warrant to search somebody’s home and they serve the warrant. They go into the home and learn that the person doesn’t even live there anymore. Now, a completely unrelated person lives there. The previous person that they were looking for had moved out three months prior, but the police went in and detained the couple who were living there. Police officers did a sweep of the area to see whether anybody else was there. It turned out there wasn’t anyone else in the house and they had clearly made a mistake and left.

          This situation ended up in front of the Supreme Court and what the Supreme Court ultimately decided is that the police officer’s conduct was reasonable. The police officers didn’t know that the person had moved and once they had learned of their mistake, they ended the search. They didn’t continue prying into the people’s individual privacy interests but rather left once learning their mistake.

          There are facts that we can add to that scenario that would make the situation more unreasonable. Let’s say that the police officers, even after they learned of their mistake, continued to search or detain the people for an unnecessarily long amount of time. These kinds of facts, if added, would then make the situation more unreasonable and give a stronger argument for showing that something unreasonable did happen.

          These are two examples of how errors when a search warrant is being executed could ultimately be found to be reasonable errors or under different facts could be unreasonable. It all depends on the facts.

          Contact The Nieves Law Firm

          If these scenarios sound like something you are dealing with in the Bay Area, The Nieves Law Firm may be able to help. We have experience with a variety of drug-related cases involving search warrants. Contact us today to schedule a free consultation with a member of our team.

          What is a Confidential Informant?

          Whether you have watched a crime-based docuseries or read news related to a drug bust, you have likely heard the term “confidential informant.” While this term is used quite frequently in the legal field, people often have misconceptions about confidential informants. Few people really understand what information they are entitled to know about a confidential informant or when their identity may be disclosed. So, we wanted to lay out specific details about confidential informants, especially as they relate to drug conspiracy cases.

          A confidential informant is somebody that the police department uses in a case while keeping that person’s identity a secret throughout the police report. An example would be if you are arrested and charged with a drug offense and the police explain, “We found the person that we arrested through information obtained from a confidential informant.”

          Can I Find Out who the Confidential Informant is?

          If you are arrested due to information provided by a confidential informant, the first thing you are probably going ask your lawyer is, “Who’s this confidential informant? How is it that they could keep their name secret? I want to know who they are.” In some instances, this person has had multiple contacts with the defendant prior to them being arrested. So, it’s not just one day or one tip. Regarding your case, you’re going to want to know what this person said to the police. In layman terms, the law basically says if the confidential informant is somebody who is “a finger pointer,” you don’t get to find out who they are. If they’re a little bit more involved than simply pointing the finger, you may be entitled to know their identity.

          The Role the Information Provided by the Confidential Informant Plays in their Identity being Shared

          Depending on the type of case, a confidential informant can share several details to law enforcement. In a drug case or a weapons case, a confidential informant may be somebody who has purchased drugs from a defendant on a prior occasion. The confidential informant then goes to the police and states that they have purchased drugs from the defendant, providing them the exact location of the sale.

          If the police take the information shared with them and see a person that matches the description given and is doing the kinds of things that the confidential informant described, then the police have an independent reason to arrest that person. If they observe criminal actions and the confidential informant merely just pointed them in the direction of the defendant, you are not likely to find out the identity of that person.

          However, it’s a little bit different if the confidential informant says “Hey, I’ve bought drugs from this person in the past and I’ll go and buy drugs from them now so you can arrest them.” If the confidential informant goes into the house and engages in a transaction while the police remain outside, then law enforcement may be forced to share the confidential informant’s identity. This scenario is different than the first one because the police didn’t witness a crime, but instead are making the arrest solely on the word of the confidential informant. In this scenario, the district attorney (DA) and the police would have to disclose the name of the confidential informant.

          Why do Confidential Informants Provide Police with Information?

          Confidential informants, sometimes referred to as CI by the police, are often paid by the police for the information that they give to them. Some of these people may be facing charges of their own. For example, they may have been arrested by the cops for engaging in criminal behavior and they turn to the police, offering to give them information and cooperate in exchange for payment or staying out of trouble. It’s no secret that they get paid in certain instances for the information they provide.

          If they are someone that is actively involved as a material witness, they’re going to have their identities turned over and your lawyer will bring a motion to disclose the identity of the confidential informant. If the judge agrees with your lawyer and states the police or the district attorney must divulge or reveal the name of that confidential informant, there’s a very good chance that the district attorney may dismiss the case altogether. This happens in cases where the police department does not want to reveal this person’s identity in fear of jeopardizing their safety, as well as not wanting to jeopardize future operations with the confidential informant.

          How Criminal Defense Attorneys can Utilize the Confidential Informant’s Identity in Your Defense

          As an attorney, it can sometimes be beneficial to pursue the identity of the confidential informant through the legal process.  If there’s a case pending against you that involves the use of confidential informant, it may be worthwhile for your defense attorney to bring a motion to disclose that person’s name because it may result in the dismissal of the case. However, if it’s a case where the informant is not a material witness, they’re just the “finger pointer,” the judge may not order that their identity be disclosed.

          In criminal cases, you have an absolute right to know things about the people who are witnesses against you. This tactic can be used by defense attorneys in cases where the confidential informant has a material role in the case against you.

          The Judge will Decide if Their Identity Should be Disclosed

          When you file this motion, the judge will meet with the police officer and ask them certain questions about the informant such as, “What involvement do they have? How much are they getting paid?” and so on. The judge will ultimately decide whether it is pertinent to reveal the confidential informant’s identity. In some cases, not always but most cases, the police department and the district attorney’s office will more than likely dismiss the case rather than disclose the identity of an informant. This is a result of wanting to keep working with this person (CI). Also, if they have bigger cases that the informant has brought them information about, they may be more concerned about how this could impact that case

          Contact The Nieves Law Firm for Your Bay Area Defense

          If you are facing criminal charges in the Bay Area related to the use of a confidential informant, we would be happy to talk to you about your defense options. Contact our team today to schedule a free consultation and learn more about how we could help you fight your charges.

          10 Tips for California Drivers

          You have specific rights on the roadway when driving your vehicle. However, law enforcement doesn’t always respect your constitutional rights. So, it is important that you understand your legal rights when driving. In this article, we outline 10 tips for California drivers.

          1. Officers must have “reasonable suspicion” to pull you over

          • An officer needs to be able to point to a crime or traffic violation that has taken place to pull you over.

          2. You can ask officers if you are “free to go”

          • If an officer says you are not free to go but you haven’t been arrested yet then you are being “detained.”

          3. Dealer plates are illegal

          • As of January 2019 – dealer tags with advertising that do not have a license plate number on it are illegal and will be a sufficient basis for a vehicle stop.

          4. An officer can ask you to produce identifying information

          • You must show your drivers license, registration and proof of insurance if you are asked for these documents.

          5. Remain calm.

          • Be professional – even if upset – aim to recall the events with detail rather than engaging in verbal combat with the officer
          • Once you have parked the car, turn the engine off. Rest your hands in clear sight, preferably on the steering wheel, and with the interior light turned on if it is nighttime.

          6. You have the right to ask why you were pulled over.

          • Police officers are usually the ones who ask you if you know why you are being pulled over. Simply ask them what the reason is rather than speculating.

          7. Do not try to talk your way out of the situation.

          • You are better off remaining silent if the police officer finds that you have committed a crime. Anything you say can be used against you.

          8. You do not have to take field sobriety or breathalyzer tests unless you are on probation for a DUI.

          • These include eye tests, one-leg stand, walk and turn, finger-to-nose tests and preliminary alcohol screening tests.

          9. You do not have to consent to a search of your vehicle and the police can only search it if they have probable cause.

          • The Fourth Amendment protects citizens from unreasonable search and seizure by the police.

          10. Stay up to date with maintenance on your vehicle.

          • Something as simple as a tail light being out can lead to a traffic stop with unpredictable outcomes. Check your brake lights, tail lights, indicator lights, and tires regularly to avoid traffic stops for maintenance violations.

          If you have any questions about whether your arrest stemmed from an improper stop or if you were subjected to an unreasonable search and seizure, The Nieves Law Firm can help you. Please contact us at (510)-588-8580 to schedule a free consultation with an attorney.

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