Legal Question in Criminal Law in California

Re: arrested

I've read R. Miller's reply and intend only to supplement his response.

It's unfortunate that we don't all carry recorders to take down exactly what the arresting officer says.

The P. C. was because the officer can claim the windshield was obstructed by the flag. Even if it wasn't the officer probably has the right to stop you and check whether or not the view was obstructed.

You might try to have the pipe checked to see if your finger prints are on the pipe. The police will not do this. It might prove you innocent and that's not their job. That's now your job. All this of course costs money.

There's also some question that drug paraphernalia is covered by the new sentencing procedure under Prop 36. Most of the D. A.s are going along with counseling for 1st and 2nd time drug offense. Even though drug paraphernalia was not covered in the Proposition.

Re: arrested

As Robert Miller said, you probably have an illegal search and seizure, but you will need to affirmatively challenge it, usually with a lawyer. I disagree with Victor Hobbs completely. You don't say where the incident occurred, but if you are in Los Angeles, don't hesitate to contact me for a free consultation. Steve Mandell (310) 393 0639

Re: arrested

We are dealing with search and siezure issue. Was the item in a plain view? If yes, then the officer could argue that he had the probable cause and pass the treshold.

Re: arrested

It may be found to be legal as there was an objective reason for the stop. Best to defend it aggressively and argue that it was not. Please call me directly at (619) 222-3504.

Re: arrested

Thank you for your question. You are correct in stating that a criminal search has to meet the standards for probable cause. The statement in the police report may be different from the reason the police gave you at the time they stopped you. Also, while it generally is not illegal to have a "mini flag" hanging from your windshield, it may be a violation of the Vehicle Code to drive with an obstruction, and depending upon the size and position of the miniflag, it may have obstructed the view. You normally will want to have your attorney ask the officer on the stand during a motion hearing if he actually sat in your car and saw if the view was obstructed.

At any rate, the judge won't hear the issue of whether or not the stop was probable cause unless and until you bring it in a written motion and set a motion date for the hearing on the motion. You should have an attorney for this, if you want to pursue such a motion. If you have any other questions, please email, write, or call me at 1-877-568-2977. Thanks.