Legal Question in Criminal Law in California

My husband was arrested for "suspucion of being under the influence" (no driving involved) after the police FOUND NOTHING as a result of a thorough CANINE SEARCH (WITHOUT WARRANT, CONSENT, OR PROBABLE CAUSE) OF BOTH OUR VEHICLE AND OUR RV (HOME), which was parked in a Home Depot parking lot with permission from the night manager. My husband is not on parole or probation. Police did not administer a field sobriety test or a breathalyzer. They did not run his license to our knowledge. (They never asked for my license.) He is on psychiatric medicine under doc care, drinks minimally, and does not do illegal drugs. ... After the dogs and cops found nothing during their search and we had both been 110% coorperative answering their questions and maintaining innocence through unyielding accusations of drug use, the cops placed him in handcuffs and told him to tell them "the truth" by their car, at which point I began to demand to know what crime he had committed but received no answer. *** In handcuffs unable to move, my husband was asked a litany of questions about his alleged drug-use and their suspicions. HE WAS NOT READ HIS MIRANDA RIGHTS AT ANY POINT ON THE SCENE even though he was simotaneously being interrogated about the alleged crime and in custodial care (without freedom to leave). He consistently and truthfully denied the accusations. It was not until the the cops had taken him to their precinct and were in the middle of a thorough STRIP SEARCH (still nothing found) that he was read his rights. He was charged with 1150(A)HS, booked, and then placed behind bars for the night, released early next day.

He has arraignment soon.

1. What should we do? His future employment opportunities and his personal affairs will be gravely impacted by this unwarranted arrest. We were told they don't need evidence to prove their case!! The sentence carries up to a year jailtime and 5 years probation.

2. The canine dog unit searched our RV first and extensively. Yet, we had been sitting in our vehicle parked next to it when approached by the police. The RV is mobile but at that time was not operable without at least 60 minutes of preparation of batteries etc. It functioned as our home. We did not give them permission to enter our RV and they did not have a warrant. Neither of us are on probation or parole. Was this search lawful?


Asked on 1/27/16, 2:37 am

2 Answers from Attorneys
Barney Gibbs Law Office of Barney B. Gibbs

You need to retain a criminal defense attorney to review the stop.Call 7148389019

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Answered on 1/27/16, 7:00 am
Edward Hoffman Law Offices of Edward A. Hoffman

In no particular order:

1. The police probably should have given your husband Miranda warnings. But the fact that they didn't seems unlikely to help him. A Miranda violation doesn't invalidate an arrest or the resulting charges. It only means that answers your husband gave to questions after he should have been Mirandized can't be used as evidence against him at trial. It doesn't sound like any of those answers would help the prosecutor, so losing out on them likely won't weaken her case.

2. The prosecutor will definitely need evidence to prove her case, but perhaps not the kind of evidence you have in mind. What she must prove is that your husband was under the influence of a drug at a particular time. She does not have to prove that he possessed drugs or paraphernalia at the time of his arrest. Such evidence would have strengthened the prosecutor's case, but it's not essential.

3. The police and the prosecutor almost certainly have evidence against your husband. It's extremely rare for someone to be arrested and charged with a crime when there's no evidence he committed it. That doesn't mean your husband is guilty, and it doesn't mean he will be convicted if he goes to trial. But the case against him must be stronger than you realize.

4. Whether the search was legal is not clear from the information you've given us. Here again, though, even if the police acted improperly it likely won't help your husband very much. After all, you say they didn't find anything. The fruits of an illegal search can't be used as evidence against the person(s) whose rights were violated, but that doesn't matter where the search turned out to be fruitless.

5. Note, though, that the search may have yielded some useful evidence even if you don't realize it. For example, if a witness says he saw your husband using drugs while wearing a particular type of jacket, evidence that such a jacket was in your RV would help build a case against him. If the search was illegal, that evidence should be suppressed at trial.

5. As Mr. Gibbs has already said, your husband needs a competent lawyer ASAP. If he can't afford to hire one, the court will appoint one for him at public expense.

Good luck.

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Answered on 1/27/16, 11:26 am


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