Legal Question in Criminal Law in California
I was recently arrested for possesion of a controlled substance in Newport Beach CA following a traffic stop for speeding. The officer approached the car and asked for the standard documents. I gave her the reg., ins., and ID. She returned to the car rather quickly and asked if she could search the vehicle at which point I said absolutely not. She then asked if I was on parole or probation which I replied no or if I had been arrested before. I asked what pertinence does that have to the stop and said I was not willing to answer that. She stated they could look it up and I told them to go ahead my arrest was out of state. Very quickly she came to the drivers door which I had locked and attempted to open it. I rolled the window down slightly and she told me to unlock the door and exit. I did so I was walked back to the Police Car and searched without my consent. I protested the search but did not physically resist they conducted the search of my person and found nothing besides a debit card. They then asked me to sit on the curb. I asked why was I stopped and the officer could not seem to remember. I was then asked by a male officer if my car could be searched again I said No. He said that answer makes us suspicious you many be conducting criminal activity. I told him was under time constraints and thats why I refused. They then informed me they were going to call in the Drug Dog and I should let them search it now. I again said no. The drug dog arrived 20min later. The drug dog officer said he was going to walk the dog around the car and if the dog scratches at the car it will damage the car and I should let the dog in freely. I said no the dog could not enter freely and I am not consenting to allowing the dog walk around the car. He then looked in the car to see Fresh Fast Food and told me the dog was more than likely going to hit on the odor. He asked if he could lean into the car and remove it at which point I said you may only lean in to remove the FF and nothing else. While he leaned in the car I was sitting on the pavement 20ft or so away in an officer instructed position. The officer walked the dog around the car and the dog hit on the left driver door. They then searched the car found the controlled substance and placed me under arrest. I have yet to receive and traffic ticket for the violation i was supposedly pulled over for. In interesting note regarding this stop is the female officer was in training. My thoughts are that I was used for training op and they hit the lotto. Do I have any illegal search and seizure possibilities?
3 Answers from Attorneys
You are the only LawGuru poster out of the last 50 or so with a working brain. I salute you, and so do the rest of the attorneys here, for refusing to consent to a search. So what "controlled substance" and how much? Based on the facts you've stated yes, the search and seizure was illegal. As I'm sure you are aware, however, the right to exclude evidence resulting from an illegal search is only as good as your ability to bring a motion to suppress the evidence. But maybe your case will be a DA reject. Please feel free to call me anytime at 310-776-7500.
The simply answer to your question is: Yes you have illegal search and seizure possibilities. You absolutely did the right thing in not consenting to the officers request to search your car. If we all had clients that were not afraid to consent to whatever the officers requested, a lot less people would be making deals and we would be going to court more often.
The problem you will have is the same problem we, as defense attorneys, encounter everyday. The Police report will not be in your favor. The officer will say you consented to the search or come up with something to give them the reason for the search. However, there are many things on your side, including the length of the stop. The only area that may present a problem is where the officer had permission to reach inside and get the Fast Food. Generally, the courts will find that any permission is permission to search. However, the facts as you have explained them are in your favor. I strongly suggest you get an private attorney immediately. Although a lot of public defenders are excellent at these arguments, they are all overworked. I suggest that you have a private attorney for the suppression issues that will surely be argued. A very strong argument can be made that the entire case will determined on the outcome of the suppression hearing. If money is an issue in hiring an attorney I would suggest using a private attorney for the suppression motion at the very least. If the motion goes in your favor the case may be dropped. However, even if the suppression motion does not go in your favor, a good attorney will still attack the search during the trial. They may have some hard objections to get through, but they will still try. Public defenders are excellent and they are generally very good attorneys but they are limited on the amount of time they have to give each case. If your finances only permit a public defender, do not worry because they are good attorneys.
In my opinion the DA's office will probably file charges against you. So I would strongly suggest you start working on getting legal representation.
The answer provided does not create an attorney-client relationship and has not been given as legal advice. There is no attorney-client privilege attached as a result of the question or the answer, and the answer should not be relied upon as legal advice. The answer given is based upon general principles of law and is not based upon the facts of your specific matter. It is impossible using this type of public forum to ascertain the necessary information to give legal advice.
Good luck,
Brian McGinity
Your stated facts will constitute a defense and grounds for evidence suppression motions, based upon claims of improper search and seizure. You should understand that the police report[s] will be quite 'well written' and present a justification for whatever they did. It always becomes a question of 'he said' versus 'she said'. If you're serious about getting legal counsel to effectively handle your defense, feel free to contact me.
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