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|Posted on September 23, 2013 at 3:10 PM||comments (53)|
Warrant Probable Cause Affidavit: Why its Important. Police make a lawful traffic stop of the defendant, Rabb. They have a tip from an unknown informant that Rabb has a marijuana operation in his home. Once stopped and asked out of his car, cops find marijuana growing books, a video tape on the subject and marijuana cigarettes. Based on that information the cops go to Rabb’s home and walk a drug-sniffing dog up to the front door. The dog alerts to drugs, after which the cops detect the odor of marijuana inside the house. The cops take all the information from the traffic stop along with the information gathered at the house and use it to apply for a search warrant. The warrant is issued and over 60 marijuana plants are found in the house. ISSUE: Did the use of a drug dog at Rabb’s house constitute an impermissible search under the fourth amendment, making the information gained there from unusable in the application for a search warrant? Was there enough independent and legally obtained evidence in the warrant application to provide probable cause for the issuance of the warrant? RULE: Evidence resulting from an illegal search cannot be the basis of probable cause supporting a subsequent search warrant. The use of a dog sniff to detect contraband inside a house does not pass constitutional muster. The dog sniff at the house in this case constitutes an illegal search.The inclusion of illegally obtained evidence in the supporting affidavit, where the affidavit contains other valid allegations sufficient to establish probable cause, does not invalidate a search warrant. The trial court's duty is to excise the invalid allegations and determine whether the independent and lawfully obtained information demonstrates probable cause. Conclusion:(Here) No independent and lawfully obtained evidence establishes the probable cause necessary to support the issuance of a search warrant for Rabb's house. Summary: A search warrant cannot be based on evidence that was obtained illegally. The home is afforded heightened protection under the fourth amendment and so cops cannot simply bring a drug dog to your home to scan the outside of the premises hoping to detect things inside. If you possess any “questionable materials” leave them at home, don’t ride with them in your car.
|Posted on September 12, 2013 at 9:06 PM||comments (64)|
In Florida Supreme Court case State v. Frierson, police pulled over a driver for a supposed traffic violation (failure to use a blinker). It turned out that no actual violation had occurred and that the officer simply didn’t know the law on that issue (as long as the failure to use the signal doesn’t create a danger to other drivers the statute has not been violated). Non-the less the officer proceeded to run the driver’s name and the system reported an outstanding warrant on him (the warrant too turned out to be bogus as it was issued for the arrest of another individual). Non-the less the officer arrested the man based on the warrant and carried out a search incident to the arrest. The search turned up a gun in the car, which led to the driver being charged with possession of a firearm by a convicted felon.
After entering a plea at the trial court level and reserving the right to appeal the denial of his motion to suppress the gun based on an illegal search, the driver ended up in the Florida Supreme Court. The court had to decide whether the gun found was the fruit of the poisonous tree and had to be suppressed or was admissible against the defendant.
The Florida Supreme Court applied the attenuation doctrine as announced in the US Supreme Court Case, Wong Sun. As applied to the facts in Frierson, the Florida Supreme Court ruled that Wong Sun allows for an officer to (1) Stop a vehicle where there was no actual reasonable suspicion for a traffic stop- (2) Run the driver’s name for a possible warrant and if there is one (even a bogus one really put out on someone else) the cop may arrest the driver based upon the warrant and carry out a search incident to that arrest and all evidence found there from is admissible; as the bogus warrant dissipates the original taint of the bogus stop.
My head is hurting.
|Posted on August 6, 2013 at 9:26 AM||comments (29)|
In the 1996 case Whren v. United States, the Supreme Court ruled that it is lawful for a police officer to follow a citizen on the road and pull that citizen over for any traffic violation regardless of how minor the violation is or whether a reasonable officer would’ve made such a stop. (This was a highly problematic ruling because law enforcement officers testified that an officer can ALWAYS find some sort of traffic violation regardless of how good of a driver someone is= its impossible to observe every single traffic regulation).
In addition the Whren court ruled that an officer’s subjective reason for making a stop makes absolutely no difference in determining whether the stop was legal or not; meaning if an officer see’s a person wants to search him because he “looks suspicious” the officer can legally stop him for that reason as long as the officer has probable cause to believe some traffic law has been violated (the officer will always possess such probable cause).
In addition, in Arizona v. Gant the US Supreme Court provided officers with 2 routes to justify searching a car once there is a stop/arrest. Officers may search a vehicle incident to lawful arrest (1) for officer safety=cops believe the arrestee may access a weapon from within the vehicle –OR- (2) cops have reason to believe that evidence related to the crime of arrest is inside the car. This means that once officers make even a minor traffic stop, it can easily escalate into a full-scale drug search of the driver, passengers and vehicle itself.
The practical lesson for today is, know that your right to privacy inside your car is very limited and that police can utilize a host of legal rules to justify stopping you and searching your person, car and all of its contents.
|Posted on July 15, 2013 at 12:15 PM||comments (61)|
Good Morning guys, we're back with another edition of Know Your Rights:
It is important for you to know what tools your criminal defense Attorney could be using to get you the best possible outcome in your case. There are two powerful weapons that a diligent defense Attorney will seek to utilize from the very start of your case; (1) A motion to dismiss for Insufficiency of Evidence (saying even with the facts the state has alleged there is enough to create a prima facie case of guilt) (2) A motion to suppress (saying the state violated the 4th amendment in obtaining the evidence it has against you). Based on the facts of you case either or both of these tools could be used to resolve the matter before it even proceeds to trial or a plea bargain.
Your Attorney should not simply relay the state's first offer to you and wait around to see if you accept it. From the moment an Attorney takes your case he/she should be searching for ways to resolve it in a way the benefits you while exposing you to the least risk possible. The tools above are frequently used to do just that. Know your rights and always pick an Attorney who is willing to work and fight for you from day 1!
|Posted on February 4, 2013 at 2:18 PM||comments (291)|
The entire process takes about 3 months (CHAPTER 7) and is summarized in 4 easy steps: Once you’ve chosen us to assist you with your bankruptcy case, you will need to provide documentation regarding your financial situation and to fill out our Bankruptcy Intake Form. ·
Go to Credit Counseling – One of the requirements of bankruptcy is to attend credit counseling classes. These classes are designed to educate you regarding finances so that you do not wind up in the same situation again. Classes are simple and take a short amount of time to complete and can be done on the web. About 1 weeks after you provide us with a completed Bankruptcy Intake Form we will have your bankruptcy ready for filing! We will schedule to review the details of the petition and sign the required documentation. ·
Bankruptcy Petition Filed and Case Number Provided – The day after signing your petition we will file the documents with the bankruptcy court and you will receive your case number. Once you have a case number, you will be required to attend another educational course. This should either done prior to you first bankruptcy court hearing or no more than 60 days after your bankruptcy hearing. ·
‘Automatic Stay’ Goes into in Effect – This stops all creditors from making any attempts to collect money from you or to even call you. All judgments or pending law suits are also stopped as of the moment in time of your bankruptcy filing. ·
Notice From Bankruptcy Court – After your bankruptcy petition has been filed with the court, you will receive a notice informing you of your hearing date. Normally the hearing will take place about 30 days after your petition signing. You will need to appear before the court for a hearing during which the bankruptcy trustee will ask you a series of questions. Your bankruptcy lawyer or paralegal will prepare you for these questions and get you ready for the hearing. The hearing itself is relatively short, only ten minutes in many cases. ·
Keeping Property (Reaffirming Debt) – During the bankruptcy court hearing, if there are any debts that you would like to “reaffirm”, meaning you would like to keep the property, you will need to bring this up and sign a reaffirmation agreement. This means you will agree to a repayment schedule with the creditor. Often times a discounted rate will be offered in order to help you with the repayment, such as a car payment. About two months after you court hearing, you will receive a Notice of Discharge from the bankruptcy court. At this point, your bankruptcy case is over and you are relieved of all debt, except that which you chose to reaffirm.