ILLEGAL SEARCH AND SEIZURES AND MOTIONS TO SUPPRESS

YOUR FOURTH AMENDMENT RIGHTS: SEARCH AND SEIZURE

TRAFFIC STOPS:  HOW YOU CAN PROTECT YOUR RIGHT TO BE FREE FROM ILLEGAL SEARCHES AND SEIZURES

Under the Fourth Amendment to the U.S. Constitution and the California Constitution, citizens have a right to be free from illegal search and seizure by government officials, such as police.  The laws governing a citizens Fourth Amendment rights are legally complex but there are basic principals you should understand in order to protect your rights whenever encountering the police.

Often people encounter police after being stopped for a traffic violation. When you are pulled over for a minor traffic violation, an officer does not have a search warrant, so they can only search your person or vehicle if they have probable cause. Probable cause means the officer has a “reasonable belief” that you have committed a crime or are about to commit a crime, or if you consent to the search. If there is no probable cause and the person to be searched does not consent to the search, the search is generally illegal (few exceptions).

YOU DO NOT HAVE TO CONSENT TO A WARRENTLESS SEARCH!

Many times, an officer has no reason to believe any crime is being committed aside from the traffic infraction for which the person is being pulled over.  (See my BLOG that discusses the great 2009 U.S. Supreme Court case of Arizona v. Gant, which limits an officer’s ability to search your vehicle after a traffic stop.) Officers know that people are nervous and anxious when encountering police and they use this to their advantage. Officers know that if they get your consent, they can search you and your vehicle even if there was no probable cause to do the search. So don’t consent to the search! When you consent, you are waiving your constitutional right to be free from a search and seizure made without probable cause.  If you consent and the officer finds any contraband, all that evidence will be used against you in court.  If however, an officer conducts a search without probable cause and you do not waive your rights, then anything found can not be used against you.  It is in such cases that a Motion to Suppress the illegally obtained evidence is filed and argued in court.

For example, if an over zealous officer decides to pull you over for speeding, insists on searching your car without probable cause and without your consent, and then finds drugs or some other illegal contraband, that evidence will not be allowed in front of the jury.  When a Judge throws out such evidence (after the defense attorney files a motion to suppress under section 1538.5 of the Penal Code), the case is often dismissed because the prosecutor no longer has enough evidence to prove their case in court.

Illegal search and seizure is a classic defense in criminal law and one that I look for in every case I have. If you have been arrested or accused of a crime, you need an experienced and dedicated criminal defense attorney to represent you in court.  

Call me, attorney Ann Gottesman, for a FREE consultation so we can discuss your case and concerns. I am here to help you!

NEW 2010 PAROLE VIOLATION AND REVOCATION RULES WHICH HELP PAROLEES STAY OUT OF JAIL

NEW PAROLE REVOCATION LAWS FOR 2010 WHICH REDUCE THE NUMBER OF PAROLE VIOLATIONS AND REVOCATIONS ISSUED TO PAROLEES:

In late 2009, Governor Arnold Schwarzenegger signed Senate Bill x3 18, authored by Sen. Denise Ducheny (D-San Diego), which changes the current parole system in several positive ways:  This new bill allows parole agents to focus their time on supervising the more serious offenders, reduces parole agent caseloads and implements a new outcome-based case planning process that provides incentives for parolee success. 

PAROLEES WHO COMMIT NEW CRIMINAL OFFENSES WILL NOT AUTOMATICLLY BE SUBJECT TO A PAROLE VIOLATION, PAROLE HOLDS  OR PAROLE REVOCATION:

The new laws and reforms create a system of “summary” or “non-revocable” parole for certain low-risk parolees. In other words, in many cases where a Defendant is on parole and gets arrested for a minor offense, the parole officer will not even be allowed to revoke parole or place a parole hold on the parolee!  In fact, in these minor misdemeanor and felony offenses (usually non violent offenses), a parolee is never even flagged for a parole hearing as long as they meet the requirements listed in SBx18, sec. 48 (see below)!  This new policy is an attempt to free up parole officers’ time so they are not investigating and wasting resources conducting parole violation hearings or placing holds on parolees who are generally complying with parole requirements but end up committing some minor offense (such as a misdemeanor or non violent felony). No longer will every tiny mistake or encounter with police result in a parole hold or a possible parole violation

To see if a new arrest or conviction while on parole constitutes a parole violation that could result in revocation or a hold, see the text of SBx18, sec. 48, provided below:

The Legislative Counsel’s Digest of this portion of Bill SBx318 says the following:

“Under existing law, the department is authorized to return a parolee to prison if the Board of Parole Hearings determines that the parolee violated the terms of his or her parole, as specified…This bill would prohibit the department from returning certain parolees to prison, placing a parole hold on the parolee, or reporting the parolee to the Board of Parole Hearings for a violation of parole, as specified.”  [Emphasis Added.]

SBx18, sec. 48 [note the phrase “notwithstanding any other provision of law” that begins new § 3000.03]:

3000.03. Notwithstanding any other provision of law, the Department of Corrections and Rehabilitation shall not return to prison, place a parole hold on pursuant to [Pen. C. §] 3056, or report any parole violation to the Board of Parole Hearings regarding any person to whom

all of the following criteria apply:

(a) The person is not required to register as a sex offender [under Pen. C. §§ 290 et seq.].

(b) The person was not committed to prison for a serious felony as defined in Sections 1192.7 and 1192.8, or a violent felony, as defined in Section 667.5, and does not have a prior conviction for a serious felony… or a violent felony, as defined in [those Sections].

 (c) The person was not committed to prison for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code [Sexually Violent Predators] and does not have a prior conviction for [such an offense].

(d) The person was not found guilty of a serious disciplinary offense, as defined in regulation by the department [see Cal. Code Regs., tit. 15, § 3315], during his or her current term of imprisonment.

(e) The person is not a validated prison gang member or associate, as defined in regulation by the department. [See Cal. Code Regs., tit. 15, § 3000.] 

(f) The person did not refuse to sign any written notification of parole requirements or conditions, including, but not limited to, the written notification of requirements pursuant to [Pen. C. §] 3067 [consent to warrantless search and seizure].

 (g) The person was evaluated by the department using a validated risk assessment tool and was not determined to pose a high risk to reoffend.

Operative January 25, 2010.

[Check back for more of my updates on the new 2010 laws that affect the criminally accused.]

NEW DUI LAWS FOR 2010

Some new DUI laws will come into effect in 2010.  One of these new laws is very helpful for those drivers convicted of more that one DUI within a 10 year period.

NEW LAW SUMMARY: SB 598: New Bill will allow driver’s with multiple DUI convictions to get a restricted license much earlier than allowed under current law.

SECOND DUI CONVICTION WITHIN 10 YEARS: As the law currently stands, a person convicted of two separate DUIs within a 10 year period (with no bodily injury to another)vwill have their driver’s license suspended for 2 years, with the opportunity to obtain a restricted license (to drive for work related purposes) after 12 months.  To obtain a restricted license after 12 months, the driver must show proof of enrollment in the appropriate DUI class and pay a fine.

The new bill, which will become operative on July1, 2010 will allow a driver who has 2 DUI convictions with in a 10 year period, apply for a restricted license after only waiting 90 days if the drivber can show he is enrolled in the appropriate DUI class and has installed an ignition interlock device on the vehcile.

THIRD DUI CONVICTION WITHIN 10 YEARS:  As the law stands now, a person who has 3 DUI convictions within 10 years (with no bodily injury to another), will get their driver’s license revoked for 3 years and cannot apply for a restricted license to drive to work until they completed at least 2 years of the revocation period. This is a very long time to wait to be able to drive to work, and this law has caused many of my clients great hardship.

Thankfully, the new law will allow a driver with 3 DUI conviction the opportunity to obtain a restricted license after only a 6 month waiting period! Of course, the driver will have to show proof of enrollment in the appropriate DUI class, show an interlock device is installed on the vehicle and pay some fines.

NEW LAW SUMMARY: SB 91:  This law would create a pilot program that will require first time DUI offenders in Los Angeles, Alameda, Sacramento and Tulare counties, to install an ignition interlock device on their vehicle in order to be eligible for a restricted license. As the law stands right now, first time DUI offenders are normally not required to install an interlock device on their car, but under this pilot program, they will now be required to.

Welcome to Ann’s Blog

Welcome to Pasadena Criminal Attorney Ann Gottesman’s Blog.