Tag Archives: probable cause

What you should know about Probable Cause

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…Then they searched me. Can they DO that? What about probable cause?
What is probable cause?

What you should know about search and seizure

When the government obtains evidence against a defendant in violation of her/his constitutional rights, that evidence may be suppressed, and therefore not introduced at trial by the prosecution. This rule is derived from the US Constitution. The defendant in such a situation is entitled to a pretrial suppression hearing. At the hearing, the defendant will generally not testify, only the police officers will give testimony. A person is not generally entitled to a pretrial suppression hearing regarding admissibility of evidence. A hearing may be granted by the court after a showing by the defendant that a constitutional violation of a defendant’s search and seizure rights took place.

There are endless scenarios with regard to the application of the search and seizure analysis. The analysis is different and can change based on the smallest facts individual to your case. If you are charged with a crime, you must immediately seek the advice of an experienced attorney who works everyday to help people protect their rights to ensure the most favorable outcome possible in your case.

Among the types of evidence that a prosecutor may offer against a defendant at trial are tangible (such as drugs seized), observations of police officers, identifications by witnesses, and statements or confessions obtained from the defendant. Each of these may be subject to suppression if improperly obtained by the police. When evidence was arguably obtained in an unconstitutional manner, the defense recourse is to move to suppress. The object of the motion is to suppress the evidence (exclude its admission at trial). If the prosecution disputes the defense assertion, a suppression hearing is held.

There are four levels of permissible police intrusion, and each has it’s own requirement to determine whether the police intrusion is justified. Level I, is the least intrusive level, and is called a “request for information.” This level requires an objective and credible reason for the police to approach an individual that is not necessarily indicative of criminality. Questions permissible at this level include identity, address or destination.

A Level II inquiry is referred to as the “common law right of inquiry.” In order for the police to intrude at this level, founded suspicion that criminal activity is afoot is required. At this level, an officer is entitled to interfere with the citizen to the extent necessary to gain explanatory information, but may not forcibly seize the individual. This type of questioning would lead the person approached to reasonably believe that he or she is suspected of some wrongdoing and is the focus of the approaching officer’s investigation.

A Level III, detainment and frisk, requires the police to have reasonable suspicion that criminal activity has or will be committed. The police may forcibly pursue and/or stop and detain an individual, that is, significantly impede that person’s freedom of movement. Reasonable suspicion is defined as that amount of knowledge sufficient to cause an ordinarily prudent and cautious person to believe, under the circumstances, that criminal activity is at hand.

Lastly, a Level IV, warrantless arrest, is the highest level of police intrusion. This can only be done when there is “probable cause” to believe that the person has committed a crime, even if the crime was not committed in the officer’s presence.

If you should have any questions about a particular matter and your charges are in Onondaga, Oneida, Madison, or Jefferson County, don’t hesitate to call us at 315-701-2939 or CONTACT US ONLINE

See related articles:

What are my rights if I am stopped, searched, or arrested by police?

Do I have to take a breathalyzer test if the police ask me to?

What is Drug Court and could it help me?

Drugs in a car are Everyones Drugs- The Automobile Presumption

NY Room Presumption- Guns and Drugs belong to everyone

 

If You Give the Police the Finger How Long in Jail Will You Linger?

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If You Give the Police the Finger How Long in Jail Will You Linger? 

In January 2013, the police arrested a man in St. Johnsville New York for disorderly conduct, after he flipped off an officer.  After the man’s arrest, the criminal charges were dismissed and he sued the police.  Ultimately, the U.S. Court of Appeals for the 2nd Circuit allowed the man’s lawsuit against the police to survive, ruling that the “ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity.”

While free speech is one of our most cherished liberties, free speech is subject to court interpretation.  As a result, time after time courts have had to consider the question:  “What are the limits of free speech?”  The answer, even for an experienced criminal lawyer, is not an easy one.  In general, Courts have identified three types of free speech, each protected at a different level:

 

  1. Pure speech:  is the verbal expression of thoughts and opinions before a voluntary audience and has received strong protection from courts.

  2. Speech-plus:  involves actions, such as demonstrating or protesting, as well as words and is not generally protected as strictly as is pure speech.

  3. Symbolic speech:  often involves no speech at all, but rather involves symbols or gestures that courts have judged to be forms of free expression, such as flipping off an officer.  Symbolic speech is always controversial and courts have sometimes held it to be beyond the limits of free speech.

 

So, can you safely flip off a cop without going to jail?  The answer is probably not.  In truth, the police will not appreciate a challenge to their authority and will likely arrest you.  The most common charges in this situation will likely be Disorderly Conduct or Obstruction of Governmental Administration.  In addition, if the police arrest and search you or your vehicle and find evidence of a different crime like possession of drugs, possession of marijuana, or possession of a weapon, you will be arrested and charged with those additional crimes.

 If you get arrested for exercising you free speech rights call Weisberg & Zukher, PLLC. at 315-701-2939 or send us an e-mail and tell us about your case at bestsyracuselawyer.com.  Your initial consultation is always free.  Our experienced attorneys will help you by vigorously defending your case under the guiding principles of Franklin Roosevelt:  “We must remember that any oppression, any injustice, any hatred, is a wedge designed to attack our civilization.”

Call Weisberg & Zukher, PLLC. at 315-701-2939 for a free consultation or send us an e-mail to tell us about your case at bestsyracuselawyer.com.

See related articles:

What are my rights if I am stopped, searched, or arrested by police?

How do I remove a criminal charge from my record?

What you should know about Probable Cause

What is Harassment?

This Blog/Web Site is made available by the publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Can the Police Legally Search Your Butt After a Routine Stop for a Traffic Ticket?

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Can the Police Legally Search Your Butt After a Routine Stop for a Traffic Ticket?

2011 04 11 - 7662 - Washington DC - DC Rights Protest
thisisbossi / Foter / CC BY-NC-SA

On August 5, 2013, a Syracuse police officer stopped a man for a traffic violation when he allegedly failed to use a turn signal.  After noticing him wiggling around in his seat, the police allegedly saw crack cocaine on the man’s seat.  When the man was brought to the Justice Center and a body search was conducted, the police allegedly found crack cocaine hidden in his buttocks.  The man was charged with drug possession third and fourth degree felonies and a drug possession in the seventh degree misdemeanor.

Did the police have the right to search the man’s butt when he was only stopped for a traffic ticket?  As with every drug case, the key issue is whether the police seizure was lawful or did the police violate the man’s search and seizure rights.  The answer requires a lawyer to analyze the legality of the search and seizure had under the federal (Fourth Amendment) and New York constitutions.  As a general rule, when a car is stopped for a traffic infraction, the police may not search absent additional grounds to believe that a crime has been committed.  The police can order the driver or passenger out of the car during a traffic stop and, if the police observe contraband in plain view, they can search the entire car, along with its occupants.  Another permissible reason for the police to search a car is when the police smell marijuana in the vehicle.

Although there are many valid reasons for the police to search a car and its occupants, the police often conduct car searches based on illegal reasons.  Just some examples are:  (1) the car is in a “high crime area;” (2) furtive movements of the car’s occupants, like “wiggling” or moving your hands; (3) the occupants giving different stories as to their travels; and (4) asking the occupants if the car contains “anything illegal they should know about” without observing any facts of a crime.

If the police conduct an illegal search, and the proper suppression motions are brought by your attorney, all property illegally seized will be suppressed and may not be used as evidence against you at trial.  In certain instances, suppression from an illegal search may extend to your statements or confession, which may be suppressed as the “fruit” of the illegal search or “poisonous tree.”

Can the police search your butt after a traffic stop?  The legal answer often depends on the skill and ability of your attorney to conduct a proper and detailed analysis of your case under the applicable search and seizure law.  The attorneys at Weisberg & Zukher, PLLC. have more than a decade of trial and motion experience with search and seizure issues.  If you are charged with a drug crime, our knowledge of search and seizure law will make all the difference in your case, to obtain the best result possible for you.

Call Weisberg & Zukher, PLLC. at 315-701-2939 for a free consultation or send us an e-mail to tell us about your case at bestsyracuselawyer.com.  O

This Blog/Web Site is made available by the publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

Drug Sales on School Grounds

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Drug Sales on School Grounds

So you think it’s no big deal, you have a little pot on you at school- maybe you sell a little bit to a friend, not much- maybe enough to roll a single joint with. After all marijuana is decriminalized in NY right? You can’t be charged with any real crimes right? Wrong. A big wrong that could have huge impacts on your entire life.

Yes, it’s true in NY State Unlawful Possession of Marijuana is considered only a violation and subject to only fines on your first or second offense and “only” a fine and/or 15 days in jail on your third offense. The game all changes when it happens on school grounds. That little bit of marijuana that you sell to a friend for a few bucks becomes subject to felony charges that could have a significant impact on the rest of your life.

Section 221.5 of NYS Penal code provides that “A person is guilty of criminal sale of marihuana in the second degree when he knowingly and unlawfully sells one or more preparations, compounds, mixtures or substances containing marihuana and the preparations, compounds, mixtures or substances are of an aggregate weight of more than four ounces, OR knowingly and unlawfully sells one or more preparations, compounds, mixtures or substances containing marihuana to a person less than eighteen years of age.”  Criminal sale of marijuana in the second degree is a class D felony. A class D felony could be punishable of 1-3 to 7 years in prison. In addition, a felony conviction on your record will affect you ability to receive federal and state student loans, could prevent you from obtaining professional licenses, firearm permits, and make you ineligible for certain jobs.

Already thinking twice about having drugs in school or selling/sharing with friends? Good but wait – there is more. Depending on the circumstances, amounts, and other variables, you COULD open yourself to charges in violation of Section 220.44 Criminal sale of a controlled substance in or near school grounds. Criminal sale of a controlled substance in or near school grounds is a class B felony. All the same ramifications of felony convictions on your record that we told you about above hold true and in addition, non-violent class B felonies carry a sentencing guideline of  1-3, Max 25 years.  This includes recreational drugs like psychedelic mushrooms, acid, narcotic pain pills, hashish, ecstasy, and of course cocaine and heroin.  “Harmless experimentation” with these popular drugs in or around schools is a very serious mistake! It’s certainly not harmless to your health or your future.

If you find yourself charged with a crime of this nature, it is imperative that you contact an experienced, knowledgeable criminal attorney in your state. If your charges are in Onondaga, Oneida, Madison, or Jefferson County and have additional questions, don’t hesitate to CONTACT OUR OFFICE

See related articles:

What is Drug Court and could it help me?

How do I remove a criminal charge from my record?

Drugs in a car are Everyones Drugs- The Automobile Presumption

NY Room Presumption- Guns and Drugs belong to everyone

This Blog/Web Site is made available by the publisher for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand that there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.