The Fourth Amendment of the U.S. Constitution protects every person from being free from unreasonable searches and seizures by law enforcement. This means the police must have either a warrant, or some other legitimate reason to be able to search anything in which a person has a “reasonable expectation of privacy”.
One of the reasons often used by police to search a person is when the search is “incident to an arrest” – meaning, if you are lawfully arrested, police may search your clothes and any purse, backpack, etc. with you at the time of your arrest. The point of the search is to determine if you have a weapon or other contraband with you before they take you into custody. Obviously, this sort of search is necessary, and makes sense as an exception from the requirements of the Fourth Amendment. It is not unreasonable for your pockets or backpack to be searched for weapons if you have been legally arrested.
However, in the recent decision in People v. Diaz, the California Supreme Court took this exception to the warrant requirement a step further. In Diaz, the defendant was arrested for his involvement in a drug deal. After being arrested and questioned for approximately 90 minutes, a detective looked through Diaz’s cell phone and found text messages regarding a drug transaction. Diaz challenged this search of his cell phone as a violation of his Fourth Amendment right – obviously he would not be allowed to possess the cell phone in jail, and so it could not contain a weapon or other contraband. Further, if the police wished to search the phone, they could easily have obtained a warrant without any threat of evidence on the phone being deleted, as the phone was no longer in Diaz’s possession.
But the California Supreme Court instead took a dangerous step towards eroding our Constitutional rights by declaring the search legal as “incident to the arrest”. This case appears to open up a host of other privacy issues – can the police now search a person’s iPad in a backpack? What about a laptop in a suitcase? What if the device is password protected? What if the arrest is for something (like a DUI) completely unrelated to potential evidence that could be found on a phone? What if an officer justifies looking through texts or email on the basis of a sham excuse of looking for evidence of the crime, like texts about which bar to meet up with friends?
Very likely, this case will be appealed to the U.S. Supreme Court. Hopefully, the legitimacy of this sort of invasion of privacy will be struck down. Until then, however, it’s a good idea to password protect your phone, iPad, or laptop. If police ask for your password, remember your Fifth Amendment right to remain silent. Always protect yourself!
If you have any questions regarding this or any other criminal law issue, contact criminal defense attorney Scott R. Ball today. Consultations are completely confidential and always free.
Showing posts with label 4th Amendment. Show all posts
Showing posts with label 4th Amendment. Show all posts
11/18/10
Easy Ways to Avoid Being Pulled Over
The US Constitution protects a person from being stopped by the police without a legitimate reason. Law enforcement may not pull over a vehicle without reasonable suspicion that some sort of crime has been committed. However, that reasonable suspicion can be for ANY crime, including very minor vehicle code infractions. Further, even if the true reason for the stop is because, for example, the driver is black and driving an expensive car in a nice neighborhood, or the occupants are four young men leaving a bar, as long there is a legitimate reason for the stop, these police actions are legal.
There are a number of minor violations police regularly use as an excuse to pull someone over based simply on prejudice. What can you do to avoid these? Don’t commit the following common vehicle code violations.
-Failure to have a front license plate. If your state issues two license plates (as does California), you are required to have both affixed to your vehicle.
-Illegal window tinting. Front side windows must allow at least 70% of light to pass through, and only the top four inches of the windshield may be tinted.
-Burnt-out lights. It is a vehicle code violation for any lights to be inoperable on your vehicle – not just tail and brake lights, but the small light that illuminates your license plate as well.
-Expired registration. This is an easy one to avoid, and probably the one most likely to get you pulled over. Pay your renewal fees, get your smog check, and make it legal!
-Obstructed windshield. It is illegal to have anything attached to the windshield or side windows that may obstruct the view of the driver. This section is commonly violated by affixing a GPS device with a suction cup to the front windshield, or hanging things from the rear view mirror. There is an allowance for stickers or other material in a five inch square on the bottom corner of the windshield on the driver’s side and a seven inch square in the bottom corner of the passenger side.
-Talking on your cell phone. Get a hands free device. They cost significantly less than the $140-something ticket. And given that this is a relatively new law, police WILL pull you over if they see you doing it.
-Don’t be an idiot in general. Excessive speeding, reckless driving, frequent lane changes, failing to signal, rolling through stop signs, and hundreds of other common violations of which you are already aware exist. Use common sense, and don’t give law enforcement the excuse they need to interrupt your commute.
For more information or advice on how to avoid being pulled over, contact The Law Office of Scott R. Ball today. All consultation are free and totally confidential.
There are a number of minor violations police regularly use as an excuse to pull someone over based simply on prejudice. What can you do to avoid these? Don’t commit the following common vehicle code violations.
-Failure to have a front license plate. If your state issues two license plates (as does California), you are required to have both affixed to your vehicle.
-Illegal window tinting. Front side windows must allow at least 70% of light to pass through, and only the top four inches of the windshield may be tinted.
-Burnt-out lights. It is a vehicle code violation for any lights to be inoperable on your vehicle – not just tail and brake lights, but the small light that illuminates your license plate as well.
-Expired registration. This is an easy one to avoid, and probably the one most likely to get you pulled over. Pay your renewal fees, get your smog check, and make it legal!
-Obstructed windshield. It is illegal to have anything attached to the windshield or side windows that may obstruct the view of the driver. This section is commonly violated by affixing a GPS device with a suction cup to the front windshield, or hanging things from the rear view mirror. There is an allowance for stickers or other material in a five inch square on the bottom corner of the windshield on the driver’s side and a seven inch square in the bottom corner of the passenger side.
-Talking on your cell phone. Get a hands free device. They cost significantly less than the $140-something ticket. And given that this is a relatively new law, police WILL pull you over if they see you doing it.
-Don’t be an idiot in general. Excessive speeding, reckless driving, frequent lane changes, failing to signal, rolling through stop signs, and hundreds of other common violations of which you are already aware exist. Use common sense, and don’t give law enforcement the excuse they need to interrupt your commute.
For more information or advice on how to avoid being pulled over, contact The Law Office of Scott R. Ball today. All consultation are free and totally confidential.
3/1/10
Tips for Avoiding a DUI
Of course, the best way to avoid being arrested for driving under the influence is to simply not get behind the wheel if you’ve been drinking. However, we all know that sometimes your night doesn’t go as planned, so if you do choose to drive, it’s important for you to know how to be safe and avoid getting pulled over and arrested.
A law enforcement officer cannot simply pull you over at random. He or she must have a reasonable suspicion that you have broken a law. This is often accomplished when they observe a driver speeding, run a red light, swerve between lanes, tailgate, or any number of other common traffic violations. It's a simple fact that drivers under the influence of alcohol drive more recklessly. This is a very bad idea not only because it is obviously extremely unsafe for an inebriated driver to be taking such chances but also because it makes them much more likely to be pulled over. If you know that you may be near or over the legal limit it is crucial that you are highly observant of traffic rules – watch your speedometer, signal for every lane change, and check your review mirror frequently! It sounds simple but most drivers convicted of DUI are pulled over because they are careless at the exact time they should be taking extra caution.
However, even if you take every possible precaution and drive like your grandmother it is still possible to fall victim to some basic dumb luck and be pulled over. There are any number of technical violations for which you can be stopped by a police officer, such as an expired registration, broken tail light, or too-tinted windows. The Fourth Amendment protects you from unreasonable harassment from police – to a point. An officer cannot pull you over simply because you look like you are leaving a party with four obviously drunk friends on your way to pick up some late night Del Taco. However, he can pull you over if he notices that the light illuminating your license plate doesn’t work – even if his real motivation in stopping you is to check to see if you’ve been drinking.
The solution to this scenario is to be prepared. Make sure your vehicle is always in compliance with all vehicle codes. Pay your registration on time, promptly fix all broken lights, and make sure everything is in proper order on any other car you might drive.
Please remember that the only way to completely be safe and avoid a DUI is to not get behind the wheel if you are under the influence. Drinking and driving is never a good idea and in no way is this message meant to encourage it. However, it is in your own best interest to always be extremely aware of your actions and surroundings.
A law enforcement officer cannot simply pull you over at random. He or she must have a reasonable suspicion that you have broken a law. This is often accomplished when they observe a driver speeding, run a red light, swerve between lanes, tailgate, or any number of other common traffic violations. It's a simple fact that drivers under the influence of alcohol drive more recklessly. This is a very bad idea not only because it is obviously extremely unsafe for an inebriated driver to be taking such chances but also because it makes them much more likely to be pulled over. If you know that you may be near or over the legal limit it is crucial that you are highly observant of traffic rules – watch your speedometer, signal for every lane change, and check your review mirror frequently! It sounds simple but most drivers convicted of DUI are pulled over because they are careless at the exact time they should be taking extra caution.
However, even if you take every possible precaution and drive like your grandmother it is still possible to fall victim to some basic dumb luck and be pulled over. There are any number of technical violations for which you can be stopped by a police officer, such as an expired registration, broken tail light, or too-tinted windows. The Fourth Amendment protects you from unreasonable harassment from police – to a point. An officer cannot pull you over simply because you look like you are leaving a party with four obviously drunk friends on your way to pick up some late night Del Taco. However, he can pull you over if he notices that the light illuminating your license plate doesn’t work – even if his real motivation in stopping you is to check to see if you’ve been drinking.
The solution to this scenario is to be prepared. Make sure your vehicle is always in compliance with all vehicle codes. Pay your registration on time, promptly fix all broken lights, and make sure everything is in proper order on any other car you might drive.
Please remember that the only way to completely be safe and avoid a DUI is to not get behind the wheel if you are under the influence. Drinking and driving is never a good idea and in no way is this message meant to encourage it. However, it is in your own best interest to always be extremely aware of your actions and surroundings.
7/2/09
Stopped by Police? Know Your 4th Amendment Rights!
One of the most important protections guaranteed by the United States Constitution is the Fourth Amendment right to be free from unreasonable searches and seizures. However, if one is not aware of such rights, the protections it offers will often not be realized. This is often the case when a motorist is pulled over by a police officer and questioned.
The most important thing to remember is that you NEVER have to give permission to an officer to search anything. Police officers will often “ask” if you mind if they take a look at something in such a way that implies they will do it anyway, and receiving your permission is just a formality. If you say “yes,” then you have just surrendered one of your most important rights! Even if you don’t believe they will find anything illegal, you never know what your buddy might have left in the backseat the night before. Don’t ever let an officer search your person, vehicle or anything else by giving them permission!
For a law enforcement official to search any of your property, they must have significant justification to do so. This can be provided by a search warrant. If an officer does have a search warrant, ask to inspect it before allowing the officer to search anything. A search can also be conducted when an officer has probable cause to believe that such a search will find evidence of illegal activity. This standard is slightly relaxed, however, for a search of your vehicle. In that situation, the officer must only show a “reasonable suspicion.”
If a search of your property has turned up evidence of illegal activity, the officer must show specific evidence that gave rise to show probable cause or reasonable suspicion. An experienced attorney can challenge these findings as failing to give rise to such justification. A successful Fourth Amendment challenge will result in the evidence being thrown out, and probably the case as well!
However, if you have given permission to the officer to perform the search, no such justification is necessary. Therefore, remember to NEVER give permission to an officer to perform any search.
If you have been stopped by law enforcement and you believe you may have been searched illegally, you should contact criminal defense attorney Scott R. Ball today. An evaluation of your case is completely confidential and always free.
The most important thing to remember is that you NEVER have to give permission to an officer to search anything. Police officers will often “ask” if you mind if they take a look at something in such a way that implies they will do it anyway, and receiving your permission is just a formality. If you say “yes,” then you have just surrendered one of your most important rights! Even if you don’t believe they will find anything illegal, you never know what your buddy might have left in the backseat the night before. Don’t ever let an officer search your person, vehicle or anything else by giving them permission!
For a law enforcement official to search any of your property, they must have significant justification to do so. This can be provided by a search warrant. If an officer does have a search warrant, ask to inspect it before allowing the officer to search anything. A search can also be conducted when an officer has probable cause to believe that such a search will find evidence of illegal activity. This standard is slightly relaxed, however, for a search of your vehicle. In that situation, the officer must only show a “reasonable suspicion.”
If a search of your property has turned up evidence of illegal activity, the officer must show specific evidence that gave rise to show probable cause or reasonable suspicion. An experienced attorney can challenge these findings as failing to give rise to such justification. A successful Fourth Amendment challenge will result in the evidence being thrown out, and probably the case as well!
However, if you have given permission to the officer to perform the search, no such justification is necessary. Therefore, remember to NEVER give permission to an officer to perform any search.
If you have been stopped by law enforcement and you believe you may have been searched illegally, you should contact criminal defense attorney Scott R. Ball today. An evaluation of your case is completely confidential and always free.
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