In drug cases, the main way that cases are dismissed is that there was some illegal police procedure, usually an illegal search or an illegal pat down. Rarely does an illegal arrest occur but it’s more an illegal stop of a car, an illegal search of a car, an illegal search of a person, an illegal pat down of a person. Probably the most common police mistake is to pat down people who are stopped for anything. Police are trained informally to pat down just about everybody that they stop because police want to make sure there are no guns but the police custom is very different from criminal procedure. The police are not allowed to do a pat down on everybody they lawfully stop, they can only do a pat down on people who are lawfully stopped and where the police have reasonable articulable suspicion that the person is armed and/or dangerous or there is some access to some object which is dangerous like a needle.
Police often times pat suspects down after a driving while suspended stop whether or not going to arrest the person or somebody else is arrested and they pull everybody else out of the car and pat people down as a precaution for police safety. When they’re patting an innocent passenger down, they feel some sort of shape that feels like a bomb or a little pipe or some sort of plastic bag with drugs and then the police then reach into the pocket and take the drugs out. That’s an illegal pat down if the police did not have reasonable articulable suspicion that that particular passenger was armed and dangerous. The remedy for the illegal pat down will be suppression of the drugs that were found immediately after they were felt by the pat down. That’s a very common police mistake and police don’t really care about that mistake because they want to adhere to police custom which is, to pat everybody down for police safety.
Police Cannot Conduct a Search Unless There’s Reasonable Articulable Suspension
The second most common police mistake is searching a portion of the vehicle whether it’d be a trunk or a glove compartment or a suitcase or container within the car where they don’t have probable cause to believe that there are drugs in the trunk or in the glove compartment or in a suitcase. The police may have reasonable articulable suspicion or probable cause that there are drugs somewhere else, for instance on one of the passengers but if they see a briefcase which has the name of the driver on it and the passenger is the only one who is the suspect, then the police say, “His briefcase was within the long reach and grasp of the passenger for whom I have reasonable articulable suspicion or probable cause of drugs activity, I am going to go ahead and search this briefcase”, and that is a misconception. The police do not have automatic right to search the briefcase that is clearly labeled as the driver’s briefcase.
A lot of times, police go into the trunk of a car too quickly because they think they can’t find drugs inside the passenger compartment of the car and they have probable cause to believe that the drugs are in the passenger compartment. They say to themselves, “Well, they’re not here in the passenger compartment, so I’m just going to search in trunk”. A lot of times, they are not allowed to go into the trunk and that is another common mistake of the police. These are all the different types of arguments to make to a prosecutor pretrial to try to convince the prosecutor to make a compromise or to dismiss the case. If the prosecutor is unwilling to do that, then we litigate these issues thoroughly and aggressively at a motions hearing before a judge to try to convince the judge to apply the exclusionary rule as a punishment to the police for their illegal activity.
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