Sacramento Criminal Defense Lawyer Blog

Among the most common interactions between citizens and police are traffic stops. Many of these are straightforward: a driver is speeding or doesn't heed a traffic signal and receives a citation from a police, sheriff, or CHP officer. Though the driver is irritated and out a few hundred dollars, nothing more serious results.

Some stops go beyond this, though, with charges of more serious crimes. This is where knowledge of probable cause and rules of search and seizure is so important.

Let's say that while driving home one night you're pulled over by your local police. Because of constitutional protections, police can't pull you over, detain you, or question you just because they feel like it. For an officer to initiate a traffic stop, he has to have probable cause, or some evidence that a crime has been, or is being, committed. (See our October 28 post for a general discussion of probable cause.) That means that he has to see you committing a traffic violation - e.g., driving too fast, weaving, rolling through a stop sign - or observe that some equipment on your car, like a brake light, isn't working.

Assume that the police do have probable cause to pull you over - your left front headlight is out - and during the course of this traffic stop, the officer asks for permission to search the car. Do you have to say yes? The short answer is, NO, and we advise clients to politely but clearly state something like, "I do not give my consent to a search of my vehicle." When police lack probable cause to search your vehicle, they must let you go on your way. Moreover, the officer is not allowed to hold your refusal against you.

Under some circumstances, though, police may conduct a vehicle search without your permission and without a warrant.

Though the Fourth Amendment appears to require that police obtain a warrant to conduct a search, the reality is not so simple. A traffic stop is one of those times when police may, depending on the circumstances, conduct a warrantless search.

The law is complex and ever changing on this issue, but there are some key guidelines to keep in mind. In Carroll v. United States (1925) the U.S. Supreme Court established the principle that police may conduct warrantless searches of motor vehicles if probable cause exists that evidence of a crime is present. The justification for this is that since motor vehicles are mobile, evidence could be carried away and disposed of if police were required to go off and ask a judge for a warrant. In California v. Acevedo (1991), the Court extended the scope of searches to include containers in a vehicle, again because the evidence in the container could be driven away and disposed of. Some limits on warrantless searches were articulated by the Court in Arizona v. Gant (2009) when it ruled that once a person has been arrested and moved away from the vehicle, police may not initiate a search unless that search pertains to evidence related to the crime for which the person was arrested. (See our detailed discussion of Arizona v. Gant in our August 23 post.)

The principles to keep in mind are (1) any warrantless search of a vehicle requires probable cause, and (2) without probable cause police must obtain your permission to conduct a search.

If you have questions or concerns about a traffic stop conducted by the police, sheriff, or CHP, call the Law Office of Nancy King.

The previous post described the process when someone is charged with a misdemeanor. Today's post reviews the process for a felony charge. Though the basic outline is the same, some important steps are added since felonies constitute more serious offenses and carry the possibility of state prison terms of 16 months or longer, a combination of probation plus up to one year in county jail, stiffer fines, and in extreme cases even the death penalty. Examples of felonies include drug possession and distribution, sexual assault, aggravated assault, felony DUI, grand theft, arson, and homicide.

The felony process:

Arrest: This occurs after law enforcement has sufficient evidence that a crime has been committed. In some instances police will issue an arrest warrant after conducting an investigation. In others, police will make an arrest as a result of evidence that comes before them in the field; the incident reports are then submitted to the district attorney's office for filing of a criminal "complaint." In still other cases, the police do not make an arrest but instead submit the investigation to the district attorney's office, which will then request an arrest warrant after filing a complaint.

First Arraignment: The defendant is brought before a judge to hear the charges - in the form of the complaint - and to enter a plea of guilty or not guilty. Silence by the defendant is interpreted as a not guilty plea. The judge ensures that the defendant knows his/her constitutional rights, such as the right to legal counsel and trial by jury. If the defendant is in custody, bail is set.

Preliminary Hearing: This must occur within 10 court days of the first arraignment unless "time is waived" by the defense [see explanation below]. The preliminary hearing requires the judge to determine whether sufficient evidence exists to maintain the criminal charges against the defendant and continue to the trial phase. While the standard used at trial is guilt beyond a reasonable doubt, the standard at the "prelim" is probable cause. The prosecution calls witnesses and presents evidence in an attempt to convince the judge that there is good reason to believe that a crime was committed and that the defendant committed it. The defense attorney may cross-examine the prosecution's witnesses and call her own witnesses and present evidence to challenge the charges. There is no jury at the prelim; the judge makes the final ruling whether the case should move forward as a felony, be recharged as a misdemeanor, or be dismissed altogether.

Waiving time: The defense frequently waives time between the arraignment and the preliminary hearing, meaning that the prelim may be scheduled later than 10 court days after the arraignment. This gives the defense attorney time to conduct an investigation, gather information, and negotiate with the district attorney.

Second Arraignment: After the preliminary hearing the district attorney files what's called an Information. The defendant is again brought before the judge to be arraigned on the Information, to hear the charges, and to enter a plea of guilty or not guilty.

Continue reading "Steps in the Criminal Justice Process: Felonies" »

Crimes are divided into three categories: infractions, misdemeanors, and felonies. (See our September 21 post for a detailed description of each of these.) Though each is dealt with according to the same general rules as it winds its way through the criminal justice system, more severe crimes follow a more complex and lengthy path.

Infractions like traffic tickets are pretty simple. Since no arrest is made, people cited for infractions can either pay the fine or contest the citation in court. Generally, defense lawyers and prosecutors are not involved. Instead, a judge handles review of the matter, determines whether the infraction was properly issued, and sets appropriate fines, if any are necessary.

Misdemeanors and felonies, because the potential penalties are more severe, involve more people and have more stages before a final decision - or verdict - is made. Today's post outlines the misdemeanor process. Our next post will review the felony process.

In each of these processes, a wide variety of people are involved: judges from the judicial branch of government; police/sheriff/CHP, prosecutors, and probation officers from the executive branch; defense attorneys; jurors. All play a different role as the allegation is reviewed and determination of guilt or innocence is made.

Misdemeanors - such as petty theft, reckless driving, first time DUI, simple assault and battery, possession of less than one once of marijuana, and under age drinking - carry penalties of up to one year in county jail, fines of up to $1000, counseling, and/or work project.

These are the stages in the misdemeanor process:

Arrest: This occurs after law enforcement has sufficient evidence that a crime has been committed. In some instances police will issue an arrest warrant after conducting an investigation; in others, police will make an arrest as a result of evidence that comes before them in the field (e.g., they see someone selling drugs or committing a battery). The incident reports are then submitted to the district attorney's office for filing of a criminal "complaint."

Arraignment: The defendant is brought before a judge to hear the charges - in the form of the complaint - and to enter a plea of guilty or not guilty. Silence by the defendant is interpreted as a not guilty plea. The judge ensures that the defendant knows his/her constitutional rights, such as the right to legal counsel. Bail may be set, though misdemeanors generally have low bail requirements; often defendants are released on their own recognizance.

Continue reading "Steps in the Criminal Justice Process: Misdemeanors" »

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. - Fourth Amendment to the Constitution of the United States

Probable cause is among the most important legal protections U.S. citizens have against the exercise of government power. It is provided through the 4th Amendment because governments at all levels- national, state, and local - have great resources at their disposal to monitor people's activities, search their belongings, invade their residences, and deprive them of their liberty by arresting and jailing them. Citizens rely on the 4th Amendment to protect their privacy from government intrusion and their possessions from government seizure.

While the language of the 4th Amendment focuses on issuance of search warrants, probable cause comes into play in a variety of circumstances. One of the most common is when a police officer in the field suspects someone of engaging in criminal activity and must decide if probable cause exists to make an arrest.

Different definitions of probable cause have been articulated over the years, but they boil down to this: Can a reasonable person deduce from the evidence at hand that a crime has been or is being committed. Though similar to the notion of reasonable suspicion, which pertains to brief detention and questioning by police, probable cause is a more demanding standard, requiring more evidence and greater suspicion of wrongdoing. (See the October 22 post for a discussion of reasonable suspicion)

The difference between probable cause and reasonable suspicion in questioning and arrest can be illustrated this way. Let's say there's been a robbery at a local electronics store. Police may briefly detain and question a person if he is driving a car matching the description of a vehicle seen driving away at high speed from the store at the time of the robbery. Reasonable suspicion is satisfied. But more is needed for probable cause to make an arrest. One way would be for police to verify ownership of the car. If it is not registered to the person driving it, that is a step toward meeting the standard of probable cause. It doesn't prove guilt, but it certainly heightens suspicion. Next, police might look to the behavior of the person driving the car. If that person can't explain clearly where he's been or where's he's going, probable cause is closer to being met. Police, in this example, might also see boxes of what appear to be cell phones and Blu-ray disk players in the back seat. These facts taken together would most likely be enough to satisfy the standard of probable cause and allow police to make an arrest. It doesn't mean that the suspect is guilty; it means that sufficient evidence exists for the government to begin the process of filing formal criminal charges.

Continue reading "Probable Cause" »