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- in Constitutional Rights
- by Stephen Gustitis
Search and seizure has been the topic of discussion with several clients this month. Everything from automobile searches to mobile phone text messages. The issue is always the same . . . “did the police legally seize the evidence they now intend on using against my client?” Search and seizure law is a tremendously large and complex area of the law. It’s the stock-and-trade of any Bryan|College Station criminal defense lawyer. In fact, without a solid working knowledge of search and seizure jurisprudence a criminal defense lawyer is just about worthless.
I have a mental checklist as I work through any criminal charge search issue. First, did the police have sufficient legal reason to contact and stop my client. Typically, the police need “reasonable suspicion” to stop a person and continue an investigation. This is called an “investigatory” detention and typically does not implicate any search and seizure Fourth Amendment issues.
If an investigatory detention expands into a more significant limitation on my client’s freedom, my next question is whether the police had legally sufficient reason to do so. An increase in the length of the detention, or a more significant demonstration of police authority, may move a routine stop into a “custody” situation that now implicates the 4th Amendment (and the 5th). “Custody” in this context is a legal term of art and means the police have prevented my client’s freedom of movement in a significant way. This custody is now based upon a higher legal standard called probable cause. Furthermore, once in custody any interrogation by the police must be preceded by the reading of Miranda Rights and be tape recorded.
Before the police may search my client’s car, person, home, handbag, backpack, etc., they need probable cause or my client’s consent. Probable cause means the police have sufficient reason to believe the thing to be searched contains evidence associated with the commission of a crime. If the police don’t have probable cause to search they often use a technique to obtain my client’s consent. A voluntary consent eliminates the probable cause requirement. Consent searches can be devastating to the successful defense of criminal charges since the client has, unknowingly, eliminated a huge area of legal attack upon the police conduct. I’ve written here about what our legal responsibilities are when coming into contact with law enforcement. Consenting to a search is not one of them.
If you find yourself in a tangle with the police and were the target of a criminal investigation, you need a lawyer who’s an expert in 4th Amendment search and seizure jurisprudence. A bad search, or bad stop for that matter, can reap many rewards in the defense of your criminal case. In fact, it can be the difference between winning and losing. Make sure you hire someone who knows their stuff.
Stephen Gustitis is a criminal defense lawyer in Bryan-College Station. He is Board Certified in Criminal Law by the Texas Board of Legal Specialization. He is also a husband, father, and retired amateur bicycle racer.