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Why did the police officer stop me? Example of a Motion to Suppress under Penal Code Section 1538.5

Posted by Dmitry Gorin | Nov 27, 2007 | 0 Comments

When an officer approaches you on the street, or knocks on your door at home, does that mean you are not free to leave, and/or that your must allow admission into your home? There are no clear answers and Southern California Criminal Attorneys litigate, almost daily, difficult search and seizure motions by filing Motions to Suppress pursuant to Penal Code Section 1538.5If the situation is considered a "consentual encounter," under Search and Seizure caselaw interpreting the Fourth Amendment of the U.S. Constitution, then police officers do not need a reasonable basis or reason to speak to the person, i.e. they are just making "small talk" -- which means that the officer can come up to the person and begin speaking. Of course, if you follow this train of reasoning, the person can just walk away right? Can the person just shut the door in the officer's face? While in theory the answer to both questions is yes, how many times will police officers just let the person walk away, or stand having a door slammed? Probably never. If anything, the police officer will find an articulable basis to "detain" the person, to explain his belief that the person is involved in criminal activity. This reasonable basis is required to justify law enforcement's intrusion on the person's right to privacy under the U.S. Constitution. The greater the intrusion, the greater the need to justify the search and seizure under criminal constitutional law. Thus, police officers entering a person's home requires a much greater level of lawful justification, than detaining someone on the street.A recent court of appeal decision clarifies further for all criminal lawyers in Los Angeles - what is a "detention" (requiring justifying) under the Constitutional framework, as opposed to a consentual encouter (requiring none). The First District Court of Appear ruling states that a police officer Tagged as: probation and sentencing laws, violent crimes defense


Gary on February 19, 2008 at 6:36 p.m. wrote: randolph, I couldn't agree more. We need police to enforce the laws within the confines of the law, we need judges to ensure procedures are followed so rights are protected, and we jails to hold criminals for the duration of their sentence. I consider myself a conservative individual that understands the importance of laws but also want his freedoms protected. I don't want to see one letter of the constitution violated. This is a constitutional issue not an argument of guilt. The officer violated his rights. The officer acted outside his scope of responsibility, most of the comments I read support the officer because the individual was found be in possession. What you haven't read is the number of posts on this site where the individual was guilty of no crime and the police seized them and then let them go. When it happens to you maybe then you will see the problem with the case above. Some people respect, submit and forget what the police do outside the scope of their duties, just because they aren?t in trouble and are relieved. They go on their marry way never realizing their constitutional rights were violated. Only recently my city law enforcement has started to pull people over without cause, arguable (my opinion: the reason I believe is to catch drunk drivers). I believe this because, I have three college aged children and a good friend who have been pulled over a combined total of six times in the last three months, always in the evening hours. Every time they were questioned and released with no traffic infraction being mentioned. When my children asked why they were pulled over they received answers like: 'You fit the description of someone we are looking for,' 'You're wearing the same type of cloths of someone we are looking for.' 'There have been a lot of fires on this streets so we are stopping cars,' 'You were flying around that corner (not sure how the code defines this one but okay), 20 minutes after getting pulled over, 'Do you know a Lee Bailey?' 'You don't have tags but I see your registration in the window, do you have anything illegal in your car? Can I check?' Both he and a friend were searched, neither has a criminal history and are clean cut young men, not that those type don't commit crimes. (Those were the comments from different officers) A Sgt pulled up and apologized for the inconvenience and sent them on their way. Some back ground, my children are college aged with full time jobs and two are also full time students. My children are what you might call 'straight lace kids.' I raised them to be respectful of law enforcement and those in authority over them. So I ask, do you justify all the officers that pulled my children over? They didn?t have anything illegal and weren?t doing anything illegal. The outcome was different but arguably the precedure is the same, an officer has a hunch. I firmly believe my children?s rights and those of Garry's as well under the 4th amendment were violated. These types of actions are unconstitutional. Police need to remember they are servants of the people within the confines of the law and a lot already do but some don't. I have since educated my children on how to handle searches 'without cause' politely and respectfully, while getting as much information as they can. The ends do not justify the means. randolph on February 15, 2008 at 11:22 p.m. wrote: All who respond are thoughtful, intelligent people. I am also thoughtful and intelligent. Some comments I read seem to be the result of thought without pondering the many scenarios possible with unchecked police power. I am not a cop-hater, but police 'go too far' every day. One comment even went so far as to advocate conviction, even if there is illegally obtained evidence...think about what you are advocating! People who are 'set free' do not necessarily commit more crime, though Garry may well have. Do we convict in an uneven fashion based upon this precept? I side with the person who would 'shit their pants.' Supppose you are searched, but you have no contraband; do you still want this rousting just because an officer 'knows he can?' For goodness sake, the very system of a detached, neutral magistrate is exactly the mechanism in place to prevent an officer from being a one-man judication clearinghouse. Finally, police have access to proper procedural information, just like you and I. Amanda Hester on December 14, 2007 at 11:05 p.m. wrote: Once again we find ourselves talking not about whether the suspect committed a crime adn should be punished for it but about whether the way he was caught was a violation of his rights. While noone would agree that we want our rights violated, none of us would agree that a criminal should be freed because he felt he could not walk away from an officer. If the officer had reason to believe that he needed to step out of his car and approach Garry than Garry was probably doing something that warranted it. If Garry were not already on parole he would not have been searched, and had he not had cocaine, he would not have gone to jail. It was his actions that led him to jail, not the officers. If he feels he should be let free because an officer approached him in a brash manner he is mistaking what our justice system is in place for. Athar Mikhail on December 13, 2007 at 3:55 a.m. wrote: I agree with the judge Kavita Karode on December 7, 2007 at 8:44 p.m. wrote: While I think that the constitutional rights are very important, this exact situation is very similar to the example that Dwyer used for the issue of hypertechnicality in the six deadly sins of the American jury trial system. I think in the issue of Garry, his rights were arguably violated by the officer but the officer had reasonable belief to think that Garry was guilty of something because he seemed nervous and he was hanging out in the seedy, drug-saturated part of town. At the end of the day, I think that if an officer does not have permission to search someone, but they end up doing so and finding something that can be punishable in court, the matter of whether or not the evidence is found lawfully or not, the issue remains the same that the Garry was guilty of having cocaine. If evidence attained unlawfully by an officer is always released, it is like letting a criminal get away and making the streets that much more dangerous Bahar Sodaify on December 7, 2007 at 3:22 p.m. wrote: Police officers should be able to question citizens only if they have probably cause. Otherwise, the officers would be hindering citizens rights to privacy. Additionally, the first amendment states the right to free speech. Conversely, we can also abstain from exercising that right. However, in Gary's case, the physical behavior of the officer created an anxious situation for Gary, thus, causing him to forget about his rights. Personally, if I had a police officer rushing towards me with a flash light I would be too nervous to even remember my name, let alone my constitutional rights. Moreover, the officer did not have sufficient cause to make an arrest. If the officer is suspicious about a situation or person, he or she should further investigate the situation before detaining any citizens. Although police officers have more authority then the average citizen, they should not be allowed to abuse their power. Steven (Matt) Gibson on December 5, 2007 at 11:39 p.m. wrote: The expansion of suppression of evidence is a further example to back up Pizzi's position that our criminal justice ssytem is headed in a downward spiral. Its true that few people will think of their right to say no to a police officer and that sometimes this can lead to escalation of what would be normally a non-issue. Nonetheless, we have the right, and it seems those who take advantage of it almost exclusively are the guilty. However I don't see where this officer determined that there was probable cause to arrest the man and then search him. Being on parole hardly seems like it would stand up as a reason, and for a man to be rushed at simply for being in a bad neighborhood furthers an us versus them mentality with the poor communities and the police. Someone should not be arrested simply for being in a bad neighborhood and looking scared when an officer shines a light on them and rushes toward them. Who wouldn't be scared in that situation; forget nervous, I would shit my pants. Sam Rosenblum on December 5, 2007 at 8:20 p.m. wrote: Obviously, search and seizure policy is a very tricky subject. On one hand, it is easy to say that the bottom line in this case should be the fact that Garry did, in fact, have contraband (cocaine base) on his person. However, what if he would not have been found to be violating any law or his parole? Could Gary then have sued the city or county for violating his constitutional rights? In this case, the police officer claimed that his Whitney Sloan on December 4, 2007 at 6:18 p.m. wrote: This is definitely a tricky balance: I can see how strong arguments could be made for both sides. On one hand, Constitutional Rights are extremely important in preventing Government oppression...on the other hand, procedural gray areas shouldn't be invalidating a situation where there's clear cut criminal evidence. The exclusionary rule prevents illegally obtained evidence from being presented in court. I understand, and agree with, the idea that we have to have some method of discouraging law enforcement from illegally obtaining evidence. However, I would argue that police should be given slightly more leeway in determining what justifies a detention or search and seizure. It is unreasonable to expect all field situations to lend themselves to black and white, 'by the book' techniques of ascertaining whether or not a suspect is worth pursuing. In Crutcher's case, I believe he acted completely appropriately under the circumstances. He didn't force his way into a house, he didn't use undue physical force, and he didn't coerce Garry into giving him information. A little flashlight intimidation is not grounds for deeming the interaction 'unconstitutional', and it certainly doesn't warrant overturning Garry's conviction. Gideon Goei on December 4, 2007 at 2:07 p.m. wrote: I believe that Garry's conviction was justice. I do not believe a spot light is equivalent to being 'detained'. In my personal life, I have had a spotlight shined on me by a police officer; however, the officer just told us to move on. I don't believe that to be an intrusion to my privacy. I was not where i was suppose to be and the police officer was just keeping the community safe. Just like Garry, he was acting suspicious and the police officer had the right to ask questions. However, since Garry was probably not affluent with the law, he allows the officer to search him (asking questions). All Garry needed was more education on law. However, this just proves that the system is correct. Garry was in possession of the drugs and the officer caught him. Luci Marzola on November 30, 2007 at 9:51 p.m. wrote: I heard another fascinating story in this subject recently. A woman is holding seminars for illegal immigrants explaining to them their rights while in America. Key to this is their non-obligation to open the door when an officer knocks. Their lack of knowledge of this right has been taken advantage of by immigration officers who will drop by without a warrant because of a phone tip. If more illegal immigrants learn of this right, it may become more difficult for them to do this. Nona Niknam on November 30, 2007 at 3:35 a.m. wrote: I am very much satisfied with the decision that the court made in convicting Garry. After all, we should seek to eliminate crime and create a healthy functioning society; this should be our ultimate goal in the legal system. However, the means of approaching our goal should be carefully monitored. Police officers are meant to protect the society and create peace but in many cases they have misused this power. Shining a flash light and quickly approaching a person in the street could cause fear even if the person was not guilty of committing a crime. If the police officers are so confident that someone is being suspicious they don?t need to stimulate their fear in order to reassure themselves about the decision they have made. Again, I am glad that Garry was put away but I do believe that officers need to follow the constitution that gives every single human being their right to privacy. I was on my way to pick up my friend from the airport and I got pulled over for a random car check by an officer in charge. I wasn?t carrying anything nor I had done anything wrong but the way he talked to me and approached me I got so scared that I kept on thinking if I did have anything suspicious in my car. I have never even carried alcohol in my car but just the way he was made me wonder if I did have anything on me. He told me to pop my trunk and after he was done he came to my window and put his head half way through and took a close look inside my car. At this point, I was shaking and I had totally lost the excitement of picking up y friend from the airport. My car had ran out of battery and I had jumper cables on the passenger seat in my car from a few days ago. I was too lazy to put them away; He then pointed at the jumper cables and said ?what are those?? in a very shocked and angry voice. I was thinking to myself oh my god maybe people make bombs or something from this and I was freaking out. After the whole check up I was so shocked of how uncomfortable the police officer made me feel and I hadn?t even done anything. Therefore, after that day I DO believe that police officers can abuse their powers in an unjustified manner Raul Perez on November 29, 2007 at 10:39 p.m. wrote: I understand that some people might think that a police officer flashing his light at you and rushing you at the same time might not seem like a big deal, but the bottom line is that unless you have ever experienced something like it then you won't understand it. I personally have never done anything wrong, but whenever a police officer stops me I feel powerless. You are under their control, and anything you do can be looked at as a reason for an officer to do whatever they want to you. In this case I don't mind the technical/procedure aspect of it, because I feel that if no procedure existed then police would do anything they would want (as if they already don't). We, as citizens, need some type of protection/legal rights, because police officers can sometimes take things too far. Meghan Schoen on November 29, 2007 at 10:06 p.m. wrote: Reading this article made me extremely frustrated because it further illuminates our obsession with procedure. While I do think it is important to protect citizens Jade Machado on November 29, 2007 at 9:39 p.m. wrote: I believe that the judge ruled correctly when he chose not to suppress the evidence. In my opinion, US courts should treat search and seizure rules like they do in Canada. The Canadian jury trial system takes the severity of the crime that the defendant committed into account when the judge is deciding whether or not to surpress evidence that was collected without a warrant. If a person has a small amount of drugs in their possession, the evidence will likely be surpressed in court. However, if the police officer finds a large amount of drugs or the defendant has committed a serious crime the evidence will be used in court to help convict the defendant. I believe that this system is appropriate because it helps keep dangerous criminals off the street when there is concrete evidence framing them. The police officer performing the search and seizure without a warrant was likely acting in good faith and in the best interest of the community. The Canadian interpretation also prevents police from abusing their power and searching any person they feel like, without probable cause. If the US system interpreted the search and seizure law in the Canadian manner, it would lead to better evidence available at trial as well as more accurate jury findings. Rya Meyers on November 29, 2007 at 5:19 p.m. wrote: I understand and appreciate that search and seizure rules are in place to protect the individual. At the same time, there must be a balance between protecting the individual and protecting the community, and I belive this balance is weighted too much for the individual for search and seizure laws. The details of search and seizure are admittedly extremely case-specific. No matter how many rules we impose, there will always be some degree of common sense necessary in evaluating each siutation. This must be accounted for. We cannot state a bunch of rules for police officers which (a) are impossible to remember and (b) are incabable of providing a step-by-step instruction for every situation and expect to analyze and scrutinize the process in detail. When we want police officers try to find illegal activity but require as little contact with the suspect as possible, we have to allow the court to decide if the balance achieved was actually an intrusion on individual rights, or if the truthfinding was logically justified. Common sense and human reason must be included in situations that are varying and ambiguous. Canada's consideration of whether the officer was acting in good faith, the reliability of the evidence that resulted, the seriousness of the crime, and the importance of the evidence to the prosecution does provide an element of common sense in the case that can account for the ambiguity of search and seizure situations. A problem exists when the court orders the obvious and straightforward truth to be ignored due to a technicality. This proves that our focus is NOT on the finding of truth, but on procedure. More poetically, it is on the individual, but as far as I'm concerned, once an individual is found guilty beyond a reasonable doubt, the evidence of truth should not be discounted. Elizabeth Lumpkin on November 29, 2007 at 3:33 a.m. wrote: I agree that police officials' presence alone is inimidating, even without a spotlight or rapid approach. Being in the path of a spotlight is disorienting and a rapid approach by an officer is disconcerting for any citizen. While one may argue that the defendant seemed nervous because he knew he was violating a law, it is understandable that a person with a previous criminal record may feel especially uneasy around police officials even if they are not currently nor have been connected to any crime since their original offense. According to previous interpretations of fourth amendment rights in related cases, I believe the constitutional rights of the defendant were violated in this instance. However, I do not necessarily agree with the way the exclcusionary rule has affected the effectiveness of law enforcement. Fourth amendment rights are meant to serve as protection for citizens against over-reaching police authority. Without such rights, police could more overtly utilize racial profiling or other prejudices to make random and unqualified stops or detainments. While these rights are meant to deter police from invading people's privacy or right to be let alone, they appear to deter obstruction of police's good faith work more often than unconstituional police action. Until the criteria for 'reasonable suspicion,' 'probable cause,' and legal search and seizure are more explicitly defined by lawmakers and judges, police behavior will not be affected. I suggest that with minor clarification, the exclusionary rule, which excludes case evidence that was collected in such a way that it violates the defendant's rights, can more efficiently and effectively balance public safety with individual rights to privacy and peace. Rather than the public versus private sphere being a deciding factor in the constitutionality of a police officials' conduct, the following factors should be considered: whether the police officer was acting in good faith, the reliability of the evidence that resulted, the seriousness of the crime, and the importance of the evidence to the prosecution. By incorporating these criteria, the interests of the public and justice will be more appropriately served. Kyle Reilly on November 29, 2007 at 1:01 a.m. wrote: Unfortunately, we here in the United States have to knit pick rules and follow procedure because of the type of society we live in. Argumentation is very important to Americans as we always think that we are right. While both arguments to make sense, we need to decide what is more important, implementing a more holistic approach that allows for officers and jury members to use common sense, or we should not and stick solely to procedure and protocol. If we do not stick to procedure and use holistic approaches, then people may think that another person is being favored while they were not. From this, accusations of discrimination and prejudice occur. However, the counterpoint is that being so 'cut and dry' is unfair. In relation to one of the readings in the first text in class, a female was arrested because she had 1 ounce more of an illegal substance. However small it is and in the big picture it really wasn't much more, than one ounce almost made her sentence 20 times longer. In America, people will do whatever they have to in order to prove that they were innocent and the police officer was wrong. Sadly, we don't care about the truth: We care about who can make a better argument. -Kyle Reilly Mattie Varner on November 27, 2007 at 5:32 p.m. wrote: It is amazing to me that something so minor, such as the use of a spotlight and the pace of the police officer's approach, could be so scrutinized and then be used to determine the outcome of the trial decision. I do agree that the way the officer approached Garry did not allow him any leeway in answering, but I thought that the case would have focused more on why the officer decided to stop him at all (he was just standing by a car) rather than how he stopped him. Kate Monson on November 27, 2007 at 1:44 p.m. wrote: This case is yet another demonstration of our legal system Kelsey Kernstine on November 27, 2007 at 1:05 p.m. wrote: I am glad the evidence was not suppressed and it was used to convict Garry. I feel it is obvious that Garry is just trying to get out of the situation by saying that a detention occurred when the police officer shined the light and came towards him by saying it was intimidating. I am sure that if Garry is selling cocaine in these drug and high-crime areas, he has been in much more intimidating situations. I think it must be difficult for police officers to know when they can search a person and when they cannot. There are so many rules and procedures. This such example is similar to the lady who was found to have sixty-eight marijuana plants in her home. Or the man who was searched for robbing houses while waiting at the bus stop in Pizzi Mai Hong on November 27, 2007 at 5:16 a.m. wrote: Even though I would overturn the decision and rule to supress the evidence, I don't feel solid about the ruling. This is another example of how much emphasis we place on procedure. I think sometimes the end justifies the means, and if another drug addict is taken off the streets, doesn't this benefit both the community and the addict? However, if the judge didn't dismiss the case, police officers would think its okay to approach everyone that way, and maintaining people's privacy is more important. Plus, I don't believe the officer's actions allowed Garry to decline talking to the officer.

About the Author

Dmitry Gorin

Dmitry Gorin is a licensed attorney, who has been involved in criminal trial work and pretrial litigation since 1994. Before becoming partner in Eisner Gorin LLP, Mr. Gorin was a Senior Deputy District Attorney in Los Angeles Courts for more than ten years. As a criminal tri...


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