A defendant was convicted of a misdemeanor. Now he is on appeal Pro se. The defendant , duing trial, filed motion to suppress evidence (an mj pipe) do to racial profiling. The judge determined there was not racial profiling. The defendant still believes there was. What kind of evidence would the defendant need to show the judge's decision on the motion to suppress evidence was a reversible error in this case?
Thanks for using Pearl.com. It will be my pleasure to assist you today.What state are you in?Did you have a judge trial or a jury trial?Why wasn't the motion to suppress evidence filed BEFORE trial?Thanks
This is Oklahoma. It was a trial by Judge. The motion was filed before trial (my mistake). If the judge had found racial profiling , as you know, the case would have been dismissed. I am trying to see if the defendant can use the judges decision of no racial profiling as an error. Or can defendant only use problems that occured during trial?
Thanks for the information.Title 22 of the Oklahoma Criminal Code of Procedure in pertinent part states as follows:
§22-34.3. Racial profiling prohibited.
A. For the purposes of this section, "racial profiling" means the detention, interdiction or other disparate treatment of an individual solely on the basis of the racial or ethnic status of such individual.
B. No officer of any municipal, county or state law enforcement agency shall engage in racial profiling.
C. The race or ethnicity of an individual shall not be the sole factor in determining the existence of Probable Cause to take into custody or to arrest an individual or in constituting a reasonable and articulable suspicion that an offense has been or is being committed so as to justify the detention of an individual or the investigatory stop of a motor vehicle.
D. A violation of this section shall be a Misdemeanor.
E. Every municipal, county, and state law enforcement agency shall adopt a detailed written policy that clearly defines the elements constituting racial profiling. Each agency's policy shall prohibit racial profiling based solely on an individual's race or ethnicity. The policy shall be available for public inspection during normal business hours.
F. If the investigation of a complaint of racial profiling reveals the officer was in direct violation of the law enforcement agency's written policy regarding racial profiling, the employing law enforcement agency shall take appropriate action consistent with applicable laws, rules, ordinances or policy.
At the Motion to Suppress Evidence, you would have had to prove the above. You would have had to use the statute and the written policies of the police agency to show that you were pulled over and/or arrested SOLEY on the basis of race.
You must file your Notice of Appeal within 10 days of your sentencing. Below is a link to the Oklahoma Supreme Court Legal Forms, specifically the forms necessary for appeal. You will need to specifically look at and file Form 13.4.
So long as your Motion to Suppress was filed before trial, then the issue may be preserved for appeal. Again, you will have to prove the elements provided in the beginning of this answer.
This information is ONLY INFORMATIONAL. It is NOT legal advice. If you wish, you may want to contact an attorney who specializes in appellate law. Below is a link to the Oklahoma Bar Association link on how to find an attorney. You can click on the drop down menu for "appellate" lawyer. If you wish, you can discuss the specific facts of your case with an attorney (sometimes for free or at a minimal cost), evaluate your options and decide how to proceed.
I hope you find this information useful. If you have additional questions, please ask.
Please remember to only rate my answer when you are satisfied with it. We work for Positive Ratings, so it would be appreciated if you would click on one of the top three ratings or one of the Smile Faces. IF you feel the need to click either of the two stars on the left, PLEASE STOP and REPLY TO ME VIA THE CONTINUE CONVERSATION button with the issue that you have. I will be happy to continue to further work with you and do everything I can to provide you with the service that you seek. Thank you. Good luck.
You said the issue may be preserved for appeal. The situation is the defendant believes he did prove his point based on the law that there was racial profiling. The judge disagreed with him. Will the appeal court automatically review the motion to suppress statements that were filed along with the hearing transcripts or will the defendant have to show some error based on the statutes you presented?
You will need to ask the appeals court to review the judge's decision regarding your Motion to Suppress. You must comply with the appellate court rules.Below is a link to the Oklahoma Appellate Court Rules. You should pay special attention to Section V. Also, you must file form 13.6. Below is a link to the form.http://www.okcca.net/online/rules/rulesrvr.jsp?r=102
Over 20 yrs experience in prosecution and defense work
DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.
The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).