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S. Huband, Esq.
S. Huband, Esq., Attorney
Category: Criminal Law
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4TH AMENDMENT RIGHT VIOLATED ON 6/18/2013. PLUS WAS ARRESTED

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4TH AMENDMENT RIGHT VIOLATED ON 6/18/2013. PLUS WAS ARRESTED AND CHARGES FILED.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  S. Huband, Esq. replied 1 year ago.
I'm sorry to hear about your troubles. I'd like to help, but I need more information.

Can you tell me about the facts? What happened that you believe was a violation of your 4th amendment rights? What were you charged with? Have you been to trial? Do you have specific questions about the situation I can answer?

Thanks for your assistance. I look forward to helping you.
Shuband
Customer: replied 1 year ago.

6/18/2013 OCEAN CITY MD (SENIOR WEEK). GAVE MY FRIENDS A RIDE BACK TO THEIR BEACH HOUSE IT WAS @ 10:30AM. WE MADE PLANS ON GOING OUT FOR BREAKFAST AND MINI GOLFING AFTER. THERE WAS 4 (MALES) AND 1 (FEMALE) IN MY CAR WHEN I ARRIVED AT THE HOUSE. I WAS DRIVING MY UNDERAGE FRIEND WAS IN THE FRONT PASSENGER SIDE AND MY 2 OTHER MALE FRIENDS AND MY GIRLFRIEND IN THE BACK SEAT. I PARKED IN THE ALLEY MADE SURE THERE WAS ROOM FOR TRAFFIC TO GET PAST. MY 3 MALE FRIENDS WENT INTO THE HOUSE TO GET THEIR MONEY AND BRUSH TEETH. I ALSO WENT IN BECAUSE I HAD TO USE THE BATHROOM. AS I WAS COMING BACK TO THE CAR I SEEN A (MALE) UNIFORMED BICYCLE PATROL OFFICER WITH HIS HEAD IN THE WINDOW TALKING TO MY GIRLFRIEND IN THE BACK SEAT. MY WINDOWS WERE DOWN. THE OFFICER ASKED WHY I WAS PARKED THERE SAID I WAS WAITING ON MY FRIENDS TO GET THEIR MONEY SO WE COULD GO FOR BREAKFAST. HE SAID OK JUST HURRY THEM UP BECAUSE YOU CANT BE PARKED HERE THEN HE LEFT. I WAS TEXTING THEM TO HURRY UP AND THEN A (FEMALE) UNIFORMED BICYCLE PATROL OFFICER APPROACHED MY CAR. NOT EVEN 30 SECONDS AFTER THE FIRST OFFICER. SHE CAME UP TO THE PASSENGER SIDE WINDOW ( BOOK BAG MY FRIEND LEFT ON THE FLOOR IN THE FRONT SEAT) SHE ASKED WHY WAS I BLOCKING THE ALLEY? I SAID I MADE SURE THERE WAS ROOM FOR TRAFFIC TO GET BY AND IM WAITING FOR MY FRIENDS TO COME OUT SO WE CAN LEAVE. SHE WALKED AWAY THEN CAME BACK SHE DID THAT ONE MORE TIME AND TOLD ME TO PULL IN THE PRIVATE DRIVEWAY THAT WAS IN FRONT OF MY CAR. SO I DID THEN SHE ADVISED ME AND MY BACK SEAT PASSENGER OUT OF THE CAR. ASKED WHY AND SHE SAID SHE SMELLED MARIJUANA AND IS GOING TO SEARCH MY PARENTS CAR. I WAS IN DISBELIEF BECAUSE THERE WAS NO POT SMOKING EVEN DONE YET BY ME OR MY OTHER PASSENGERS. THE OFFICER FIRST TOOK THE ASHTRAY THAT HAS A LID AND DUMPED THE CONTENTS. SHE FOUND TWO ROACHES IN THE ASH. THE WENT BACK IN THE CAR AND FOUND MY AFTER BREAKFAST HAND ROLLED BLUNT AND JOINT. SHE ASKED IF THEY WERE MINE AND I SAID YES. THE ROACHES WASNT THOUGH. LIKE I SAID ITS MY PARENTS CAR. I ALSO ADMITTED TO THE ROACHES TOO. THEN SHE PULLS THE BOOK BAG OUT AND SAID WHO DOES THIS BELONG TO? I SAID MY FRIEND THAT WENT INTO THE HOUSE AND THE BOOK BAG WAS NOT MINE. NEEDLESS TO SAY SHE FOUND A KNIFE THAT HAD A BUTTON ON THE END, AND WHEN DEPRESSED A SPRING INSIDE THE KNIFE ASSISTED THE BLADE TO OPEN AND LOCK POSITION. SHE BROUGHT IT OVER TO ME AND SAID LOOK WHAT I FOUND. TRYING TO PLACE IT IN MY HAND AND I SAID IM NOT TOUCHING THAT IT IS NOT MINE AND IM NOT GONNA PUT MY FINGERPRINTS ON THAT. AFTER SHE FOUND THE KNIFE SHE CALLED FOR THE VAN TO TAKE ME TO BOOKING. CHARGED WITH POSS. OF MARIJUANA LESS THEN 10G AND DANGEROUS WEAPON-CONCEAL. LIKE I SAID THERE WAS NO SMOKE COMING FROM THE VEHICLE NOR WAS I UNDER THE INFLUENCE AT THE TIME. SHE ASSUMED THERE WAS DEALING GOING ON AND WAS LOOKING FOR A NEEDLE IN A HAYSTACK. OH FORGOT TO MENTION THE FIRST OFFICER THAT CAME TO THE CAR WAS RIDING HIS BIKE PAST THE ALLEY AND STOPPED AND LOOKED AT ME LIKE WHAT HAPPENED I JUST SHRUGGED MY SHOULDERS AND HE SHOOK HIS HEAD. NOW THIS IS THE PUBLIC DEFENDERS STORY. I TRIED TO CONTACT HER AND LEFT SEVERAL MESSAGE AND NO RETURN CALL. WANTED TO GET THE FIRST OFFICER TO TESTIFY ON MY BEHALF AND MY GIRLFRIEND WAS MY OTHER WITNESS. I ALSO NEEDED TO KNOW IF I NEEDED TO BRING THE OWNER OF THE BOOK BAG TOO (I BROUGHT HIM TOO). THERE WAS NO REASON FOR THE WARRANTLESS SEARCH. THE KNIFE WASNT MINE. SO GOT TO THE HEARING 9/19/2013. SHE GAVE ME PAPERS TO READ AND SHE TOLD ME TO SIGN THEM. MY MOTHER AND I READ THEM AND IT WAS TO PLEAD GUILTY TO ALL CHARGES. MY MOM WANTED ME TO PLEAD NOT GUILTY AND THAT MADE THE PUB. DEF. ANGRY THEN SHE RIPPED MY PAPERS OUT OF MOMS HANDS AND SAID WELL THEN YOU ARE LOOKING AT JAIL TIME THEN. MY MOM SAID FOR WHAT? THE KNIFE ISNT HIS AND THE OWNER OF THE KNIFE IS IN THE COURTROOM. IF WE COULDVE GOTTEN THE FIRST OFFICER TO BE HERE TO TESTIFY.BECAUSE THERE WAS NO PROBABLE CAUSE TO SEARCH THE CAR I WASNT NOR HAD I THAT DAY YET SMOKED MARIJUANA. AS THE PUB. DEF. WAS STORMING BACK IN THE COURTROOM SHE ALSO SAID IF THAT WAS THE WAY I WAS GOING NOT GUILTY SHE WAS TELL THE JUDGE THAT WASNT HER RECOMMENDATION ALSO SAID I BETTER THINK ABOUT IT BECAUSE IM THE DEFENDANT.( TELLING MY MOM TO MIND HER OWN BUSINESS.) ALSO THE OFFICE WHO ARRESTED ME WASNT AT THE HEARING????

Expert:  S. Huband, Esq. replied 1 year ago.
Thanks so much for the update. Unfortunately, I'm away from my computer at this moment. I'll review your posting as soon as I am able and will respond to it then. Thanks for your patience.

Shuband
Expert:  S. Huband, Esq. replied 1 year ago.
Thanks for your patience.

You mentioned that you believe the search of your car was unconstitutional. That may or not be the case. Let's review why.

First, in order to seize a person, the police must have a reasonable suspicion that some sort of criminal activity is afoot. A "seizure" occurs when a police officer exercises his or her legal authority over a citizen (i.e. you or me) and the citizen does not reasonably believe that he can simply terminate the encounter and walk away.

Your car was parked in the alley way. If your car was parked in a "no parking" zone or was otherwise parked illegally, that qualifies as an act which would give the officer at least a reasonable suspicion to detain you briefly. That still doesn't give the officer a right to search your car, however.

The female officer ordered you to pull your car out of the street and into a private drive. That's clearly a seizure, but I think she had the legal authority to do that. She then ordered you and the passenger out of the car, but she can do that, too. The U.S. Supreme Court has ruled that an officer can order the driver out of the car without any sepatayte justification during a routine traffic stop, and that the same rule applies to passengers as well. So far it looks as though the female officer was acting properly.

This is where I think the officer's actions become questionable. She claims she smelled marijuana. If there was no burnt marijuana in the car, and no one had been smoking in the car, it's hard to believe she could smell a small, personal-use quantity of marijuana. It might be different if someone had been smoking in the car or there was an ounce or more of fresh marijuana; maybe she could really smell it then.

At any rate, this is the point in the encounter which potentially has a big impact on your defense. You (or your attorney) need to file a motion to suppress or exclude any evidence obtained as a result of the search. Your claim is that the officer could not have smelled what she claimed she smelled given the remarkably small quantity of marijuana which was found in the car. Thus, because she manufactured her claim, her search was not based on probable cause but rather was a pretextual search.

You could also call the first officer as a witness at your suppression hearing. He came by the car, was very near to the car, and yet he didn't "smell marijuana" like the second officer claims she did. Since the second officer came along 30 seconds after the first, this makes it less likely that the second officer is manufacturing her claim of smelling marijuana.

So, your argument is that, without probable cause to search, the search was illegal and violated your fourth amendment rights. Thus, any evidence the police obtained after the point of the illegal act should be suppressed or excluded from evidence as fruit of the poisonous tree. This evidence would be the marijuana, the knife, and your inculpatory statements to the officer.

If the judge decides that the officer is credible, however, and the judge believes that the officer actually did smell marijuana in the car, then the judge will probably decide that the search was legal. Thus, the evidence of the marijuana and the knife could be used at trial against you. (In this case, if there was probable cause to search the car for weed, the officer had the legal authority to search the book bag and find the knife.)

As for your statements to the officer, you don't mention whether you were read a Miranda warning (the warning of the right to remain silent etc.). A Miranda warning is only required when you are asked questions by the police while in custody. If you weren't in cuffs, or sitting in a squad car, or held at the police station, or held at gunpoint by the police, you weren't in custody. So, your statements probably cannot be suppressed or excluded if the judge believes the officer actually smelled marijuana and didn't just make that up.

So, that's the fourth amendment aspect of your case. It all really boils down to whether or not the judge believes the second officer smelled marijuana.

Finally, as to your public defender, I'm sorry you didn't have a good experience. Try contacting this person again and see if you can have a full conversation with her. Explain your side of the story, tell her what your concerns are, and her what you want to do. Her job is to give you advice and to recommend a course of action. However, it is YOUR choice whether you 1) want a trial or plea agreement, 2) want a judge or jury trial, and 3) want to testify or remain silent.

Remember you can always hire an attorney of your choosing. If you wish to do this, try the Maryland State Bar attorney referral service. Someone there should be able to help.

I hope my response has been helpful. If you have follow-up questions or concerns on this topic, please ask. Otherwise, please rate my answer positively so that I can receive credit for my work. Doing so will NOT cost you any additional fee.

Take care,
Shuband
S. Huband, Esq., Attorney
Category: Criminal Law
Satisfied Customers: 1283
Experience: Experienced and knowledgeable criminal defense attorney.
S. Huband, Esq. and 4 other Criminal Law Specialists are ready to help you
Expert:  S. Huband, Esq. replied 1 year ago.
Hello,

I was notified that you rated the answer I gave positively and that you generously applied a bonus payment for my efforts. Thank you so much. I am very pleased and gratified that I was able to help you. I sincerely hope the matter(s) we discussed turn out well for you.

Please ask for me in the future if you have additional questions or concerns. Again, thank you very much for the opportunity to assist you.

Take care,
Shuband

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