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i was charged with possession for sales during a "raid" of my property in error - they were at the wrong address but after the fact found methamphetamine at the property and charged me with possession for sales. The property is multi unit and the substances were found in the community laundry room. The case was brought before the superior court judge who dismissed the case - he said although he felt the officers did have probable cause there was insufficient evidence to prove i was a drug dealer. (which i am not/ was not) and that the substances must have been for personal use. He then approved a motion by the prosecutor for a lesser charge of misdemeanor possession of methamphetamine and it is scheduled for trial Oct. 27. The major concern i have is that A. the police were back tracking, corrupt, testimonially dishonest manufacturing track coverers and the initial preliminary hearing testimony of the Sr. Narcotics Officer on the scene was replete with contradictions, lies, paradox
State/Country relating to Question: California
hithank you for that information. what is your question, please?
The remainder of my statement was truncated by just answer. The shortened version is the misdemeanor court typically bypasses one's 'right' to a preliminary hearing and thus it is presumed to the unbeknownst jury that probable cause was established to substantiate the complaint. Well given that the possession for sales was dismissed and then the prosecutor motioned for felony possession which was downgraded to misdemeanor possession approved by the judge, my being prodded through the system is resulting in a presumption of established probable cause when the police had no probable cause, plain view, etc. They were admittedly at the wrong address and found substances after the fact. The sr. officer even admitted that upon reflection, the codefendant in the case was arrested illegally and she was sitting 5 feet from me. They claimed i had a bong which was in fact a gatorade bottle. How can i demand my right to a preliminary hearing?Is there case law? It can be dismissed again i feelRead more: http://www.justanswer.com/questions/2m3ly-charged-possession-sales-during?L=T#ixzz0SsIdEUWK
hi
you know this is a terrible travesty of justice. but i am going to have to opt out and allow another expert to work with you.
I feel like your answer is insincere or on the border of belittling with "a terrible travesty of justice". It may sound like a cliche storyline of a garden variety drug case - but without getting in to much great detail - those are the facts - as banal as they are. What is your basis for opting out of an answer after 20 years practicing law please, Sam?
Let me try to help you here.You certainly may try to contest the charges here either by judge or jury.The fact that the drugs were found in a common area and other facts that you have here may certainly go a long ways toward eroding the beyond a reasonable doubt evidentiary standard.You may well be able to create some doubt.The fact that they came for one thing yet found a totally different drug in a common area as opposed to your area in my mind creates gives you some good points for your defense.Certainly the best argument here is simply that these weren't your drugs.If others here had direct access and potential to plant or hide drugs that alone creates some real questions about whose they were.Also if this is a common area and say transients or stragglers might be attracted to it because of clothes in machines, etc again this creates issues for the prosecution.I do think this case has potential here.I guess you want to see what they offer you in terms of pleas versus trial.The problem in drug trials is the tendency of the public to sayoh drugs, meth, must be guilty here and not listen any further to the facts.Prejudging is your biggest enemy. But your lawyer here will give you honest advice having seen the evidence, knowing your town, the judge, and anything else and give you some honest advice.Ultimately you decide here.I am sorry that you had problems here earlier with the prior expert and I appreciate you waiting patiently for an answer.
Thank you for your response Ray. Well more specifically they came after one thing - marijuana of address a for named search warrant a and went to address b for said search warrant, arresting then after leaving the site upon being told they were at the wrong address they **came back** and suddenly found drugs in the community laundry room after searching it with my consent "under duress and protest" (the lead said I either sign an authorization form or he was going to to have the property seized. Also their reports all checked that the tape recorders were on (as required by the federal oversight into lapd corruption) then we get to the prelim and "what? we don't have any tape." bec/ they didn't want to illuminate the illegal and improper conduct. My main and zeroed in focused question is- what avenues of basis' based on law or case law can one apply in terms of a motion or demand to force the state to allow me a preliminary hearing at the misdemeanor level? Again, upon listening to the testimony solely provided by the lead officer, the judge dismissed the felony sales charge. The same basis' should be applied justly at the misdemeanor level. How do we legally enforce this right perhaps based on the precedent of the prior prelim? It's a silver dollar question. As for Sam - judge not lest ye...
You can try to challenge this at preliminary but the court may force you to trial here.To me in all honesty you might have a better chance at trial.This is so tainted here that if a jury heard all of this they might wonder what the?? I mean I would agree with you that this won't pass the smell test.It just sounds like a set up and probably was.That would be the first impression that I think anyone hearing this for the first time would say.so to me you have almost built in reasonable doubt.The problem with this as a preliminary issue is politically judges rarely totally dismiss charges like this.If the jury here finds you not guilty then the judge is off the hook politically.So you can try for another preliminary challenge but trial may be where you end up.
I understand the politically poised positions the judges take. The felony judge pandered and said the police were legally there (despite climbing a nine foot iron gate after walking up a 20 stair driveway with a no trespassing sign then after the gate climbing an additional 40 some odd stairs and going under a deck behind a 4th bungalow house to obtain their probable cause "in plain view from the sidewalk". Addiitionally the officers opened not one security metal door but a glass door a behind that at rifle point unnanounced and in silence with no warrant. The lead officer didn't recall "a second door" at the entrance point. Now, I understand i may have a better chance at trial - but the fact is the worst that can happen from preliminary is - then go to trial - then we have more evidentiary contradictions in the breech. Best case it is dismissed as the precedent prior at the felony level. Worst thing that can happen is the same circumstance. One only benefits by enforcing this right. So although I understand your notion of "you might have a better chance at trial" but the laws of probability sway in my favor with additional barrier of preliminary hearing in this case. Plus, trials can get expensive - as a side note. I know the officers will look unbelievably corrupt at trial - but a true warrior avoids conflict and the trial setting is a (another) setting beset with conflict. I would be most grateful and remunerating if we could find the legal basis for the (undeniable) motion for a preliminary hearing. To do less is lazy minded and increases one's chance of conviction rather than lower it. The goal is not to be convicted, therefore any action that increases the probability of goal achievement would be the most rational decision (to get hellenistic on you). This may be to esoteric but the fundamental inquiry remains unanswered...
If you want current cases here are some that deal with searches and dismissals.http://www.californiacriminallawyerblog.com/search_seizure_cases/
More information on point--this relates to the destroyed audio or other evidene that would help you.."
A skilled defense attorney can move to dismiss the charges on the based on lost or destroyed evidence on the ground that the intentional, bad-faith loss or destruction of material evidence by the prosecution deprived the defendant of due process of law contrary to the provisions of the Fourteenth Amendment to the United States Constitution, Article I, §15 of the California Constitution and the principles enunciated in California v. Trombetta(1984) 467 U.S. 479 and Arizona v. Youngblood (1988) 488 U.S. 51.
Determining what evidence is missing is like proving a negative; and that negative may be crucial to your case.
While the law does not impose a duty on the prosecution to collect evidence that might be beneficial to the defense, once collected, the prosecution and their agents have a duty to preserve material evidence and Due Process imposes on the prosecution a duty to preserve material, exculpatory evidence. (Arizona v Youngblood (1988) 488 US 51, 58; California v Trombetta (1984) 467 US 479, 488; In re Michael L. (1985) 39 Cal.3d 81; People v. Hogan (1982) 31 Cal.3d 815, 851). Further, the prosecution bears the ultimate responsibility to maintain the integrity of the evidence and to disclose all material evidence. With regard to this duty, the California Supreme Court warned in In re Ferguson (1971) 5 Cal.3d 525, 531:
"The search for truth is not served but hindered by the concealment of relevant and material evidence. Although our system of administering criminal justice is adversary in nature, a trial is not a game. Its ultimate goal is the ascertainment of truth, and where furtherance of the adversary system comes in conflict with the ultimate goal, the adversary system must give way to reasonable restraints designed to further that goal. Implementation of this policy requires recognition of a duty on the part of the prosecution to disclose evidence to the defense in appropriate cases."
You've spent a good amount of time on me - is there a particular case that is salient enough for your initial review to glean a basis for or procedure for requesting a prelim hearing? Can i just instruct my attorney to demand it or motion for it so long as there is some semblance of legality attached to the motion? Argh. I am thankful for your link. If you think this satisfies an "accept" - let me know. I'm new around here.
There are two directions.The last stuff I gave you relates to the lack of audio tapes or any other exculpatory evidence as grounds to suppress.The second ideda here is what you mentioned here about motion to uspress arguing the facts that they weren't there on a valid warrant--really this is what is probably best argument and it won the first round here partally and he should reargue it again for this charge as well.
Thank you. So argue we will. How does one motion or request or "demand" to present these valid arguments (the wrong address, etc) before the forum of preliminary (evidetiary) hearing to be heard my a magistrate, kindly?
You would raise this as motion to dismiss the charges and seek preliminary hearing like you did earlier.This is noew charge with new chances and new preliminary hearing on motions.You might actually file two here if you think you can make any argument over the lack of audio or other exculaptory evidence.And you are correct it is so much cheaper here to try preliminary dismissal.Good luck here..
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