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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 26688
Experience:  Began practicing law in 1992
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A routine stop to Wal-Mart turned into a nightmare. My husband

Resolved Question:

A routine stop to Wal-Mart turned into a nightmare. My husband was approached by a police office that asked him why he was standing next to two vehicles, one being a 2004 Durango and the other a 2005 Chrysler 300. He informed them that he was watching our two children that were in the back seat of my vehicle and going back and forth to his vehicle. The office never read his Miranda Rights to him, but did place handcuffs on him. I was informed the they received a call that he appeared to be attempting to steal a vehicle. Not once was he given the option to allow a search of my 2005 Chrysler but the search was conducted. I also has a 9 mm handgun that was in my vehicle and registered to me. They claim to have found the weapon concealed on my husband, who had only moved the gun from the vehicle just moments before the cop began to question him. When I approached my vehicle, I was informed that my husband was not under arrest and he would be released. This then became obvious that he was not going to be released when he was walked toward the back of the police car. The office then conducted a third frisking of my husband. During which my husband was on the side of the car. I watched as this office very forcedly grab my husband from the penis to his buttock, causing my husband pants to show a imprint of his private area. When my husband asked why this was being done for the third time, the officers response to him was he is checking for drugs due to my husband having felonies from when he was a teenager. The officer then instructed my husband to stand a particular why only to place him in the police squad car. My husband tried repeatedly to informed him of his disability with is back and knee. The officer then proceed to threat my husband by saying and I quote, " you can make this easy or hard this is your choice, I can arrest your wife for issuing a 9mm to a convicted felon and have your children locked up." I advised my husband to do the best he can and not to make a fuss about the discomfort that was being place upon him. I advice the officer that my husband was allow to ensure to access both cars being that they did in fact belong to me and our children was in one car. The officers then advice my husband that they were talking him down to the police station but again never read him his right. As a US Citizen without any priors, I feel that this was a racial profiling and that this would never have taking place had we not been two young African Americans that purchases two decent vehicles. I need to know what rights I have now that my husband has been arrested in what I would strongly believe is a racial profiling.
Submitted: 8 months ago.
Category: Legal
Expert:  Dwayne B. replied 8 months ago.

Dwayne B. :

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification.

Dwayne B. :

I need you to be a little more specific in your question(s) if you could. When we answer general ones like "what are my rights" we have to give general answers and, invariably, the customer responds with "I already knew that". This type of forum works better if you ask specific questions so we know exactly what you are looking for.

Customer :

Is there something I can do to get my husband released and to have this dropped.

Dwayne B. :

There is really nothing you can do other than hire an attorney for him. Since you aren't an attorney (I assume) then you aren't allowed to file any papers on his behalf or represent him in any way.

Dwayne B. :

What was he charged with?

Customer :

Possessing a concealed weapon and possession a fireman by a felon

Dwayne B. :

Your testimony will be important of course because you can testify that he didn't know about the gun and didn't possess it.

Dwayne B. :

They are just assuming he will plead to it.

Dwayne B. :

You are likely right about it being based on race and there is at least a reasonable chance the lawyer can get the evidence suppressed since they didn't have probable cause to question him and take him into custody.

Customer :

if he doesn't plead to this will this give him the option to have this dropped

Dwayne B. :

They're not likely to drop it unless the judge suppresses the evidence. Very, very few cases are dismissed.

Customer :

with the Miranda rights, I thought that a person had to have this read to them if they are placed in handcuffs.

Customer :

so there is a strong chance that this will backfire. As the most what is he looking at time wise

Dwayne B. :

They are supposed to but all that the failure to give the Miranda rights means is that any statements given after that point cannot be used as evidence.

Customer :

can the illegal search be thrown out or is this not possible.

Dwayne B. :

let me check on the punishment range. Be right back

Customer :

ok

Dwayne B. :

It's a class G felony which can range from 8 to 31 months sentence.

Dwayne B. :

It is possible for the illegal search to be thrown out.

Customer :

so the if the search is thrown out the evidence will have to go with it right

Dwayne B. :

Yes, that's correct.

Customer :

he was frisked three times. one in front of the car camera and twice outside of the car camera

Customer :

now can any of my statements be used being that I was not advised the he would be arrested

Dwayne B. :

Yes, your statements could still be used. There is no requirement that they advise you that he was going to be arrested.

Customer :

so my defense would be to denie

Dwayne B. :

Yes, and to claim a spousal privilege. The lawyer who represents your husband will need to examine that carefully and see what was recorded and what was not.

Customer :

being that I advise the officer that my 2 year old was in the car and did not want to run the risk of her getting a hold on this weapon, will they retailant with charges of child indangerment?

Customer :

I don't want to lose my babies, they mean very thing to me

Dwayne B. :

I don;t think it is likely they will charge you with child endangerment based on the gun being in the car.

Dwayne B. :

At least i've never seen it done.

Customer :

do not get me wrong my weapon is always placed in the glove compartment

Customer :

I was informed that I cannot have my weapon in the compartment without a permit

Dwayne B. :

I can't comment on that issue, I'm not familiar with that section of the law. I don't believe it is correct but I am not positive and it can vary by city and county.

Customer :

okay. now if this case if thrown out can I go after the police or walmart for racial profiling?

Dwayne B. :

He can. Since you weren't arrested you couldn't.

Customer :

Okay. Being that we are on a fixed income would you suggest we go with a free legal aid because we definitely don't want a PR

Customer :

free legal aid attorney

Dwayne B. :

Legal Aid usually doesn't represent criminal cases, that is usually done by the court appointed attorneys.

Customer :

so we would have to place our trust in a PR or pay for representation

Dwayne B. :

It's always a better idea to hire an attorney if you can but if not then the only choice is using a court appointed one.

Dwayne B. :

Yes. Many public defenders are very good but some aren't. You take your chances if you don't hire your own.

Customer :

Can he choose his PR

Dwayne B. :

No, the judges don't let a person choose which defender they want. They are usually appointed on a rotating basis.

Customer :

not good. How would you set up a attorney for payment. Do you think its possible to do a down payment and pay off over time?

Dwayne B. :

Some attorneys will allow a payment plan. The best thing to do is get on the phone Monday and start calling to see who would. You can find attorneys in your area at www.lawyers.com. That website allows you to search by location and type of practice, which would be criminal law.

Customer :

thank you I really appreciate it.

Dwayne B. :

You're very welcome. I'm sorry that your family is facing a situation like this but unfortuantely it isn't unusual.

Dwayne B. :

Anything else I can assist with before I exit to help others?

Customer :

I know that's what is so bad. This is why I want to return to school to stop this from happening so often

Customer :

That was all I appreciate it. Thanks a million

Dwayne B. :

You're welcome and best wishes to you and your husband on this. Please don't forget to leave a Positive Rating (of course I’d suggest Excellent!) so I get credit for my work.

Dwayne B., Attorney
Category: Legal
Satisfied Customers: 26688
Experience: Began practicing law in 1992
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