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Zoey, JD
Zoey, JD, Attorney
Category: Legal
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Experience:  Active member of the NYS bar since 1989
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My girlfriend is 22 years old and last year in april she was

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my girlfriend is 22 years old and last year in april she was staying at a hotel with her mother while traveling. she went out to her car and forgot the keys and was approached by the officers who had finished handling another situation in a nearby parking lot.
she was approached, they asked what the problem was, she explained she had locked the keys int he car. at that point she said she'd deal with it in the morning. the cops asked her to hold on while they ran a background check. on her background check they found a misdemenaor offense for pot from when she was 17 or 18. they then started questioning here about drug use. she again asked to return to her room after they had cleared her name for warrants. she was held by the police, they searched her bag and she is now being charged with possession of a controlled substance, a very very minimal amount. she never consented to having her property searched but one officer asked if she had weapons and she said she had a pocket knife in her bag. at that time they took her bag and searched it. they found a small amount of a substance. she was released that night with noi charges, no ticket for court, etc. thenabout 4-5 months after that event we were pulled over for a traffic violation and she was arrested for a warrant for a controlled substance, a warrant that stemmed from them pressing charges after releasing her after they what i presume to be illegally held, then unlawful search and seizure. is this OK? do they have the right to do that? she wasn't on probation, parole, had no existing warrants or tickets. why would they wait several months before pressing charges then not notify her that charges were being pressed.
Joe Wozna (###) ###-####
Submitted: 20 days ago.
Category: Legal
Expert:  Zoey, JD replied 20 days ago.


I'm Zoey and I'll be assisting you. I'm reviewing your question now. Are you online at this time?

Expert:  Zoey, JD replied 20 days ago.

The police do not have to make an arrest right away. They have until the statute of limitations runs out on the charge to investigate and do so. In this instance, The statute of limitations on a misdemeanor in Colorado is 18 months. So the police were still within the time frame to get charges pressed, and delaying doing so is not unlawful. It's likely that the waited to have the drugs formally tested before turning the case over to the prosecutor, because if it didn't test out, there would have been no crime.

That said, though they can file an arrest later the way they did, your girlfriend would appear to have search issues. They may have had a reason to stop her and check out the situation, but the search of her purse without her consent or apparently without any other exception to the warrant requirement would appear to be unlawful.

Your girlfriend has the right to go to trial and fight this case if she wishes. She is not required to take a plea, just because her lawyer thinks it a good idea. And her lawyer will represent her at trial and get her the suppression hearing if she actually insists upon it.

The US Supreme Court has ruled that there is no hard and fast rule about what is or isn't Constitutional. Claims of an illegal search and seizure must be ruled upon on a case by case basis at suppression hearings, and the determination made according to each case's facts and circumstances.

The standard that the court must use to judge such a hearing has also been set down by the Supreme Court. It is what a reasonable officer would do under the same circumstances. If the judge finds the search unreasonable, the evidence improperly taken could be suppressed, meaning it can't be used against your girlfriend. Without the drugs, there could be no possession case. Her possession charge would have to be dismissed.

In fact, however, suppression hearings are not easy to win. Judges give a great deal of deference to the judgment calls of police who are out in the field. So if the officer has any good and credible basis for his search, the judge is likely to find the search lawful, and the contraband will come in against your girlfriend. No pre-trial suppression hearing is ever a slam-dunk for either side, no matter how good the issues may be for either side.

Am I telling her to take a plea? No. I'm not her lawyer and don't have nearly enough information to do that. Nevertheless, if the plea is a good one, she shouldn't be too quick to rule it out. Suppression hearings are held at the very end of a case and if she loses the hearing, she will lose the favorable offer that she has now, and she will go right into jury selection. It goes without saying that if she loses the hearing she won't have a very good trial case, because she did have drugs in her bag.

Expert:  Zoey, JD replied 19 days ago.

Just checking in to see if you need more help or any clarification of my answer. If so, please reply here on this question thread.

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