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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Criminal Law
Satisfied Customers: 117375
Experience:  Attorney with over 20 years law enforcement, prosecution, civil rights and defense experience
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I was pulled over for speeding on I-75 in Auglaize County Ohio

Customer Question

I was pulled over for speeding on I-75 in Auglaize County Ohio on July 29th, 2010. I was driving a rental car in route to a show I was helping a friend with in Lima, Ohio.

As soon as the Highway Patrol pulled , me over, he came to the passenger side window and said "he smelled something" and asked me to get out of the car. After having my license ran, I was issued a speeding ticket. Then the officer asked for consent to search. He told me I could either give my consent to search, or I was free to leave.

Being how I was already late to the show, I told the officer I was just assume leave, but the officer continued to ask for consent. I know I didn't personally search the car, as I was physically in the car for less than 2 hours. I picked up the car, drove across town to my home and went to sleep. Got up late and ran out of the house and left.

After the persistent asking, even after I told him I would rather leave the scene, I consented just to be allowed to get on my way. Well, the officer comes back to his patrol car and shows me a small plastic bag that he says he found in the center console of this car. I never was in the center console and explained that I had a travel bag in the truck that I dropped off at home and I put the rental paperwork in the glove compartment. My personal belongings (two packs of cigarettes, a cell phone and a vitamin water) were on the passenger seat.

I was finally allowed to leave the scene with another paper stating that "charges could be pending". The officer told me that if anything would happen to come of this (charges) that I would hear something in 7-14 days. Well, I didn't. 8 months later, a Sheriff pulls up after getting a hit on my plate. Eventually, the computer kicks out a warrant for out of Auglaize County for Felony 5, possession of cocaine. The Indictment was signed March 22, 2011, The Sheriff got the plate hit on April 8, 2011 without a word from anyone from Auglaize County contacting me in any way.

The Judge at the video bail hearing even asked why this case was even on his desk and why it took so long to get there. The only explanation from the prosecutor was " the substance had to be sent out for testing". The Judge then stated that "nothing takes that long to test!"

After a few days in jail, I was granted a bond and I am now awaiting my Pre-Trail on July 8th. I was appointed a Public Defender and I'm not sure what he "could" or "should" be doing in defending my case. My questions are:

1. After the initial traffic stop, is the search even legal after I told the officer once that I would rather leave the scene? I sure didn't feel like I was free to go anywhere.

2. "Should" the Public Defender file motions to suppress the evidence and/or argue that I should have been written a speeding ticket and that should have been the end of the stop since there were no reasonable suspicions of any criminal activity, only the officer saying he "smelled something" which he states in the discovery packet that is was an inscent type smell??? <- nothing "smelly" was found the car except for a few cigarette butts. (I know there is a legal name for this but I can't recall it right now).

3. As far as I know, the Public Defender is still waiting on the rental car company to comply with his request for information pertaining to the custody of the car in question. Is there any time line as to when the company would have to send this information?

4. I plan on fighting this charge all the way to trial if need be. If this happens, and somehow I lose (which should be impossible since it wasn't my package) what are the possible penalties? The only thing on my record is a criminal trespass back in 1993. The PD did state that the worse case scenario in his view would be some sort of misdemeanor..True or not, I have no idea.
Submitted: 6 years ago.
Category: Criminal Law
Expert:  Law Educator, Esq. replied 6 years ago.
1) This is a typical challenge to this type of search. If you did not feel free to leave and you denied the search multiple times and the officer badgered you about consent and would not let you leave, then YES this is likely going to be deemed an illegal search.

2) Yes the defense attorney should be filing a motion to quash the evidence based on the illegal search. Also, smelling a clove cigarette (the ones that smell like incense) is not the smell of any illegal substance, so his probable cause for the search was still wrong.

3) Generally, the subpoena gives them a minimum of 20 days and if they do not reply, your attorney's next step is filing a motion to compel or a motion for contempt and force the company to show up to court.

4) Do not say "impossible," we have seen people who never should be convicted get convicted. Cocaine is a felony of 4th or 5th degree (depending on weight) and is punishable by up to 18 months in prison.

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Customer: replied 6 years ago.
So, the next time I speak with the PD, should I ask him straightforward if he plans on filing the motions?

What if he "blows it off" so to speak? I honestly do not see any lawyer doing such a thing but you never know right?

One more question, If I may...When it comes to a case like this, I've read that I have the choice to have a jury trial (unless a plea is reached), or to have a trial before 3 Judges (no contest plea)..Is this information correct? and should any thought be given to a no contest plea given the circumstances of this case?

The accussed must have knowledge, domain and control over the contraband correct? Since I had no knowledge of the substance being in the car, how could a the State prove I had knowledge of it? This part really confuses me.

Sorry to ask so many questions, but I get the impression that my PD doesn't have time to answer my questions. I understand they are very busy, but I would expect some sort of communication.
Expert:  Law Educator, Esq. replied 6 years ago.
Absolutely you should be insisting he fight the search as unlawful. The problem is the PD is so busy they generally just do the bare minimum. If he refuses you can speak to the PD supervisor or you would need to get a new trial.

Yes you can have a jury trial. A no contest plea is not a trial, it is entered as a guilty plea.

You are reading textbook answers about knowledge/domain and control. Basically they have to show some nexus to the illegal substance and intent to possess, so the DA will use the inference that you were in the car so it was your drugs. They will argue that you saying it was a rental car is not a defense because they will bring in someone to say they clean the cars in between passengers and you have to show how they do not always clean the glove box or center consoles.

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