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Hammer O'Justice
Hammer O'Justice, Criminal Lawyer
Category: Criminal Law
Satisfied Customers: 4497
Experience:  Almost 12 years of legal experience, primarily in criminal law
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My significant other was recently booked into the county jail and proceeds

Customer Question

My significant other was recently booked into the county jail for trafficking and proceeds however the charges had to be dropped because the search was illegal search and seizure. He was released and now almost two months late the da issued a warrant for the very same charges. Isn't this double jeopardy?
Submitted: 2 years ago.
Category: Criminal Law
Expert:  Hammer O'Justice replied 2 years ago.
Hello.
I'm sorry to hear about your significant other's situation. Unfortunately, however, this is not double jeopardy. Double jeopardy prevents you from being tried twice for the same crime, but if the case is dumped before trial, jeopardy does not become an issue. Jeopardy usually does not occur until a jury is seated (or the trial begins, if it is a trial by judge). At that point, a person cannot be tried again for the same crime unless there is a mistrial. But if a case is dismissed well before trial, it does not prevent the State from revisiting the charges unless the judge dismissed it with prejudice (which basically means it cannot be brought back).
As for the illegal search, if they already had a suppression hearing before a judge and the judge threw the fruits of the search out, they would still be prevented from using that at trial and would have to prove the charges using other evidence. If it never made it to a hearing in front of the judge to determine whether the search was illegal or not, then the prosecutor can still use the evidence if and until a judge throws it out. If the judge does find the search illegal and exclude the evidence, then the prosecutor will need to have other evidence or he or she will still not have anything to go forward on.
But the short answer to your question is it is not double jeopardy because he was never tried on the original charges.