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My nephew is currently incarcerated has been for the last 18…

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My nephew is currently...

My nephew is currently incarcerated has been for the last 18 months he was out on bond and was pulled over due to failure to signal while turning the officer approached the car saw he didn't have a license search the car drugs were in the car now the police report States where the infraction occurred but my nephew was never on that corner there is only 10 seconds prior to the officer getting out of the car on video from the - Cam does he have a possibility of a motion to suppress case

Lawyer's Assistant: Have any charges been filed? If so, when is the next court date?

Yes charges have been filed April 25th

Lawyer's Assistant: In what state did this occur?

Illinois

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

Not that I can think of

Submitted: 4 months ago.Category: Criminal Law
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Answered in 2 minutes by:
4/2/2018
Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 4 months ago
Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 31,843
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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Hi,

I'm Zoey.

I've reviewed your post. Please be patient as I may need to research for you, and it also takes time to compose and type a reply.

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Customer reply replied 4 months ago
Illinois statute states of the dash cams are bought with grant money they have to run continuously so shouldn't the infraction be on video
Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 4 months ago

If a police officer has what is called an articulable suspicion -- something less than probable cause but more than a hunch -- he can pull a car over. Driving too fast, too slow, too erratically, too aggressively, too tentatively, having a broken tail light, a dirty license plate, too darkly tinted windows, just about anything you can think of can be a predicate for a stop.

From there the officer can ask for identification, even order you out of the car if he wishes and do a pat down for his safety. If during the course of all this, the officer sees something that indicates that something more is going on than meets the eye, he can proceed to investigate further, and even look into the car and take what's in plain view. What he cannot do is a full-scale search without either a warrant or a warrant exception.

There is a procedure set down by the US Supreme Court to determine whether your nephew's constitutional rights have been violated by an improper search and seizure, because all of the facts and circumstances of each particular case has to be heard before a court will determine whether police conduct was or wasn't proper. If he wants to fight your drug possession case, he would be entitled to a pre trial hearing on the issue of the stop and all that flowed from it to see if the police overstepped their authority in violation of his 4th Amendment rights.

At such a hearing the prosecutor will put the officer who stopped him on the stand, and have him tell why he pulled you over, and how it led to your arrest. As part of that, he would have to explain the search. Your nephew's lawyer would then get the opportunity to cross-examine the officer and show how he violated his rights without probable cause or a warrant.

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 him. Without the drugs, there can be no possession case. Your nephew's criminal charges would have to be dismissed.

Your nephew's lawyer would be entitled to discovery material. The state would have to turn over police reports and any videos if they are available. Dash cams break down just like any other equipment. But if a video exists it would be made available to your nephew and his attorney.

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Customer reply replied 4 months ago
I have seen the video and the please report the police report States that he pulled him over for failure to signal while turning right in front of him from a corner that my nephew was never and I don't believe his constitutional rights of search and seizure violated at all I'm questioning the stop altogether everything past the stop was done proper according to procedure but my nephew is ever on the corner that they
Customer reply replied 4 months ago
I have seen the video and the please report the police report States that he pulled him over for failure to signal while turning right in front of him from a corner that my nephew was never and I don't believe his constitutional rights of search and seizure violated at all I'm questioning the stop altogether everything past the stop was done proper according to procedure but my nephew is ever on the corner that they say he was
Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 4 months ago

Thank you for clarifying.

It doesn't change the answer that I gave you, however. There is only one way to get evidence suppressed, and that's for his lawyer to file a motion for a suppression hearing. This is the law of the land as handed down by the US Supreme Court.

The Supreme Court has said that all suppression issues must be litigated on a case-by-case basis, because there is not hard and fast rule as to what is or isn't Constutional. Each case has to be examined at a hearing according to its unique facts and circumstances.

So can your nephew's attorney file a motion to suppress the evidence? Absolutely, It will get him a hearing. If he wins the hearing the evidence is suppressed. If the judge finds that the police behaved reasonably under all of the facts and circumstances, however, the evidence will be usable against him at trial.

If the stop is improper, then everything that follows from that stop will have to fall too.

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Customer reply replied 4 months ago
I understand that his lawyer did file a motion to suppress but now feels the fact there is no video is not enough anymore and it would be he said she said so I am just trying to get another opinion
Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 4 months ago

He's not wrong in that suppression hearings are very hard to win. They do, however, make for great discovery for the defense because you can learn exactly what the police will say when they testify and they can't change their story. So even when the defense loses the hearing, he can still get the same issues in front of a jury who, unlike a judge, might not be as quick to believe the police.

Also, the burden of proof for hearings favors the state. The burden of proof at trial, however, favors the defendant, as the state has got to prove guilty beyond a reasonable doubt in order to prove your nephew guilty.

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Criminal Lawyer: Zoey_ JD, JustAnswer Criminal Law Mentor replied 4 months 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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