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Zoey, JD
Zoey, JD, Attorney
Category: Legal
Satisfied Customers: 26841
Experience:  Active member of the NYS bar since 1989
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My daughter was attending my grandson birthday gathering when

Customer Question

My daughter was attending my grandson birthday gathering when they parked a group of people rushed the car to confront them about the parking space. It was told to police that my daughter pulled a gun on them and police asked my daughter to open car to see if gun was in car she refused the officer then had a towing company to come and unlock the doors without warrant or permission on private property. Is that legal
Submitted: 1 year ago.
Category: Legal
Expert:  Zoey, JD replied 1 year ago.
Hello, Did the police arrest your daughter before they had the car opened by the tow company? If so, for what? Did the police find a firearm? Is there now a case against your daughter, and if so for what?
Expert:  Zoey, JD replied 1 year ago.
Hello again, I was hoping to hear from you before writing an answer, and I still would like to hear the answers to the questions I asked you. However, I can provide you with a general answer and then adjust it if necessary once I have a few more details. With the limited facts at my disposal, it looks like the police likely exceeded their authority by unlocking and searching the vehicle. The fact that this occurred on private property is not an important fact here. Police can conduct searches and make arrests on private property, and they do all the time when the facts justify that they do so. Here they have probable cause to come to the scene because somoen reported to the police that your daughter pulled a gun on them. Once they have probable cause, however, the police need a warrant or an exception to the warrant requirement in order to make a full search of the car. One such exception is consent which, per your information, your daughter did not give. There is also an emergency exception to a warrant requirement, and the facts may or may not support an emergency theory. The police are also allowed to do an inventory search of a vehicle after they make an arrest, which is why I asked you whether or not they placed your daughter in custody before they had the towing company open up the car. In any case, the United States Supreme Court has ruled that there is no hard line definition of what is unconstitutional. Every case is different and every potential 4th amendment violation must be challenged and explored at a special pre-trial suppression hearing. Determinations of constitutionality must always be litigated fully. If your daughter has been arrested as a result of the contraband seized and she wants to fight the case, her lawyer will move for such a hearing at the appropriate time.The standard the judge must apply to these hearings has also been determined by the US Supreme Court. The judge must decide whether the officer acted the way a reasonable police officer would have under all of the facts and circumstances presented.At the hearing the prosecutor will put the officer on the stand and will question him in such a way as to make him look most reasonable under all of the circumstance. On cross-examination the defense attorney will look to bring out testimony showing just how unreasonable the officer was. It is there where the lack of a warrant would get challenged and where the facts of the inappropriate police behavior would be revealed. When both sides rest the judge makes his decision.If the judge finds the police conduct to be reasonable under the facts and circumstances, there is no constitutional violation and any evidence seized in the search will be admissible at your daughter's trial. If on the other hand, the police conduct is found to be unreasonable, then evidence that was wrongfully taken during the search will be suppressed, meaning it cannot be used against your daughter. With certain kinds of cases -- drug or weapon's possession cases, for example, if the evidence gets suppressed, there's no evidence left to go before a jury. With others, the case may survive only in weaker form.So all anyone right now can truthfully tell you is that you have a real issue, that whether it was appropriate for the police to detain your daughter long enough for a tow company to come and unlock the car, and whether the ensuing search was illegal. Until the hearing, her case will continue to go forward for this among any other Constitutional challenges, to be litigated. The burden of proof at this hearing is not beyond a reasonable doubt. That's the state's trial burden. For a hearing it only has to be whether it's more likely than not that the police violated the defendant's 4th Amendment rights. The burden favors the state and the outcome is rarely a slam dunk for either side.