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If a police officer says they impounded a vehicle and did a…

If a police officer...

If a police officer says they impounded a vehicle and did a "inventory" search .. but can not produce that "inventory" search and after viewing the in car video .. you can clearly see that the officer didn't even so much as write one thing down .. and he searched the vehicle after an arrest of the driver ... would that be still considered an "inventory" or a search incident to arrest??

Lawyer's Assistant: What state is this in? And how old is the car?

Texas

Lawyer's Assistant: Has anything been filed or reported?

grand jury indictment for possession of a controlled substance

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

I am trying to find a way to get the effidence in question inadmissable based on the search ... being illegal if police officer can not provide the reason for the actual search

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Answered in 5 minutes by:
3/11/2018
Zoey, JD
Zoey, JD, Attorney
Category: Legal
Satisfied Customers: 31,427
Experience: Active member of the NYS bar since 1989
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Hi, again. Give me a few minutes to type you an answer.

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Customer reply replied 4 months ago
Sorry :) ... Thanks

In order to do a full search of your car, the officer needs probable cause and a warrant or an exception to a warrant requirement. If they prepared no inventory, then you could argue that the search was not an inventory search. However, they still could search incident to a lawful arrest.

Chances are, what would happen is that by the time of the hearing we spoke of the prosecutor would go over the officer's testimony to help prepare him for the stand and he would make sure that the officer said that the vehicle was searched incident to the arrest.

Even if he said it was an inventory search, however, the judge would know, just as you did and your lawyer would, that the officer would have the right to search incident to an arrest as well. So your lawyer when cross-examining the officer would have to try to show that he didn't conduct a valid search incident to an arrest.

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Customer reply replied 4 months ago
ok ... so if he truly is conduction an "inventory" wouldn't he need to provide at least a minimal amount of documentation that, that is how he found any evidence? Not just "saying" that he was searching the vehicle for "inventory"
Customer reply replied 4 months ago
Lets say ... when I picked up my vehicle ... and there WAS something missing ... How would I be able to prove that??

Yes. If the report says he made an inventory search, you would expect a written inventory.

As for anything missing, you wouldn't be able to prove it if the officer made no inventory of the property inside of the car.

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Customer reply replied 4 months ago
OK ... so if NO inventory exists .. then .. would that then be considered search incident to arrest .. and would that search then be subject to the incident to arrest limits???
officer safety or
additional evidence of arrest
Customer reply replied 4 months ago
One more question ....
If the registered owner of the vehicle in question .... is on scene .. and the trooper advises them to leave or be arrested ... and lets just say the officer was impounding the vehicle because of the registration and doing the inventory based on that ... wouldn't the owner of the vehicle be able to advise that he would like the tow truck driver to take the vehicle to their residence instead ... if the vehicle legally can not be driven ... but is not considered a part of the "crime" the driver was arrested for ... then if the registered owner is there and wants the vehicle towed to their house ... does the trooper still have legal authority to impound and search???

Here's a good article for you on search incident to an arrest and vehicles. It should answer all of your questions, and it's pretty straightforward. It will talk about the prerequisites as well as the scope.

https://www.fletc.gov/sites/default/files/imported_files/training/programs/legal-division/downloads-articles-and-faqs/research-by-subject/4th-amendment/searchingavehicle-sia.pdf

As to the vehicle, if the car is impounded he KNOWS it won't be driven until it's registered. He wouldn't know that if it were towed to the house.

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Customer reply replied 4 months ago
You also may want to look into Arizona vs Gant
https://legaldictionary.net/arizona-v-gant/
Overrules Belton case

Ouch. I actually was aware of Gant.

Belton allows for the defendant to be out of the vehicle and in the police car. Gant requires the defendant to not be under any restraint (not cuffed or in the squad car) at the time of the search, UNLESS its reasonable for the police to believe that evidence of the offense would be found in the car.

So if a defendant after the Gant decision had been stopped and arrested for drug activity, the search and the finding of drugs in his car would have been constitutional. Gant himself was arrested for driving on a suspended license, and the search occurred when he was in the squad car, which is why he got the drugs suppressed

So if you were arrested for driving an unregistered vehicle and you were in physical custody when your car was searched, you'd have a good suppression argument as to a search incident.

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Customer reply replied 4 months ago
as far as the vehicle registration ,,, we picked it up without the registration being renewed from the storage facility ... and that same vehicle STILL has not been registered ,,, since the day we brought it home .. the motor blew up ... so it technically has been sitting in my driveway since . So then ... why was the vehicle released without it being properly tagged ...
Customer reply replied 4 months ago
all we had to show was insurance ... which we hade
Customer reply replied 4 months ago
back to the suppression .. I was arrested on a completely unrelated issue to drugs or registration.

I don't know why they released an unregisterd car to you. Most states wouldn't. I'm assuming then that the primary reason for impounding it in the first place, since this arrest was NOT for a driving infraction, was to do further investigation or to hold it as evidence until a prosecutor was willing to release it.

If what you were arrested for had nothing to do with drugs and nothing that you were arrested for could have been found in your car, then the Gant ruling could defeat a search incident if you were in physical custody at the time of the search.

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Customer reply replied 4 months ago
ok ... so let me make sure that I have this correct in my head ... if the trooper can not provide an inventory search documentation ... then the search would actually be incident to arrest with all of its restrictions ... regardless of registration ... in your opinion would I still be able to ask for a pre-trial hearing for motion to suppress based on an illegal search conducted by the trooper....

Yes. If he says it's an inventory search your lawyer can argue that no inventory was never made and that it couldn't be a valid search incident to an arrest either because of the Gant ruling.

Your lawyer would file for a hearing to address all Constitutional issues, and the judge would grant the hearing.

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Customer reply replied 4 months ago
ok ...THANK YOU ...
I have done so much research on this issue ... and have provided all this information to my attorney ... he advised me today that innocent people go to jail all the time because of juries believing the officer .. since I do live in a small town ... good ole boy rules apply ... I'm not willing to go to jail for something i can honestly say I didn't do because a jury may find me guilty ... that's why i want to request a motion for suppression I just needed to make sure that I am on the right track ...because I am also not willing to just plea out ... cause no one wants to do their job .... I wanted to make sure that I can overcome the inventory ... since he can not produce it ... and even the in car video that he submitted as evidence clearly shows that he calls for the tow truck .. and then gets on his phone until the tow truck driver arrives ... has conversations with 2 other vehicles ... after each time he goes back to my vehicle ... he gets something out of his vehicle .. then goes back to mine ... then returns to his patrol car ... takes me to the county jail ... books me in for what I was arrested for ... and I do not find out about the possession charge for 2 days ... when the judge came in to magistrate me. during my booking and finger print .. and mug shot ... there was no mention of any possession .... in his report he states that i was charged with what he arrested me for and the possession and THEN transported me ... but that is not the case ....THANK YOU for listening FULLY to me and understanding what I have been asking ... I think my attorney is not wanting to take this to trial because of all the work that goes into a trial ... and he is encouraging me to plea ... my bones just are not feeling it....

Your attorney is right. If an officer presents well and sounds convincing on the stand, juries will like him and want to believe him. This is a universal "given" in criminal law. It's what every defense trial lawyer struggles with hopes to find ways of overcoming at trial.

As to suppression, you're on the right track and all I can do is to wish you good luck.

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Customer reply replied 4 months ago
one more
if I get the pre-trial hearing and the judge refuses to suppress
is the option for a plea still available to me or would I then have waived that and have to go to trial??

You can always take a plea, even when the jury is deliberating (though not after they have sent down word that they've got a verdict).

However, at the beginning of the case, the offer from the prosecutor will be generous. Tell the DA you want trial, and he'll be okay with that but the offer on the table will be withdrawn and probably gone for good.

Put him through all of the work to prepare the case fully for hearings and trial, and you may find, in fact, that he won't give you a new offer at all. He might tell you to get it from the judge, who will give you one, but you may not like it.

Bot***** *****ne: you can always get a plea rather than go to trial, but you may not like the offer you can get should you lose the hearing.

Zoey, JD
Zoey, JD, Attorney
Category: Legal
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Experience: Active member of the NYS bar since 1989
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Customer reply replied 4 months ago
OK ... Once again ... Thank you ....
I ... will ask for the motion ... and I believe that I have a stronger case than the trooper ...
and sometimes .... SOMEONE ... needs to get the good ole boys off their butt and do the job they are ELECTED to do ... :P
Thank you .... I have appreciated your time.

You're welcome! Good luck!!

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