Have you ever been driving or been a passenger in a car and, while looking out of your window, seen police scurrying through the trunk of a car on the shoulder? Or rummaging through the pockets of a suspect? Have you witnessed or read about excessive force and wondered, “are those cops breaking the law?” In many situations, yes: they are. Fortunately, in many cases, there are remedies at law to address law enforcement overreaching.
Searching your car without a warrant
You are entitled to be free from unreasonable searches and seizures. The general rule is that police are required to have a warrant before they can execute a search of your home, your person, your effects. Unfortunately, there are a myriad of “exceptions” to this rule which, the more cynical among us believe, render the Fourth Amendment the functional equivalent of "swiss cheese.”
This is due to what is called your “expectation of privacy.” For example, you are deemed to have a reasonable expectation of privacy of inside your home.
However, the more the public arena in which you are situated, for example, walking down the street or driving your car, the less you are deemed to have this expectation of privacy or, at best, the expectation is reduced. This means that the police can legally search you or your vehicle in the following situations.
“Search incident to arrest.” The police can search your vehicle if they have arrested you. Granted, they must have probable cause you actually committed a crime for the arrest, and, therefore, the search to be lawful. If the original arrest was unlawful, so is the search.
“Automobile exception.” Again, given the reduced expectation of privacy in your vehicle, the police can lawfully search your vehicle provided they have probable cause that you have contraband or weapons in the car. In retrospect, if you suffered an arrest and are challenging the evidence (found in a vehicle) brought up against you, your lawyer can argue that the officer did not have probable cause (if the circumstances warrant that argument) and try to have the evidence (gathered from your vehicle) against you thrown out.
“Exigent circumstances.” In the event of a pursuit or other emergency, the police can search your vehicle if there is a risk that certain evidence of a crime will be lost if it is not recovered.
“Consent.” If you consented to a search of your vehicle and your consent was not the result of law enforcement intimidation or coercion, the police can search your car.
"Stop-and-frisk" to search your person (your pockets, clothes) for weapons in a police encounter. This is considered a minimal intrusion and necessary to ensure police officer safety.
In spite of these exceptions, the bottom line is that police cannot arbitrarily search your vehicle. There must be some justifiable reason (“probable cause”) to initiate a search. Probable cause must be grounded in the facts and not simply made up. If someone calls in your vehicle because he or she thinks you may be a suspect in a recent crime (for example, a burglary minutes before), or something that otherwise ties you to a crime, the government can advance the probable cause argument. If not, and the police searched your car on some bogus grounds, the evidence yielded from that search can probably be successfully thrown out.
Conduct strip or cavity search
While jail or prison officials can perform suspicionless searches of inmates in most circumstances, the prisoner still has a privacy right to be free of “arbitrary, capricious or harassing” searches.
One of the most disturbing and humiliating invasions of your privacy can be a cavity search. These kinds of searches are ripe for abuse and, in the hands of unscrupulous or abusive jail personnel, can get out of control.
The Ninth Circuit Court of Appeals has created two requirements which must be satisfied for a digital body cavity search to be constitutional under the Fourth Amendment:
(1) There must have been a valid prison management need for the search, and
(2) The search must be “conducted in a reasonable manner.” To satisfy this element, the court will look at whether trained staff conducted the search in private and under hygienic (that is, clean) conditions.
In Texas, a female police officer was indicted on sexual assault charges after conducting roadside anal and vaginal body cavity searches on a woman and her niece (using the same glove) in full view of passersby.
Male Officer Searching Female Inmate
In California, all prisoners must be searched “in a professional manner.” As far as male prisoners are concerned, prison officials of either sex can perform routine clothed searches. However, searches of clothed female prisoners can only be performed by female prison officers. The only exception is an emergency situation. California law forbids opposite-sex guards (except for qualified medical personnel) from performing unclothed body inspections “except under emergency conditions with life or death consequences.”
Look through your phone
Unfortunately, for privacy advocates and civil libertarians, the case law is not looking good for cell phone privacy. A 2011 California Supreme Court ruling held that police can search the cell phones of arrested individuals without a warrant. It’s rationale was that arrestees lose their right to privacy for any items they are carrying when taken into custody. Granted, generally, the police cannot force you to reveal your password if your cell phone is password-protected. If you are pressured into revealing your password, and the police access your phone content, your attorney can try to have the evidence thrown out on Fifth Amendment grounds. (This argument should work unless you would not have incriminated yourself by revealing your password). Another argument could be that police coercion or pressure resulted in a due process violation.
Use of excessive force
The most common civilian complaint about police is the use of excessive force. Whether it’s tasering, physical brutality, unjustifiable shootings, deprivation of medication of an inmate in custody, or any other number of situations, police can be held civilly liable for deprivation of your civil rights under Section 1983 of the United States Code. Plaintiffs generally encounter legal obstacles with “governmental immunity,” but, in certain situations, claims of immunity can be overcome. For example, you can sue the city or county in which the police misconduct occurred. For the municipality to be liable, you must demonstrate that the injury you suffered was the result of a custom or policy of the offending municipality. Going undercover in high schools
In Riverside, California, a 17-year-old student with Asberger's syndrome was brought up on marijuana charges under bizarre circumstances. An undercover police officer, whom the school allowed to pose as a pupil, "befriended" the student and asked him to buy marijuana for him. The 17-year-old refuses but the undercover cop insisted and gave him $20 to purchase it. Feeling pressured, the student made the purchase and was subsequently arrested.
This is your classic sign of "entrapment," which occurs when police apply pressure, on an otherwise law-abiding person, to commit a crime. The pressure can come in the form of excessive cajoling or flattery, or more strong-arm tactics, like out-and-out insistence or intimidation. This is an "affirmative defense" to a criminal charge which can lead to an acquittal or dismissal of your charge.
The Riverside case exemplifies to what absurd lengths law enforcement will go to fight its "war on drugs," even at the expense of a special-needs student.
Killing animals or pets
There has been a recent spate of news stories about police shootings of pets. In Texas, police officer is facing an administrative review after having shot a family’s trained therapy dog while trying to serve a traffic-related warrant. James Simmons, the homeowner, said the cop had the wrong house. In Ohio, a police officer shot a litter of kittens. In Hawthorne, California, police shot and killed a Rotweiler of a man who had been filming on the street.
Many of us are deeply sensitive to the intentional human infliction of suffering and cruelty on animals. The harming of animals strikes us at the very core of our emotional being as inherently repugnant, immoral and evil. As recent news stories have shown, police are increasingly involved in the killing of animals and pets.
Unfortunately, the legal system remains largely byzantine, medieval and regressive in the way it views animals as mere chattel or property. This results in the lack of adequate compensation for grieving pet owners, generally limiting damages to reimbursement for the pet’s market value and veterinary bills. However, if the offending party’s conduct was willful and malicious, you may be able to recover punitive damages in a civil suit.
If police have shot or mistreated your pets, they may be held civilly liable under Section 1983 of the United States Code and there is case law to back this up (San Jose Hells Angels v. San Jose (9th 2005), 402 F.3d 963).
What can be done?
If you have encountered these issues in a criminal setting, in other words, you have a pending criminal matter, the best thing to do is contact an experienced criminal defense attorney who can marshal a powerful defense. This includes the filing of motion(s) to suppress evidence against you (if the evidence the police gathered against you was extracted by violations of your Fourth Amendment right against unreasonable searches and seizures). This can also include what is known as a “Pitchess” motion, whereby, on a successful written motion, the court can order the police department to release any record(s) of the offending officer’s background to verify whether he or she has sustained any complaints of misconduct in the past. This can be invaluable in a trial setting because your attorney can more effectively cross-examine and impeach the credibility of the police officer.
If your criminal matter has concluded, you can contact a police misconduct lawyer or civil rights lawyer to pursue a civil action to vindicate your rights. Generally, however, unless your charges were dropped, you will needed to have obtained a jury acquittal of your charges to be able to pursue a successful civil rights claim.
Disclaimer: Nothing in this article or anywhere on this blog should ever be considered to be legal advice or counsel. This is general information only. No attorney-client relationship is created by exchange of comments related to this article or any article on this blog or any links related to this article or this blog. These are delicate matters best handled by an experienced criminal defense and/or civil rights attorney.
Lorgio Coimbra is a highly-skilled, highly-experienced and extremely knowledgeable criminal defense attorney and DUI defense attorney. The Coimbra Law Office also represents persons who have suffered abuse or brutality by law enforcement. Mr. Coimbra is licensed in California. If you or a loved one are in need of legal representation, contact this office at 1-855-325-5245 for an evaluation of your case. Or email at CoimbraLaw@Yahoo.com. Free consultations available.
There has been a recent spate of news stories about police shootings of pets. In Texas, police officer is facing an administrative review after having shot a family’s trained therapy dog while trying to serve a traffic-related warrant. James Simmons, the homeowner, said the cop had the wrong house. In Ohio, a police officer shot a litter of kittens. In Hawthorne, California, police shot and killed a Rotweiler of a man who had been filming on the street.
Many of us are deeply sensitive to the intentional human infliction of suffering and cruelty on animals. The harming of animals strikes us at the very core of our emotional being as inherently repugnant, immoral and evil. As recent news stories have shown, police are increasingly involved in the killing of animals and pets.
Unfortunately, the legal system remains largely byzantine, medieval and regressive in the way it views animals as mere chattel or property. This results in the lack of adequate compensation for grieving pet owners, generally limiting damages to reimbursement for the pet’s market value and veterinary bills. However, if the offending party’s conduct was willful and malicious, you may be able to recover punitive damages in a civil suit.
If police have shot or mistreated your pets, they may be held civilly liable under Section 1983 of the United States Code and there is case law to back this up (San Jose Hells Angels v. San Jose (9th 2005), 402 F.3d 963).
What can be done?
If you have encountered these issues in a criminal setting, in other words, you have a pending criminal matter, the best thing to do is contact an experienced criminal defense attorney who can marshal a powerful defense. This includes the filing of motion(s) to suppress evidence against you (if the evidence the police gathered against you was extracted by violations of your Fourth Amendment right against unreasonable searches and seizures). This can also include what is known as a “Pitchess” motion, whereby, on a successful written motion, the court can order the police department to release any record(s) of the offending officer’s background to verify whether he or she has sustained any complaints of misconduct in the past. This can be invaluable in a trial setting because your attorney can more effectively cross-examine and impeach the credibility of the police officer.
If your criminal matter has concluded, you can contact a police misconduct lawyer or civil rights lawyer to pursue a civil action to vindicate your rights. Generally, however, unless your charges were dropped, you will needed to have obtained a jury acquittal of your charges to be able to pursue a successful civil rights claim.
Disclaimer: Nothing in this article or anywhere on this blog should ever be considered to be legal advice or counsel. This is general information only. No attorney-client relationship is created by exchange of comments related to this article or any article on this blog or any links related to this article or this blog. These are delicate matters best handled by an experienced criminal defense and/or civil rights attorney.
