[ARCHIVED THREAD] - felony arest help (Page 1 of 2)
Posted: 11/16/2007 9:04:09 PM EDT
| my youngest son who is 21 and just returned from army M.P. training and is now a military police officer in the army Nat guard is home for a month and half while waiting to start his last year in college {law enforcement degree} was at a friend's house when a friend of his came by and they ended up going into town for something to eat . {4 of them} in the friends of a friends car. they were pulled over and searched and he had a large bag of pot under the seat. they were all charged and arrested for felony posestion to pot. my son did not smoke any and did not know that it was in the car but now his whole future is at stake. any advice on how to make this right so that he can still follow his plan for law enforcement as a career? what should I do to help? he is just sick over this as we are also. wrong place at the wrong time is a bitch. im or email me if need be. thanks for any help. |
You should at least be able to maneuver Adjudication of Guilt with-held after successful 1 Year Probation completed and Judge ussually gives an expungement... |
|
Which seat was the bag of pot found under? Did driver give consent to search? If not, what was the PC for the search? The driver is the one that is normally held "accountable" for anything in the car. If someone fesses up to the weed, the other 3 should be fine. |
|
1. Tell him to get better friends. Lawyer up and have said lawyer offer up physical evidence of long term non usage. IE hair, urine, whatever. Why was the vehicle searched? All going to depend on how good a lawyer he has and what the judge is like. And he had better be willing to flip on his friends who let him take the rap, because they aren't his friends at all. |
GET A LAWYER. if the driver admitted it was his and the cops took the statement that would help a lot. So would a voluntary offer to take a piss test on the courts terms to show that I had no long term or short term use. Better be sure tho before that offer is made. Sounds as if the cops charged everyone just to make sure it got stuck to someone. |
Can you get a felony arrest Adujdication of guilt expunged? Or does it depend on the nature of the felony arrest? |
|
1. Get a lawyer 2. He better be willing to testify against the other three. 3. Check to see if your state has a "first offender" law. Here, we can let a defendant plea guilty under the first offender act. He will get a term of probation, and if he serves it out without any problems, the conviction is removed from his record and it is as if he were never convicted. 4. Negotiate with the prosecutor. |
|
Here is a few thoughts that crossed my mind. I am not a lawyer and you will need to retain a lawyer to help you through this... 1) Get a drug test done by a certified drug testing facility ASAP. Pot will stay in your system for 30 days. If your son can get a drug test in the next few days you can present that evidence to the judge to help distance himself from the users. I am pretty sure your son will be the only one to present his own drug test to help prove innocence. That could go a long way in the eyes of a judge. 2) Do not plead to a 1yr suspended sentence, it will affect all future jobs (LE) and gun ownership. They (.gov) can still see your son was arrested for a felony and even in cases like youthful offender (18 and under) statuses, a judge, police, etc.. can see the conviction. Expungment is only available in some states. Good luck. Keep us posted. |
Even if the charge is dropped at this point, or if he pleads to something less, the arrest will always be on his record. Since he is in the service, he should go talk to a JAG. The military offers free legal services to active duty personnel. |
| He shouldn't plead to anything; should hire the best lawyer he can find and should take the lawyer's advice. Sounds like the cops sucked on this one, but that's not shocking news, its it? (Of course, if the OP's son can't pass the long-term pot test, then the cards will just have to fall as they will, won't they?) |
| He is charged with possession. You don't have to smoke it to possess it. All a drug test will show is that he didn't smoke it. The point is, it sounds like the State had enough to make the arrest, but he has a lot of options, and an attorney in that state can do him a lot of good. |
+1 and a good DA could twist this to say that he was selling since he obviously wasn't using. Get a good high dollar lawyer, and make sure he rolls on the other guys, and get his friend to roll on the dirtbag whose weed it was. |
|
Your son needs to find better friends. I have heard that exact story from every parent of every kid I ever had on probation way back when I was at the local level. It was never true...it was what the parents wanted to believe. You don't hang out with potheads and not smoke...it just doesn't work like that. Give him a test and it will be positive. He will then claim it is from second hand smoke...which it isn't. He chose to spend time with criminals and he is getting a dose of reality. Sucks...but sometimes the decisions someone makes can be serious. Get a lawyer and plea it down. It won't be a felony. He will get probation for about a year and regular drug tests along with some classes on why drugs are bad, etc. His unit will find out so call them and tell them. Don't lie to them and don't let him sugarcoat the truth. They will get all the facts from the cops and the story better be the same. |
| I am not a lawyer but I have hired many over the years for various non criminal reasons. A high priced lawyer is worth his time and expense. When the DA knows he/she is working with a smart prick they move on to other easy cases. Golf with the Judge and a box of cigars and the DA kicks the cops in the ass. Hey in America we got the best law money can buy. So buy it and help the kid out. |
|
As a lawyer, lawyer up. If what your son's saying is true, plead to nothing. It wasn't his car. +1 on the drug test, IF you are positive he'll pass. It's not worth getting ANY criminal record when you're actually innocent. If the driver cops to ownership, this will go away. |
|
Get Captain Harm Rabb on the case, unless he retired. If so, get Col McKenzy to take the case. Maybe they'll do an Army case. Last I heard, they were in Hawaii or San Diego. Good luck. BTW, You shouldn't have too much trouble getting charges dropped if ya get a good lawyer. Army JAG should be able to help, with or without Mac or Harm. |
| Similar thing happened to my son. The owner of the pot was convicted of possession and the other 3 convicted of frequenting. It's a non-violent crime and he should be able to work it down if not to misdemeanor level to dismissal. Hope you have a good attorney. |
|
A LEO can search the passanger compartment of a vehicle during a traffic stop. It's setteled case law and not a 4th ammendment violation. In many jurisdictions all parties get charged in the hopes that someone will roll. Texasrattler, I was an Army MP (now NG), and if your son pleads to ANYTHING he will be bounced from the MP corps. Get the best lawyer you can find. Preferably someone with specific experience in this type of case who knows the players and can work behind the scenes. The record of his arrest should not cause any issues because you can be arrested for anything. As long as he is not convicted or pleads to ANYTHING it should not affect his military or civilian career.
|
It did in my case. Now, had you said it was the exception rather than the rule, I would be in full agreement. To the OP.... do the following, in this order:
If you're not getting absolute compliance on number one, [as hard as it may be] tell him he's shit out of luck and to get his own damned attorney, ASAP. (which he should probably be doing anyway) |
Not in Texas. Deferred Adjudication is BAD. With one it counts as a conviction for CHL purposes, AND for being able to even be a Private Investigator, Executive Protection officer, etc. |
Not in Texas. |
If the charges are dropped or he is aquitted, he can obtain an expunction. That will erase the arrest records. |
The mentality...reading it is like hearing nails on a chalkboard. Have your kid take a drug test. That's fine, his CO is going to do it anyway. And he'll pass. Because either 1. he actually doesn't use drugs and is telling the truth, as it often "works like that" or 2. he's in great physical shape and hasn't been smoking every day since he's been home, so he won't have built up enough breakdown products to fail a test. I've seen officers arrest everyone in a vehicle when no one is admitting to possession. Just another asinine, dubiously constitutional tactic in the WOD. Lawyer up, anyway. Your local prosecutor probably doesn't talk to dirty citizens anymore and you'll probably have to pay just to figure out where he stands. |
How is an officer arresting everyone in the car for the marijuana when no one is admitting possession a constitutionally dubious tactic? The officer has probable cause to believe that a crime has been committed by the occupants of the car because of the marijuana located in the car. If everyone continues to deny possession, it may not be possible to convict all of them, but there certainly is enough proof to arrest them. |
I think the question is, how did he know the pot was in the car if it was under the seat? If he didn't see it, or smell it, he didn't have probable cause... 
|
I'm a lawyer. Hire a good criminal defense attorney. I don't know what the constructive possession laws are like in TX, but if he has a clean record and is an MP he may be able to swing a deal. Here we have a thing called an ACD (adjournment in contemplation of dismissal), where if they DA agrees to give you one (and the judge approves), the charges are dropped if you stay out of trouble for 6 months. TX may have something similar. |
That is what I thought. The best one can can do is file for Non-Disclosre, which does not erease the record, it only hides it from public records. |
Absolutely not true. If an arrest is made of the driver, for a felony, then the entire car will be searched. If the driver is charged with a traffic infraction and it is one that requires issuance of a summons and not an arrest, NO SEARCH (unless consent obtained- but that is a whole new set of issues- voluntariness). NO SEARCH OF A VEHICLE IS LAWFUL "DURING A TRAFFIC STOP." Under Terry, you can't even pat down the passenger unless you have a reasonable articulable suspicion that the person is presently armed AND dangerous. |
I don't want to hijack this thread, but my IM isn't working. There have been a number of traffic stops where I've been asked if I will allow to a search of my vehicle, and I always say no. Terry is not set in stone. It all depends on what state you're in, and what the local courts will allow. Some states allow a search of the passanger compartment for officer safety. I don't agree with it, but it's true.
|
i've searched a vehicle during a traffic stop. They rolled down the windows and a veritable cloud of weed smoke hit me in the face. so they all got out and i searched it and the driver went to jail. |
That's no longer a traffic stop. And even the Supreme Court (think the case is Sukelow?) has said where there's drugs there's guns and the search is even wider. I was referring to a traffic stop for a TRAFFIC infraction. |
Not true. The US Constitution is a floor, not a ceiling. States can give you MORE rights than that set out in the Constitution (specifically the 4th Amendment) as interpreted by the US Sup. Ct. but states can never restrict your rights BELOW that which is set out by the Constitution as interpreted by the US Sup. Ct. So, no, states cannot allow an officer to search a passenger compartment for "officer safety" unless it comports with Terry and other US Sup. Ct. case law. NO EXCEPTIONS. |
|
This is my last post on this issue because this is is turning into an official hijack. You want to believe you have diplomatic immunity while you're in your car, so be it. Here's a few links that 30 seconds of Google turned up. Two from attorney's dealing with defence, and one from 'The Complete Idiot's Guide to Your Civil Liberties'. Civil Liberties Lawyer #1 Lawyer #2
|
|
first I want to thank all of you for your info and advice. this has been a big shock for me. and a rude awakening for my son. his c.o. said he should be ok and called the d.a. who said that he would not even see the paper work on the case for another 4 to 5 weeks. son said that they were not given any reason why the car was searched.? so I guess I'll have to wait and see what the c.o. can do. if they drop the charges and I understand it correctly he will need to get the arrest expunged from the records? or will they do that when they drop the charges? |
None of that garbage is in conflict with what I wrote. I'm sorry you wasted your time with the google search. I said a search is NEVER authorized during a traffic stop unless consent is given or it turns into something beyond a traffic infraction (like a drug investigation or a Terry suspicion that a crime is afoot). If you are LE or former LE and you do not know this then I am sorry for you and your bailiwick. I read your links and found statements like "No warrant required to search a car"- no shit, but you still need a TERRY suspicion to even detain someone (and his car) let alone search it. Also found this:
Sound familiar? That's from your "lawyer 1", Mark D. Hauser, whose been practicing 3 years less than me. BUT, he at least got that right. If you want to read something accurate and to the point, re-read what I wrote or email me and I'll answer any question you might have (with some time limits). Again, you wrote:
This is absolutely NOT the law anywhere. If states could ERODE 4th amendment rights we'd ALL be FUCKED. You also said:
Please tell me you are joking? This is the law of the land right now, including states. State and local governments cannot legislate around Terry just like they cannot legislate around the 4th Amendment. I don't mind chiming in every once in a while on these threads but it gets old. DO NOT come here and spout dis-information. If you are ignorant of the law (not an insult-most are) and you learn something, great, but don't tell the folks here (some LE) something that is contrary to the US Constitution and act as if it is legal gospel. This is what I do for a living. |
|
For an excellent review of this subject, see npac.state.nv.us/4thAmend-NutShell.pdf
Whether you know it or not, some jurisdictions *are* telling officers that they may briefly 'frisk' the car for weapons just as they would frisk an individual. I have even heard this in an Objective Reasonableness class. Shane |
I doubt anyone is telling officers to "frisk" a car DURING A TRAFFIC STOP with nothing more than an infraction. They would be advocating the commission of a crime. If you have something more concrete, such as specifics, let us know. I'd love to hear LE tell us that they have been ordered to break the law. 
|
Excellent link. What I was trying to state is that although the same absolutes that apply to your home or business dont' necessaraly apply to your person or vehicle while on public property. This is a very very confusing situation, made more confusing by the fact that every different sate canhave their own slightly different interpretation of the law, and all still be legal.
|
Here ya go: findarticles.com/p/articles/mi_qa4440/is_200410/ai_n16065819 |