Illegal Search and Seizure – Know What to do if it Happens to You

officer with evidence bagOne of my clients recently “walked” after a special unit of the Nebraska State Patrol trained in drug enforcement caught him with about $40,000 worth of illegal drugs. Was it fancy lawyering that got him off? Well, I think it was good lawyering, but that’s not all.  My client went free from the felony drug charges against him because of laws that protect us all, and because of his smart moves during the police encounter leading to his arrest. It’s important to understand, however, that the laws that set my client free aren’t intended to protect the guilty. Rather, they are to protect the innocent – to protect us all. That’s why, when it comes to illegal search and seizure, you should know what to do if it happens to you.

Illegal Search and Seizure – It Could Happen to You

We’re all guaranteed Constitutional protections from government intrusion on our privacy — innocent and guilty alike. With few exceptions, the police can’t legally bother you with a stop, or search you, unless there’s a credible reason to believe you’re breaking the law (ie. probable cause). But can’t and won’t are two different things.

As we’ve seen in the news, despite laws against unreasonable search and seizure, it still happens. Whether or not you think you’re doing something illegal, this is stuff everyone should know. After all, it’s not only guilty people who are subjected to unlawful police searches. It could happen to you, too. While most of the law enforcement officers I know are good cops who don’t purposefully violate citizens’ rights, everyone makes mistakes sometimes.  Law enforcement officers are no different.

Why my client walked

In the recent Douglas County, Nebraska, felony drug case in which my client “walked” instead of serving what could have been a lengthy prison sentence, it happened because the court threw out the evidence against him. All of it.

I made a motion to the court and the judge agreed with me. He refused to allow into evidence the tens-of-thousands of dollars worth of drugs the State Patrol seized from my client’s suitcase, or anything else found during the search. The judge suppressed the evidence because he agreed that it came from an illegal police search. That meant the prosecutor had no choice but to drop the felony drug charges.

I won that Motion to Suppress for my client because law enforcement violated his Constitutional rights with an illegal search. They stopped him without a good reason and they searched his bags without a warrant when there was no exception allowing them to do it. That rendered the evidence they got during the search inadmissible.

I also won because, during the stop, while the Nebraska State Troopers were violating his rights with an unlawful search, my client made the right moves.

What my client did during the stop that was smart

Pay attention to this part. I’m going to tell you exactly what my client did that helped him walk out of the courthouse after being caught with tens of thousands of dollars worth of drugs.

  1. He didn’t run from police when they approached him
  2. He didn’t argue, resist or obstruct during the encounter

It’s pretty simple stuff, but it’s not always easy. Emotions can run high during a police encounter, especially if you feel like they’re violating your rights. In my client’s case, staying calm and cooperative and not arguing or telling the troopers how to do their jobs (like they’d listen anyway) paid off for him. Had my client done any of the above, his case could have ended much differently.

How you can be smart too

If law enforcement stops you, whether or not a search follows, the best things to do to help yourself and your lawyer down the road (should the need arise) are:

 

 

If the police perform an illegal search and find evidence, a good lawyer will try to have it suppressed so it can’t be used in court. If the search was without a warrant, there may be a chance your lawyer can find a legal argument to give you some leverage in court.

Don’t make it harder on your lawyer by doing something during the cop encounter that could end up making an exception to the warrant rule, clock more charges on your docket, or give the prosecution something to use against you in court.

Remember, you aren’t going to settle any disputes over your rights there on the scene. Those will all have to be hashed out in court later. All you are likely to accomplish by resisting police or arguing with them is to make more trouble for yourself.

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 


For details about the author, Hightower Reff  Partner Attorney and criminal defense lawyer Susan Reff, visit her profile page.

Find out more about how Susan and Hightower Reff can help with your criminal case. 

If you need help with a criminal defense case, contact Hightower Reff Law todayand come visit with Partner Attorney Susan Reff at the firm’s Omaha office

Nebraska DUI and the DMV – 7 Things You Should Know (Infographic) (DUI Process Series Part II)

girl-dui-dmvThe holidays are a time to celebrate, and a favorite time for law enforcement to look for drunk drivers. Of course, drunk or drugged driving can be deadly and you shouldn’t do it – during the holidays or any other time. It also carries legal consequences, including court issues, as well as issues with Nebraska DUI and the DMV.

If you’re ticketed or arrested for driving under the influence in Nebraska, DUI and the DMV process is something you’ll need to know about.

The DMV process doesn’t impact the court proceedings regarding your DUI, but it does affect your ability to drive legally. (For more information about the court end of the Nebraska DUI process, see the first part of this series, Nebraska DUI Court Process – Ten Things You Should Know.)

This information is meant to make things more clear, but it’s not a substitute for hiring an experienced DUI Lawyer. When you do sit down with your DUI defense team, these seven things about the Nebraska DUI DMV process may help you feel less anxiety during what can be a scary time.

 

 

More on ignition interlock

The ignition interlock device attaches to your car’s ignition system. It requires you to pass a breathalyzer test before your car will start. If you qualify for the ignition interlock permit, you’ll be allowed limited driving privileges.

But wait, there’s more…

Your Nebraska DUI DMV plight isn’t finished after you go through all of the things in the infographic, however. There’s even more to do.

After all of the stuff in the infographic is finished successfully, you have to start the process to reinstate your driver’s license with the DMV. To accomplish that, you’ll have to do even more things. Depending on your DUI offense, you may have to pass a driver’s test, pay a reinstatement fee, and complete a chemical dependency evaluation, treatment and education.

Nebraska DUI and the DMV – Don’t go it alone

I’ve been representing clients in cases involving Nebraska DUI and the DMV in the Omaha area for many years. I know the ins and outs of both the DUI court process and the DUI DMV processes. Both can be complicated, and it’s easy to make a mis-step if you don’t have good legal support.

 

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 


For details about the author, Hightower Reff  Partner Attorney Susan Reff, visit her profile page.

Find out more about how Hightower Reff can help with your DUI case

If you need help with a DUI, contact Hightower Reff Law today at the downtown Omaha office, and arrange a time to talk with Partner Attorney Susan Reff

 

What Happens if You’re Charged with a Felony in Nebraska (Infographic)

felony-hightower-reff-law-omahaIt can be a scary not knowing what happens when you’re charged with a felony in Nebraska, if you end up on the wrong end of the law.

A felony is the highest stake criminal charge you can face. If you’re convicted, you lose many of your basic rights. You can’t vote, legally have a gun, serve in the military, be issued a passport, hold certain licenses, or get public housing… and the list goes on.

Clarity = peace of mind

When you know what happens when you’re charged with a felony, you’re more clear about things, and that can bring with it peace of mind – and an easier time assisting in your own representation.

Take a look at this Nebraska Felony Roadmap. It lays out the Nebraska felony criminal court process from start to finish, with several different scenarios.

You may be surprised to learn that, for some cases, in some areas of Nebraska, there’s an option that could keep the charge off your record – drug court or diversion.

 

The entire process from citation or arrest to sentencing can take a year or more. If you’re convicted, you have a limited time after sentencing to file an appeal.

Good support is key

The Hightower Reff Law criminal defense team in Omaha helps good people in bad situations. We have for many years. Getting a good criminal defense lawyer onboard who has a good team behind them is crucial when you’re charged with a felony, because there’s a lot on the line. Along with the peace of mind that comes with understanding the process, you also need the peace of mind that comes with good legal support.

 

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 


For details about the author, Hightower Reff  Partner Attorney Susan Reff, visit her profile page.

Find out more about how Hightower Reff can help with your criminal case. 

If you need help with a criminal defense case, contact Hightower Reff Law todayand come visit with Partner Attorney Susan Reff at the Omaha office. 

So You Got Yourself Named in a Felony Warrant, Now What? 
Part V – To Appeal or Not to Appeal

shutterstock_285195986-thumb-400x267-65299A felony warrant turns your world upside down. Not only are your freedom and your future on the line, if it’s your first arrest, you’ll have no idea what to expect. This criminal law blog series will give you the basic information you’ll want to know if you or a loved one is facing a criminal charge in Nebraska.

In this installment, we cover the decision to appeal (or not) a ruling in your case. In a felony case, you may have received a stiff sentence that will affect your life for many years, so it’s important to weigh your appellate options early and thoroughly. You have a lot to lose if you don’t.

Can you even appeal it?

The first thing to figure out is if you even have grounds for an appeal. One of the biggest misunderstandings people generally have about the appeals process is the idea that you can appeal a ruling in your case because you don’t like it. This isn’t true. There has to be a legal reason for the appeal. Legal reasons include violation of Due Process, insufficiency of the evidence, technical issues of law (jury instructions, evidence admissibility, experts), and excessive sentence.

Figuring out whether there are appealable issues in your case can be complicated. It’s good to have the advice of a trusted attorney to guide you in this part of the decision before you waste a lot of time and money on an appeal the court may see as frivolous — and ultimately will dismiss.

It’s Not a Do-Over

Another common misunderstanding comes from a belief that an appeal is an opportunity for a new trial or sentencing hearing. Not so. During an appeal, the appellate court reviews the information the trial court had in front of it when it made its ruling. You won’t get a chance to present new evidence.

In an appeal, the appellate court will only consider the record of the trial court and the appellate briefs submitted by the parties. Both the appellant (formerly called the defendant) and the prosecuting attorney will have the opportunity to file briefs. The appeals court may also allow oral argument, which it would also consider in its decision.

How Pleas Affect Your Right to Appeal

Entering a plea doesn’t necessarily mean you give up the ability to appeal. You may still be able to appeal certain constitutional and statutory claims like ineffective assistance of counsel, excessive sentence and sentencing based on race.

This list isn’t exhaustive, there may be other issues you can appeal as well. Like many other aspects of appeals, this part can be complicated. Your best bet is to have a lawyer guide you.

Time Is Not on Your Side

As soon as your sentence is pronounced, the clock starts ticking on filing your notice of appeal. If you don’t file within the time limit imposed by law, you will not be able to appeal, so it’s important that you don’t wait and that you quickly get legal advice from a criminal law attorney experienced in appeals.

The limited time you have to file your appeal may not even be your biggest reason to make your decision quickly. Appeals are not speedy. They can take months, or even years and, depending on your case, you may sit in jail the entire time your appeal is pending. The faster you get it filed and move forward, the faster you will have a resolution.

Get Help Early

The best thing you can do if you are accused of a felony (or any crime) is to get experienced legal help from the beginning. My power to help you as a lawyer can be lessened if my client has done something to damage his or her case before I get involved.

If you need help with a felony or other criminal matter, contact Hightower Reff online, or call us at 402-932-9550.

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 

So You Got Yourself Named in a Felony Warrant, Now What? 
Part IV – Criminal Sentencing – It’s About More Than Just Time

shutterstock_218715781-thumb-400x267-65269-thumb-500x333-65270A felony warrant turns your world upside down. Not only are your freedom and your future on the line, if it’s your first arrest, you’ll have no idea what to expect. This series will give you the basic information you’ll want to know if you or a loved one is facing a criminal charge in Nebraska.

In part one of this criminal law series on felonies, we laid out your options once you learn of the warrant and what happens once you’re arrested. Part two covered the nitty gritty of plea bargains. In the third installment, we discussed the trial.

Now, in Part four, we cover the sentencing process.

The Sentence: No Rabbit Out of a Hat

On TV legal dramas it seems like the judge just pulls a sentence out of a hat. In the real world, that’s not how it works.

The court does have some discretion when sentencing for felonies, but the parameters are governed by Nebraska Sentencing Guidelines. The guidelines govern things like the minimum and maximum sentences for certain felonies and where the sentence is to be served.

Sentencing Guidelines Don’t Stop a Bitch

Don’t make the mistake of thinking that the Nebraska Sentencing Guidelines are going to save you from a bitch (slang for habitual criminal sentence). The Guidelines make it clear that they do not impact the habitual criminal sentencing laws.

PSI: Nebraska

Along with the Nebraska Sentencing Guidelines, the judge relies on a pre-sentence investigation (PSI) report when deciding a felon’s sentence. The PSI contains:

  • an analysis of the circumstances surrounding the crime
  • the offender’s history of delinquency or criminality
  • the offender’s physical and mental condition, family situation and background, economic status, education, occupation, personal habits and any other matters that the probation officer deems relevant or the court directs to be included

The PSI can also include any written statements a victim submits to the county attorney or probation officer.

The court can order you to undergo psychiatric observation and evaluation as part of the PSI procedure. Your attorney can add to the PSI with character letters from your friends, family or co-workers as well as other positive things like good employment records and information about your community involvement.

The Hearing

The court will sentence you at a sentencing hearing. You’ll have the opportunity to address the court — and victims may as well. Depending on the circumstances, it may or may not be helpful for you to address the court, so you’ll need to make that decision with your attorney, just one of the many reasons having a good attorney to guide you throughout the PSI process is important.

Get Help Early

The best thing you can do if you are accused of a felony (or any crime) is to get experienced legal help from the beginning. My power to help you as a lawyer can be lessened if my client has done something to damage his or her case before I get involved.

If you need help with a felony or other criminal matter, contact Hightower Reff online, or call us at 402-932-9550.

Next Time…

Watch for Part V of our felony arrest series: To Appeal or Not to Appeal, That is the Question.

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 

So You Got Yourself Named in a Felony Warrant, Now What? 
Part III: What to Expect When You’re Expecting… to Go to Trial

shutterstock_170949320-thumb-400x266-65277A felony warrant turns your world upside down. Not only are your freedom and your future on the line – if it’s your first arrest, you’ll have no idea what to expect. This series will give you the basic information you’ll want to know if you or a loved one is facing a criminal charge in Nebraska.

In Part I , we covered your options once you learn of the warrant and what happens once you’re arrested. Part II covered the nitty gritty of plea bargains.

Now, in Part III, we shed some light on what happens between your arrest and trial.

The Waiting is the Hardest Part

If you don’t reach a plea, be prepared to wait a while for you trial. Because of busy courts and legal wrangling, it can take a year or more for a felony case to reach trial in Douglas County, Nebraska.

A lot of preparation needs to happen before a felony trial, which also adds to the wait. Most of the work on your case, in fact, is done before your trial even starts. Some of the work occurs right at the start of the case, so your attorney can try to get your case dismissed or pled down right off the bat. Attorneys for both sides want to know the facts of your case inside and out and put together a game plan both before and during your trial.

To avoid surprises, lawyers on both sides ask questions of witnesses and get documents, physical objects and photos that the other side plans to introduce to the court to support their side of the case.  Your lawyer may conduct an independent investigation by talking to experts, interviewing witnesses, subpoenaing documents and even visiting the scene of the alleged crime. While much of this is done at the very beginning of the case, the work continues to the day of trial; and can take months.

Lawyers also make sure they know the current law that applies to your case before trial starts. Unlike T.V. lawyers, real attorneys don’t carry a catalog of statutes and cases in their heads to recite on demand. Most know the most important ones but the law is huge and changes frequently. That means a lot of pre-trial research and studying so the lawyers know their stuff before they walk into the courtroom.

Magic Evidence: Now You See It; Now the Jury Doesn’t

What evidence the jury sees during the trial and the instructions the judge gives them are crucial to your case. Your lawyer will try to find good reasons under the law to keep the evidence that hurts your case out of the trial through procedural motions.

Additionally, your lawyer will try to convince the judge to use jury instructions that are most favorable to you, while the prosecuting attorney will try to get the judge to use those that are most favorable to a conviction.

Settling On the Courthouse Steps 

All the months of preparation and hard work don’t always end in trial. Sometimes you reach a plea agreement on the day of trial — known as settling “on the courthouse steps.” If that happens, your lawyer’s preparation (and your legal expense) was not wasted. The clarity both sides gained through that preparation and legal wrangling most likely led to the prosecutor’s decision to offer a plea and your decision to accept it.

Get Help Early

The best thing you can do if you are accused of a felony (or any crime) is to get experienced legal help from the beginning. My power to help you as a lawyer can be lessened if my client has done something to damage his or her case before I get involved.

If you need help with a felony or other criminal matter, contact Hightower Reff online, or call us at 402-932-9550.

Next Time…

Watch for Part IV of our felony arrest series: Criminal Sentencing – Determining the Time You’ll do.

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 

Got a Felony Warrant? Here’s What to Expect – Part I, Lawyering up and Your Arrest

shutterstock_256858591-thumb-400x261-65250Finding out there’s a felony warrant for your arrest turns your world upside down. Not only are your freedom and your future on the line – if it is your first arrest, you’ll have no idea what to expect. This series will give you the basic information you’ll want to know if you or a loved one is facing a felony criminal charge in Nebraska. 

In Part I, you’ll learn your options once you learn of the warrant and what to expect once you are arrested.

(Don’t) Take it on the Run, Baby

You will be taken into police custody – usually by walking into the police station. If you hire us, we will take you in and be with you through the booking process. 

Whether you have a preliminary hearing will be up to you and your attorney, and will depend upon your case. During the preliminary hearing, the prosecutor has to show probable cause for every element of the crimes with which you are charged to show the court that they have enough evidence to go forward with the case against you. 

It’s a catchy sounding song lyric “take it on the run,” but not a good idea if you find out there’s a felony warrant out for your arrest. No attorney worth their salt would ever tell you to do it. Neither will Hightower Reff Law. What you should do – call us BEFORE you talk to the police or turn yourself in. 

We can contact the police for you and arrange for your peaceful, quiet surrender, and make sure your rights are protected from the beginning of the case.

We will talk to the police for you in most cases. What you say to them can be used against you, but what we say to them can’t.  Also, it’s perfectly legal for police to trick you into saying things –  but we know all the tricks. 

The Arrest

A police officer will advise you of your rights and the charges against you before or after booking. During the booking process, you will be finger printed, photographed, and your personal belongings will be inventoried and taken for safekeeping. For this reason, we advise clients to leave all watches, money, and jewelry at home when they turn themselves in. 

Depending on the charge, you may be held in jail pending a hearing to set your bond. In most felony cases, you will go to jail when you surrender. 

Shut it, shut it, shut it

You have the right to shut it. So, shut it. You have the right to remain silent – that means to NOT speak to the police. In most cases, that is exactly what we will advise you to do. Despite what you may have seen on your favorite crime drama show, people almost never talk the police out of arresting them. Usually, they just add nails to their coffins instead. 

First Court Appearance

After your arrest, you will have a hearing in county court called an Arraignment and Bond Setting Hearing (unless you are charged with a felony and the prosecutor has taken special steps. Then, you may have this hearing in district court). 

You will appear in court, the judge will advise you of the charges against you and possible penalties, and you will enter a plea. Your attorney will talk about plea options with you before the hearing. 

In felony cases, you usually can’t enter a guilty plea in at the initial appearance, even if you could, we recommend our clients enter a not guilty plea while we do the ground work on the case that’s necessary to do a full evaluation of your best options. 

You will also tell the court whether you want to exercise your right to a preliminary hearing. 

Preliminary Hearing – Maybe yes, Maybe no

If you waive the preliminary hearing at the initial appearance, the judge will send your felony case to district court. 

If you have a preliminary hearing and the prosecutor is able to provide the required probable cause – your case will be also sent to district court or, “bound over.” 

Next Time in the Series

Watch for Part II of our felony FAQ series – To Plea or Not to Plea.  

In the meantime, if you or a loved one needs help with a criminal case, Hightower Reff can help. Contact us online, or call us at 402-932-9550

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts.