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 Misdemeanor Charges – 6 Things you Need to Know (Infographic)

nebraska-misdemeanorsIf you’re kicking off the new year with Nebraska misdemeanor charges hanging over your head, a bit of knowledge and clarity about the court process may help you feel more at ease.

There are seven classes of misdemeanors in Nebraska. They run the gamut in possible sentences – from only a relatively small fine to a rather hefty fine and jail time.

Regardless of the misdemeanor charge, the process you’ll go through is the same, except with a DUI. Although the court process is the same for a misdemeanor charge of driving under the influence of alcohol or drugs, there’s also a Nebraska DMV process you’ll have to deal with.

 

Appeals

If you’re convicted of Nebraska misdemeanor charges, you may be able to appeal. However, you must have legal grounds for your appeal.

In an appeal, the higher court looks at the legal process that led to a conviction. The appeal can also address other issues like an excessive sentence.  However, an appeal isn’t a chance to present new evidence. That’s not allowed. The appellate court will only consider the trial court’s record and the parties’ appellate briefs.

Figuring out whether you have appealable issues can be complicated. You need the advice of a trusted attorney to guide you before you waste a lot of time and money. If the court sees your appeal as frivolous, it’ll be dismissed and you’ll be out of luck – and probably quite a bit of money.

It may surprise you to learn that even if you entered a plea, you may still have grounds for an appeal. Appellate practice can be complicated. As with your case, your best bet is to have a lawyer guide you in the appeals process.

Get Help with Nebraska Misdemeanor Charges Early

The best thing you can do if you’re accused of a Nebraska misdemeanor (or any crime) is to get experienced legal help fast. You can hurt my power to help you as a criminal defense lawyer if you do something to damage your case before I get onboard.

It’s best to consult with your lawyer before speaking with law enforcement or making a move of any sort.

 

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

Three Things You Should Know if You’re Charged with a Misdemeanor in Nebraska

Our criminal defense team at Hightower Reff Law helps good people in bad situations. We’ve done it for many years. We get it. When youthree things you should know misdemeanors‘re charged with a misdemeanor in Nebraska, the scariest part can be not knowing what to expect. That’s why we try to make things as clear as we can for our clients. One of the things that helps is filling them in on some of the legal basics.

No article can replace the advice of a good criminal defense attorney, and it isn’t intended to do so. However, this article may give you some information to consider while you search for the right lawyer for your case.

1. Charged with a Misdemeanor Doesn’t Always Mean Jail

The first thing you should know – if you’re going to be charged with a misdemeanor in Nebraska, you aren’t always arrested and taken to jail. Law enforcement may issue a ticket and release you on your own recognizance instead. Regardless, always remain silent until you talk to a lawyer. It’s smart to hire an attorney or ask for court appointed counsel as soon you can.

If you’re taken to jail to be processed after you’re arrested, you may be able to bond out right away without seeing a judge.

Next, there will be an arraignment hearing at which the court will read the charges against you, and advise you of your rights.

2. You Could have a Chance to Keep the Charges Off Your Record…Maybe 

The second thing you should know if you’re charged with a misdemeanor – if it’s your first offense, you may qualify for pre-trial diversion. This may happen for cases like minor in possession, possession of marijuana under an ounce, shoplifting and, in Sarpy County, DUI.

Diversion program requirements and lengths vary by county, but if you qualify and complete the program successfully, the criminal charges will be dismissed and no conviction will show on your record.

3. You Might Have to Be Patient – This May Take Awhile

The third thing you should know if you’re charged with a misdemeanor – if diversion isn’t an option and the case moves forward, your attorney will start preparing your case for trial. He or she will talk to law enforcement and prosecutors will evaluate the evidence against you, but it may take a while to get to trial.. if you get there.

Your attorney may also try to negotiate a plea deal for you, depending on the strength of the evidence against you and the other circumstances of the case.

If you aren’t able to reach a plea agreement, or your lawyer advises you not to take a plea deal, there may be pre-trial hearings or motions hearings before your case gets to trial.

If you’re found not guilty after a trial, the case will be dismissed and it’s over.

On the other hand, if the prosecution is able to prove the charges “beyond a reasonable doubt,” and you’re found guilty, you will be convicted of the misdemeanor offense. Your sentencing will happen at a later hearing, after a completion of a pre-sentence investigation.

The entire process from citation or arrest to sentencing can take up to six months, so you might need to be patient and let your attorney do his or her job. If you rush into a decision that isn’t in your best interest just to get the case over with, you may have to deal with the consequences for a long time.

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 at our main website.
To learn about Hightower Reff’s misdemeanor and felony criminal law practice, visit our main website.

Teen Arrest: 4 Things to Know if It Happens to Your Son or Daughter

You probably never think your child will be arrested (technically, in Nebraska, with someone under 18, the law calls it “temporary custody,” not arrest). But like any disaster, it’s best to plan for the unexpected and have these discussions with your teen ahead of time should the worst happen.

Even the best kid can make a mistake. And innocent people get arrested. It could happen to your teen. They should be prepared if it does, and so should you.

Here are four things you should know and discuss in case your teen is taken into police custody:

1. Be quiet, but don’t be a jerk.

When an underage person taken into police custody, it’s not the same as when an adult is arrested. The police may not let the child make a phone call, except to call a lawyer. Nebraska law says police “shall” take “reasonable” measures to contact the child’s parents, but the term “reasonable” is subject to interpretation. In practice, parents may not be called right away.

In the meantime, the teen should not tell the police anything except their name, address and phone number and provide their State issued photo identification, if they have one.

It’s best that they stay silent until a lawyer hired to represent their interests speaks to them. No matter what the police say to them, they should tell the officers that they want to talk to a lawyer. Tell your teen to be nice about it though. They can say something like: “I’m sorry, but my parents told me I’m to only give you my name, address and phone number and ask you to call them and tell you that I need a lawyer.”

2. Get a lawyer right away. 

If your teenager is arrested, they have no right to see you and you have no right to see them. They do, however, have a right to have an attorney present during police questioning. Make sure they know that.

So they need to ask for a lawyer. Starting to see a theme? The most important thing you can take away from this article: make sure your teen knows if they are arrested they need to ask for a lawyer and not make any statements whatsoever to police.

3. Don’t think the police officer is your BFF or your teenager’s.

The police officer may be a very nice person who wants to do what’s right, but they are there to close a case. They are not your friend or your teen’s friend. Don’t talk to them and don’t let your teen talk to them without a lawyer. They aren’t going to talk themselves out of trouble, and you aren’t going to talk them out of it either

Also, the police may have you believing that it’s in your child’s best interest to “get help” in the form of criminal prosecution or juvenile court involvement for whatever legal infraction or crime they are accused of. That is usually not the best solution to whatever may be troubling your teen. Remember, the criminal judicial process isn’t therapy. The criminal justice system’s main purpose is to protect society, not help your child.

The juvenile justice system, on the other hand, (which is separate from the adult criminal court) serves a dual role by protecting society and trying to help troubled kids, but many families find that maintaining private control over their family matters is preferable to the State taking over – which is what happens when your teen is involved in juvenile court. Also, depending on your their age, there is no guarantee your teen’s case won’t end up in adult criminal court.

4. Remember it’s not about you.

If law enforcement or social workers start questioning you (the parent) about things involving you, see above. Talking without a lawyer present often does more harm than good. Focus on the issue at hand and get a lawyer.

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.