This content was written for Cale Law office
If you’re looking for serious criminal defense, then call Tulsa criminal defense attorney Stephen Cale at 918-277-4800. Attorney Cale with the Cale law office has nearly two decades of experience and focuses his practice on criminal defense. Your initial consultation is free.
In one case the defendant was indicted for possession with intent instructed cocaine and aiding and abetting. He filed a motion to suppress cocaine found in his car. He contended that the detention of the border patrol checkpoint was an unconstitutional seizure of his person violation the fourth amendment. Additionally, he said that his consent to search was invalid. Lastly said that the search exceeded the scope of his consent. Here are the facts of the case.
The defendant was traveling on an interstate that has a board patrol checkpoint near and thus Chris’s Mexico. The defendant was a passenger in the front seat. At the checkpoint, a border patrol agent told the driver to go to a secondary inspection area. The agent questioned the driver the defendant for no more than a minute or two. Yes, the driver in the defendant about the citizenship and immigration status. Both driver the defendant speak and understand English., The agent noticed that there is no permanent tag for the car, but only a temporary one. Instead, he just by the car couple weeks ago. The agent noticed that every time he asked the question, the driver the defendant looked at each other before answering.
The defendant also stated that on vacation in Florida was driving back from Miami. The driver said he would go to California looking for work. The agent did not see much luggage in the car. He then, that there was a lot of drugs come from it Miami goes to California and asked driving defendant then address the car. Both stated that they did not. The engine then asked them if he if he could search the car. Both of them consented. The agent found three packages of cocaine the cars rear quarter panel.
The defendant asserted that his detention at the checkpoint was unconstitutional. He argues that tension that the secondary inspection area was lawful only when the agent has a brief inquiry into solely on the question of citizenship. The defendant further claims that you to or inquiry into any area other than citizenship constitutes an unconstitutional seizure is a person. Our the 10th Circuit Court of Appeals disagreed.
The fourth amendment provides that the right of people to be secure in the persons, and effects, against unreasonable searches and seizures, shall not be violated, said Tulsa criminal defense attorney Stephen Cale. The amendment does not guarantee a right against all searches and seizures, and only against unreasonable ones.
There are three categories of police – citizen encounters. The first one is a consensual encounter. This occurs by voluntary cooperation of the citizen in response to non-course of questioning. A consensual encounter is not a seizure within the meaning of the fourth amendment. The second type is an investigative detention. This is also referred to a Terry stop. A Terry stop is a seizure within the meaning of the fourth amendment. However, it does not need to be supported by probable cause. Investigative detention satisfied where specific and articulable facts in a rational inference from those facts give rise to reasonable suspicion that a person has committed or is committing a crime. Lastly, and arrest is a seizure characterized by very intrusive or lengthy search or detention. The rest is justified only where there is probable cause to believe that a person is committing or has committed a crime.
There is no bright line test for determining a consensual encounter from a seizure, or whether a seizure sees the bounds of an investigative detention. So, the court will determine whether defendant’s detention was reasonable by looking at the totality of all the circumstances. The US Supreme Court is held that stops for brief questioning routinely conducted permanent checkpoints are consistent with the fourth amendment and don’t need to be authorized by a warrant. A border patrol agent may question the driver and passengers of other citizenship as well as their immigration status. A page may also ask him to explain suspicious circumstances. A further detention must be based on consent or probable cause.
With the case at hand, the border patrol agent was questioning the driver in the defendant and that lasted no more than a minute or two. During a period of time, the agent asked the driver in the defendant after citizenship and immigration status. The driver and the defendant hesitated and look to each other before answering questions. The defendant’s car had only a temporary license tag. The defendant claimed it was on vacation but had very little luggage.
The agents questioning about drugs account for just and moment of the defendants detention was based upon specific and articulable facts rational inferences a brief stop of a suspicious individual in order to determine his identity or to maintain status quo momentarily all day more information will be reasonable in light of the facts known to the officer at the time.
Border checkpoint searches are justified only by consent or probable cause to search, said Tulsa criminal defense attorney Stephen Cale. Consent to search is valid if it is voluntary. It cannot be the product of duress or coercion whether expressed or implied. There has to be a clear and positive testimony that the consent was without a doubt and specific and friendly and intelligently given. Also, the prosecution must prove consent was given without duress or coercion whether expressed or implied. Courts are given the discretion to indulge in every reasonable presumption against the waiver of federal constitutional rights in the must be convincing evidence of such work rights were waived. Determining whether not consent was voluntary is a question of fact to be determined from the totality of circumstances.
When reviewing the denial of a motion to suppress, the trial court’s finding of having must be accepted by the appellate court a list clearly erroneous. The last argument is that the search exceeded the scope of the consent. The defendant heard argues that the agent requested permission to look through the defendant’s car and as such, was so vague the defendant cannot understand the extent of the search. Whether the search is within the bounds of consent is a question of fact to be determined by the totality of all the circumstances. An appellate court will upon the trial court’s determination let’s is clearly erroneous. In this case, both the driver and the defendant stood by and watched as the search was conducted.
The search began with the trunk. The agent looked underneath the rug in the trunk and throw the truck padding. He asked for and received permission to look through the few pieces of luggage in the truck. He then looks inside the car and spawned a screwdriver lying on the floorboard. Looked in the glove box, the dashboard, and in the front seats. He then examined several other areas of the car. He knows two screws missing from the cars left rear quarter panel of the screws were loosened and had markings on them.