FOURTH AMENDMENT LITIGATION BEGINS – AND OFTEN ENDS – WITH FEDERAL PRECEDENT
GANT, MIRANDA & PIRTLE: Fundamentals
Arizona V. Gant, United States Supreme Court (2009)
The Fourth Amendment to the United States Constitution requires law enforcement officers to demonstrate:
an actual and continuing threat to their safety posed by an arrestee, in order to justify a warrant less vehicular search incident to arrest conducted after the vehicle’s recent occupants have been arrested and secured.
Everyone has heard about Miranda v. Arizona. The question is always: When does Miranda apply? In Indiana that standard for some time has been:
The objective test of when a reasonable innocent person under the same circumstances would believe that he or she was under arrest or not free to resist the entreaties of the police.
If you are to be questioned while in ‘custody’, you must be advised as follows:
“You have the right to remain silent. Anything you say can and will be used against you in a Court of Law. You have the right to consult an attorney before answering questions and to have a lawyer with you during questioning. If you cannot afford to hire a lwayer, one will be provided for you at no cost if you desire a lawyer to be present during questioning.”
While not as well known to the general public, a Pirtle warning is as important as Miranda. Miranda applies principally to interrogations, while Pirtle applies to the search of your vehicle or residence. Taken from the Indiana Supreme Court case of Pirtle v. Indiana (1975) and in large measure confirmed in Sellmer v. Indiana, Indiana Supreme Court (2006) as applied to ‘consent’ to search of one’s vehicle. Sellmer, a fairly recent synopsis of Indiana law on what constitutes a valid ‘consent’ to search a person’s car.
You have the right to require that a search warrant be obtained before any search of your residence, vehicle or other premises. You have the right to refuse to consent to any such search. You have the right to consult with an attorney prior to giving consent to any such search. If you cannot afford an attorney, you have the right to have an attorney provided to you at no cost.
Right to Consular Notifications
You have the right to have your country’s consulate notified that you have been arrested. You have the right to communicate with an official from your consulate. ” If you ask to speak with a representative of your country’s consulate that request must be honored.
We have done search and seizure challenges for over 20 years on all criminal arrests ranging from the most serious felonies to misdemeanors. As they apply to one’s home, to property, to one’s vehicle, and when the search occurs on the street.
Fourth Amendment Inquiry
Every fourth amendment inquiry, on every vehicle stop begins with fundamental legal analyses:
- Was there ‘Reasonable Suspicion’ to Stop Your Vehicle
- Was the stop of my Vehicle legal? Was this a Pretextual Stop ?
- Can a valid ‘Search and Seizure’ follow if my only violation is an Infraction?
- The situation which is more ripe for abuse than any other ‘stop’.
- An Officer’s favorite question particularly for the young or naive’:
- Is there anything in your car that I need to know about ?
- Did you actually ‘consent’ to a search, or were you coerced ?
We’ll help you sort through questions, such as:
- Were you stopped for a valid reason? Was it a ‘random license plate’ check ?
- Was there ‘reasonable suspicion’?
- Was the stop based on an ‘anonymous tip’?
- Was this a DUI Enforcement Officer looking for ‘signs of intoxication’?
- Was this a DUI/DWI roadblock type stop, and were procedures demanded by Indiana precedent adhered to?
All future proceedings stem from the LEGALITY of that stop. You will want an Indianapolis DUI defense attorney who is thoroughly versed in 4th Amendment analysis.
Other 4th Amendment Precepts with Vehicles: Exceptions to Search Warrant Requirement
- A Terry v. Ohio: ‘Pat down’ search of outer clothing for weapons. No further. A ‘baggie’ is not a weapon.
- ‘Officer Safety’ Exception to Search Warrant: Must have a particularized reasonable belief person/officer in danger.
- Was this stop based on a cell phone tip? Officer must independently confirm validity of caller and information.
- ‘Automobile Exception’ to Search Warrant: Due to its inherent mobility, though not if parked and surrounded by police.
- ‘Plain View’ not always in eye of beholder (officer). Incriminating character of evidence must be immediately apparent.
- Inventory/Impoundment Search: Often will require warrant at the scene, as no exigent circumstances generally exist.
- Is the stop/arrest one from profiling: High crime neighborhood? Time of Night? Color of skin? All suspect justifications.
At your first appointment, your Indianapolis DUI attorney should review with you:
- An Exhaustive History of the Events Leading to this Arrest. Plan to retrace and preserve critical pieces of evidence.
- History of Client Examination of Controlled Substance, DWI, DUI, OWI stop and any subsequent questioning and search of person and vehicle. Applies equally if one’s home has also been searched. This inquiry is as important if there has been an allegation of contraband/controlled substances found in the car pursuant to a search that may or may not have been proper.
- Consideration of Motion to Suppress. Should this arrest and search never have taken place ?
- Determination of Need for Judicial Review Hearing
- Review of Driving Record for Potential Impact of Habitual Traffic Violator
- Client History: All medications, High Blood Pressure, Glasses, Contacts, Breathing Difficulties, Heart Attack, Stroke, Manual Dexterity and Physical Difficulties, Diabetes. These Can Dramatically Impact your Breathalyzer Result
- Third Party Subpoenas to Obtain Documents to Dept of Toxicology / Crime Lab
- Freedom of Information/Sunshine Law requests to obtain records not readily supplied
- Consideration of Need for Post Conviction Relief
People ask us on a monthly basis, whether a BAC test, or Blood Draw result of a .08 and/or a .09 test result is just impossible to overcome legally ? Or if there is no test result, but only the opinion of the arresting officer. They are weighing the option to simply plead guilty to just get it behind them, as they think ‘you can’t beat a machine’.
WE WILL PUT OUR RECORD FOR JURY TRIAL SUCCESS on such a Blood Alcohol reading against any attorneys in this area. These cases are indeed winnable, and we’ll be delighted to show you how.
Sample Estimates of Costs Associated with this arrest:
- Costs of towing and storage on your vehicle: $300 – $1200
- Bail for your release, typical averages: $250 – $2,500
- Fines and Court Fees: $500 – $2,500
- Mandatory Education and Treatment through Probation: $350 – $2,000
- Electronic Monitoring or Ignition Interlock, if required: $730 – $2,250
Alternatives to incarceration when needed
When one gets to advanced stages of DUI/DWI complications, your defense attorney needs to be intimately familiar with alternatives to incarceration such as community corrections programs, work release, home detention, ignition interlock and daily reporting, as well as involvement in alcohol treatment and counseling. Courts can be quite amenable to various alternatives depending on the facts of the case, the outlook by the prosecution, as well as the attitude and motivation of the individual before the Court. In twenty five years of providing legal defense dealing with DUI and Substance Abuse cases throughout Indiana, our Law Office has developed an extensive network that incorporates the many facets of all of these providers. Physicians, Toxicologists, Psychiatrists, psychologists, counselors in virtually all treatment programs throughout central Indiana (and some beyond).
As your defense attorney, we are here first and foremost to defend your Controlled Substance, DUI case to the utmost. We’re also here to help you get through this ordeal from beginning to end with dignity intact, while achieving the optimum result.
Mr. Coffey has lectured for years on alternatives to incarceration. We have established years of relationships with various treatment providers in Indiana whose reputations for commitment to assisting the client facing the criminal justice system for the first or the tenth time, are well recognized by the Courts we practice in. As an expert in such matters Mr. Coffey has been asked at times to comment to the press, based on pending cases and his reputation as an expert in these areas.