Misdemeanors And Legal Issues That A Criminal Defense Attorney Will Likely Look For:
An experienced criminal, defense attorney will likely review the specific statute a client is charged under to determine if the alleged facts satisfy the elements listed in the statute. If the facts do not support the required elements of the charge, the defense attorney may elect to challenge probable cause at arraignment or may file a pr-trial motion to dismiss for insufficient evidence under State v. Knapstad.
If the defense attorney determines that the alleged facts do support probable cause for the charge, the attorney will review the discovery to ensure that constitutional and due process rights were not violated at any stage of the investigation and arrest. Discovery is a term for the entire collection of the government's evidence against you. Discovery consists of the body of materials the government intends to offer as proof to support a conviction including but not limited to law enforcement reports, videos, photographs, witness statements, and any evidence collected at the scene. Below are some common questions a defense attorney will ask to make sure a client's constitutional and due process rights were respected.
Search and Seizure Issues
- Was the stop or contact lawful?
- Was my client free to go or was my client seized?
- Seizure of property results when there is a meaningful intentional interference with an individual's possessory interest in that property by government action.
- Seizure of a person results when there is a meaningful intentional interference, however brief, with an individuals freedom of movement by government action.
- Are there unlawful investigatory detention issues under Terry v. Ohio? An officer lacking probable cause but having a reasonable suspicion that a person is, was or is about to be involved in criminal conduct, may make an investigative stop to determine identity and purpose; and in connection therewith, may conduct a limited (outside pat) search for weapons or instruments of potential danger to the officer. The inquiry involves reasonableness of:
- purpose of stop
- physical intrusion on the liberty of the person
- duration of the detention
- Was the traffic stop improperly extended for a criminal investigation? State v. Myers, State v. Ladsen.
- Was the traffic stop pretextual? While difficult to prove, pre-text occurs if an officer really wants to stop a vehicle for some investigative reason and uses a traffic violation as an excuse. State v. Ladson, State v. De Santiago
- Was my client a passenger in a car? An officer must have an articuable suspicion predicated on safety considerations to order the passenger in or out of the vehicle, State v. Mendez. An officer may not request identification from an automobile passenger absent an independent basis for that request. State v. Rankin
- Was the stop based on registered vehicle owner data? Driver must at least minimally match the description of the registered owner (R.O) for an officer to reasonably continue a Terry stop. In State v. Penfield, the court found the stop was unlawful when an officer pulled a driver over who did not match the description of the R.O. and basis of the stop was that the registered owner's licensed was suspended. .
- Was the search lawful?
- If there was a warrant, was it validly issued and properly drafted? Warrant may only issue upon a showing of probable cause.
- Was there a valid or unlawful search incident to arrest? Arizona v. Gant, 129 S.Ct. 1710 (2009)(search of defendants car not "incident to arrest" on driving while license suspended allegation where defendant was handcuffed in police car.) State v. Valdez, 167 Wn. 2d, 761 (2009)(an arrestee is secured and removed from an automobile, the arrestee posses no risk of obtaining a weapon or concealing or destroying evidence of the crime of the arrest located in the automobile, and thus the aresstee's presence does not justify a warrantless search under the search incident to arrest exception.
- Was there a plain view search?
- Did officer have lawful authority to be there? State v. Kull
- Was discovery inadvertent? State v. McAlpin
- Did officer immediately recognize incriminating item? Minnesota v. Dickerson
- If no warrant, was there proper consent to search?
- If officer utilized the "knock and talk" procedure, was my client notified of the right to refuse? State v. Ferrier
- Was my client's consent coerced? State v. Bustamonte-Davila
- Was my client's arrest lawful?
- Lawful warrant?
- Does warrantless arrest comply with RCW 10.31.100?
- Were statements lawfully obtained? CrRLJ 3.5 Hearing
- Were my client's statements voluntarily made? Colorado v. Connelly, State v. Nogueira, State v. Stzer
- Are there Miranda issues? Miranda v. Arizona, State v. Terravona
- Were the Miranda rights recited?
- Was there a knowing, voluntarily, and intelligent waiver of those rights?
- Was my client's right to an attorney honored? State v. Templeton
- Was an attorney requested?
- Was an attorney provided?
- Was questioning resumed after the request for an attorney was made?
- Is there a Corpus Delecti issue? State v. Pietzak
- Was my client identified as a suspect at a show up identification? i.e. was he/she in custody and witnesses told that "they got the guy"? Was the witness shown my client in handcuffs or otherwise detained by law enforcement and asked "is this him or is this her?"
- Proper line-up? Foster v. California, Ideally: double blind demonstration, consecutive not concurrent viewing and individuals chosen not on their similarity to the suspect but on their consistency with witnesses description of suspect.
- Proper photo montage? State v. Boot Ideally: double blind demonstration, consecutive not concurrent viewing and photos of individuals chosen not on their similarity to the suspect but on their consistency with witnesses description of suspect.
- Unduly suggestive? Washington adopts the federal analysis. State v. Vickers