The probable cause statement and judicial determination in my criminal case states that the information for the summary was

Asked over 1 year ago - Milwaukee, WI

provided by a alledged victim. This victim does not exist. The name of this person and statements made by this person where completely fabricated by the arresting officers. My former lawyer refused to follow my direction and directly challenge the constitutionality of the initial stop, search, and seizure that led to the charge of felon in possesion of firearm. Does the reason for the initial stop matter? I have no more funds to retain new counsell. I am not concidered indigent for purposes of qualifying for a S.P.D appointment. I am forced to proceed to trial pro se. How can I address this 4th amendment issue?

Attorney answers (5)

  1. Michael C. Witt

    Pro

    Contributor Level 18

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    Answered . In addition to the suppression issue described above, you may have had a Franks-Mann issue, which is an argument that the complaint, which gives the court jurisdiction over your person, was defective, as once the false statements are removed it no longer supports a probable cause finding. As a jurisdictional issue, it may have been waived if your attorney failed to preserve it, but you may want to try and raise it along with your fourth amendment issue to preserve any ineffective assistance of counsel argument that it may give rise to. Good luck.

    This answer is provided for general information only. No legal advice can be given without a consult as to the... more
  2. Stephen Walter Sawyer

    Contributor Level 12

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    Answered . The Franks-Mann issue is somewhat questionable since this is a Felon In Possesion of a Firearm case and you talk about arresting officers conducting a "search, and seizure that led to the charge ...." Therefore, the charge itself (the basis for a finding of probable cause) is probably that officers found the firearm on your person or in some other way in your possession. It sounds as if you are primarily going to win or lose your case on a Motion to Suppress Evidence challenging the validity of the stop and the search. There are other potential facts which may change the scenario enough such that a Motion to Suppress would NOT be determinative. These particular facts should not be discussed on a website, but should be part of a confidential conversation with your attorney.

    When you state that your former lawyer refused to follow your direction and directly challenge the constitutionality of the initial stop, search, and seizure, I feel it necessary to explain one part of my initial conversation with each of my clients. There are certain things that only the client can decide. These things include whether or not we waive any rights, whether we have a preliminary hearing, whether we enter a not guilty or no contest plea, whether we take a case to trial. As the attorney, I will give my best legal advice on these issues, but the client must make the final decision.

    However, because I have a law license to practice in the State of Wisconsin and I am subject to certain punishments that could put that license in jeopardy, I get the final call on whether I file a particular motion or not, whether I call a particular witness to the stand in a trial or motion hearing, and whether I ask any witness a particular question or word that question in a particular way. I keep an open mind about these issues and will discuss them fully with my client ahead of time when at all possible (it isn't always possible when talking about specific questions posed to witnesses during a hearing), but I have the final call. I will not file a frivolous motion (one with no legitimate legal basis) or call a witness just for the purpose of harrassment or to confuse the issues in dispute. If a client does not want to give me the final call on those issues, I advise him/her to find another lawyer.

    When you say that "This victim does not exist", I question what is going on. There must be something more to this case than has been stated. Felon In Possession of a Firearm charges do not have a "victim" in the traditional sense of the word. Was there something that happened prior to the traffic stop that would explain using the word "victim"? Did someone call the police and give them a false name? Have the police made up the whole statement by an alleged victim to give their traffic stop and search some air of legitimacy? Maybe a Supplemental Discovery Demand requesting the name and address or other contact information of this alleged victim will be able to shed some light on the subject. If unable or unwilling to provide this information, the prosecutor can be required by the Court to serve this person with a subpoena to come to court and testify at a motion hearing and provide the basis for the traffic stop. You may also want to be aware of the Good Faith Exception to the Exclusionary Rule.

    I believe that you need an attorney to help you with these issues. If you haven't been recently evaluated by the State Public Defender's Office to see if you qualify to have them appoint someone to represent you, you should start there. Good luck.

    This communication is for the purposes of general advice only. This communication does not form any contractual... more
  3. Charles K. Kenyon Jr.

    Contributor Level 19

    5

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    Answered . Yes. If there is no basis for the stop that lead to the search that is a reason to suppress the results.

    Confidential information should not be disclosed in this Internet forum. Click on the "More..." link for... more
  4. James S. Lawrence

    Pro

    Contributor Level 15

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    Answered . Fourth amendment claims, that is, claims of unlawful search or seizure, are decided by the judge alone without a jury, before trial. You would file a motion, and request an evidentiary hearing. However, when stops are made on the basis of a tip from a source, that can become quite complicated. If the officer declares that there was a tip, I do not know how you would prove that did not happen.

    If the tipster is named that will be harder to win, but you have the edge of calling that person as a witness at the hearing. If the tipster was anonymous, then the police have to do some independent confirmation of what the tipster said before they can take action on it. If you are doing this yourself, you might want to look at cases like Illinois v. Gates, 462 US 213, 239 (1983); United States v. Ventresca, 380 US 102; 85 SCt 741; 13 LEd2d 684 (1965); United States v. Sokolow, 490 US 1, 7 (1989); Florida v. J.L., 529 U.S. 266, 270 (2000). If the search warrant affiant told lies or concealed important information, look at Franks v. Delaware, 438 US 154 (1978). The prosecutor has the burden of proof that the search was lawful. Coolidge v New Hampshire, 403 US 443 (1971). If you do not subscribe to a legal research service, many of these cases can probably be found at Google Scholar, or at a law library.

    If the motion to suppress is denied, you still have to go to trial (and not take a plea bargain) to preserve the issue of illegal search for appeal. In most cases, if you take a plea bargain, you waive your right to complain about illegal search.

    I recommend you try to hire an experienced criminal defense lawyer in your state even if you cannot afford it, by cutting other expenses. You can afford spending years in prison even less than you can afford paying a lawyer. Good luck.

    Contact me at 248-399-6930 for a free consultation. You and I do not have an attorney-client relationship formed... more
  5. Chad Russell Thomas

    Contributor Level 7

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    Answered . These kinds of issues are complex and you really need an attorney to navigate these waters.

    My fellow attorneys have noted potential suppression and Franks-Mann issues. I won't discuss those, but I will point out that even though the SPD says you don't qualify does not mean you have to appear pro se. You may be eligible for appointment of an attorney by the court. This is often called a "Dean appointment," after the case State v. Dean. The court can appoint an attorney and that attorney is paid by the county, but the defendant generally has to repay the county a certain amount per week or month. It's a little different in each county, and I don't know how it works in your county, but I would suggest contacting the Clerk of Circuit Court to get more information. The standard form is GF-152 on this page http://goo.gl/huUBb. The SPD office might be able to give you information as well.

    Best of luck.

    Disclaimer: This is legal information; not legal advice, so don't rely on it. I'm a lawyer, but I'm not YOUR... more

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