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Am i correct to say that police violated a friend's 4th, 5th and 14th Amendment rights when they stopped and searched him?

Racine, WI |

Police were in an area based on apparent burglaries. They noticed my friend who looks young with a backpack. Police believing he was truant stopped him while walking. He provided identification which showed he was 19 yrs. of age. While running his name one officer claimed he was acting nervous with his head down twitching his fingers. The officer asked if he had anything on his person, my friend responded "why do you ask" Based on this, the Officer searched him and found two handguns. He was charged with 2 cts. of poss. of firearm by a felon. I am familiar with a TERRY stop but i believe there is a case right on point in this state: State v Kyles, 2004 WI. 15. Lawyer did file motion but i found this case.

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Attorney answers 3

Posted

A judge will decide if you are correct after considering the totality of the circumstances. It does not appear of the facts you provided that it is a slam dunk for your friend.

READ THIS BEFORE CALLING OR EMAILING ME: I am licensed to practice before the state and federal courts in Virginia. We have not established an attorney-client relationship unless we have a signed representation agreement and you have paid me. I am providing educational instruction only--not legal advice. You should speak with an attorney to whom you have provided all the facts, before you take steps that may impact your legal rights. I am not obligated to answer subsequent emails or phone calls unless you have hired me. I wish you the best of luck with your situation.

Posted

Your friend has a plausible basis for a motion to suppress based on illegal search, which might also include a claim of unlawful detention. This would be based on the 4th Amendment to the US Constitution, and probably a similar provision in the state constitution. If the evidence is suppressed, then he will not be convicted. I would argue that once he provided the ID, the officer had no further basis to detain him. I might also argue that the original stop was improper. If the case for suppression is good enough, it might lead to the prosecutor making a favorable plea bargain offer, which the defendant could accept or reject in his discretion. In that situation, the defendant might take the deal, to trade the right to complain about a possibly illegal search, a claim that might win or lose, in order to guarantee a low level of punishment. Other defendants might choose to go forward with asserting their rights against the illegal search. Good representation familiar with local conditions might make the difference between winning and losing, and spending money on an attorney for this will likely be a good investment.

Contact me at 248-399-6930 for a free consultation. You and I do not have an attorney-client relationship formed by our communications on this website. Advice given by me on this website is general advice based on partial information. You should not rely on any advice given without first hiring a lawyer in the area where the case is pending, and providing that lawyer with full information.

Rixon Charles Rafter III

Rixon Charles Rafter III

Posted

Great counsel!

Asker

Posted

thanks! need more lawyers like you!

Asker

Posted

the court somehow found that the search was reasonable

Posted

It is all too common for law enforcement to invent reasons to justify what may otherwise be an unconstitutional search in violation of the 4th Amendment. A motion to suppress based on the alleged illegal search is the proper action to have the tainted evidence excluded. But you may be amazed to hear the officer's testimony in an effort to establish some probable cause or other justfication for what may be an illegal search. Whether the motion to suppress is granted will be based on the facts, the law and the philosophy of the judge.

Please be advised that there is no attorney-client relationship between us. No attorney-client relationship exists between us until an engagement agreement has been fully executed by both of us. There may be statute of limitations issues and other factors that may impact your legal rights and remedies. The information provided is for educational purposes only and is otherwise not to be relied upon for any purpose.

Asker

Posted

i read the report from both officers. of course they are similar in manner but neither put in there report anything to justify the search!

Asker

Posted

....and the judge that will be hearing the case is a decent impartial decisionamker unlike the many others who bas their decisons based on personal feelings instead of the letter of the law

Asker

Posted

the court somehow found that the search was reasonable

Joel B. Sklar

Joel B. Sklar

Posted

I am not surprised. As I said before, police officers are well schooled at articulating a reason to justify the search and many judges, especially at the lower state court levels, are pro law enforcement. Good luck.

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