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Can I be arrested & detained for smoking in a public place, and not providing an ID? In the state of California?

Newport Beach, CA |

My person & effects were then searched, revealing illegal substance, after I had informed the officer, I do not consent to any form of search of my person or effects. Is this an illegal search & seizure?

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Attorney answers 5

Best Answer
Posted

Smoking in public is an infraction. Had you given the officer your identification he could not have searched or detained you further than writing the citation. Since you refused he was given the right to detain you in irdervto effect the citation. Bad move bro.

Asker

Posted

I was in the middle of asking the officer, " I don't have to show an ID, if I'm not operating a vehicle, DO I?" The officer didn't let me finish my question.I informed him of this, and he said it was too late and I was being arrested.

Posted

Search pursuant to arrest is not an illegal search. Whether the arrest was valid will depend. You clearly need an attorney to represent you and they can look at whether there are any grounds to suppress that may help you. Hope that's helpful

Asker

Posted

Yes, your comment's were very helpful. Thank You Very Much.

Posted

Smoking in public is illegal in Newport Beach and other communities. The search and detention was proper. Your consent was not needed. You should have given your ID.

ANDREW ROBERTS CRIMINAL AND TRAFFIC TICKET DEFENSE ATTORNEY

Posted

The answers to all your questions are yes, however, the search is not an illegal search. Read Terry v. Ohio, a U.S. Supreme Court case, on the Fourth Amendment.

Posted

The rule is that warrantless searches are presumed unconstitutional unless the fall under one of the recognized exceptions. The government has the burden to prove that the exception applies. One of the recognized exceptions is a search incident to a lawful arrest. In CA, failure to carry photo identification and to produce to a police officer upon request is a crime and grounds for arrest. Thus, the officer made a lawful arrest in your case and by definition the search of your belongings was legal since it was incident to a lawful arrest.

Asker

Posted

I was in the process of producing my ID for the officer. At the same time I was putting the cigarette out, I was asking," I don't have to produce an ID if I'm not operating a vehicle" ☆DO. I☆? That last part " DO I "? I was just asking in conversation, reaching for my wallet, & he was all over me, & didn't let me finish my question. I informed him of this, & he said it was too late, & I'm going to jail.

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