Los Angeles, CA asked in Civil Rights for California

Q: If i was stopped by an police officer and he went through my wallet after i told him not to but still continued

And found something in my wallet can the evidence be thrown out and my chrarges be dropped

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2 Lawyer Answers
Gary Kollin
Gary Kollin
Answered
  • Civil Rights Lawyer
  • Fort Lauderdale, FL

A: This is criminal defense and not civil rights.

There are many factors involved.

Based on your limited information a definitive answer can't be provided.

You will need to hire an attorney. You might as well retain one now

Donald Arthur Hilland
Donald Arthur Hilland
Answered
  • Civil Rights Lawyer
  • San Fernando, CA
  • Licensed in California

A: So I need information to answer you to any degree of certainty. You say you were stopped. Were you walking, driving, or what? Rules are different for different modes of travel. Was it daytime, nighttime, what? Were you the city, small town, driving on interstate? Need more information. For example, if you were walking down the sidewalk and the cop stopped you to ID you, you probably know, as most people do from watching Youtube, from Terry v. Ohio, 1967, found at law book 392 U.S. 1, that he cannot just stop and ID you without a reasonable, articulable suspicion that you have just committed a crime or are about to commit a crime. That's called a Terry Stop. He can pat you down for weapons, but certainly not go through your pockets or your wallet. And he has to be able to state the crime and a reasonable, articulable suspicion, meaning that he has evidence that would satisfy a judge. He cannot just say, for instance, if you are filming him that filming him is suspicious because you could be a terrorist. Photograph is not a crime, and there are a long line of cases and rulings and even stipulations from cases that would prevent that. So the question would be if you were walking, why did he stop you, what did he tell you the reason for the stop was, and how did he get your wallet? Second, is there any evidence to back up your side of the story, like dashcam or bodycam or gopro? If you were driving and he pulled you over, again the rules are different, but how would he get your wallet? Were you already arrested and he went through your wallet at that time? I need more information. If he had a lawful reason to pull you over, like expired tags or speeding, the officer will maintain that you are already being detained. he would have a right to pay you down for weapons if again he has a reasonable articulable suspicion that you may be armed, like you're a known gang member or he recognizes you as a parolee, for example. But again even under Terry we have not yet got to the contents of your wallet. California case Brendlin v. California, 2008, U.S. Supreme Court, dealt with a passenger in the car being searched and that he had a right to challenge that search just as the driver did. Patting you down under Terry is a long ways from going through your wallet, however, as it is supposed to be a frisk, not a search of your possessions. Under the 4th Amendment to the U.S. Constitution, and the 14th Amendment applied to the State of California, for the officer to seize you or your property he needs probable cause that a crime is committed or about to be committed, which is much stronger than a reasonable, articulable suspicion to pay you down. He has to have probable cause that will satisfy an independent magistrate, or judge, which is what you are driving at.

You can file a suppression of evidence motion if the evidence was seized illegally, and if the court agrees, the case is dismissed because the evidence is suppressed and there is no evidence of a crime so no crime. Called the fruit of the poisonous tree, first discussed about 100 years ago by Felix Frankfurter, one of the most intellectual and most quoted supreme court justices of all time, the idea being that the peace officer cannot violate your constitutional rights to convict you. In California it is called a 1538 motion per the California penal Code. I have great experience with these and I can tell you that the chances of prevailing are not good without a video or an officer who is honest and a fair judge, all of which are often lacking in the courtroom. However, such motions are routinely granted under certain facts. However, without knowing more of the specific, neither I nor any attorney can give you a legal opinion with any certainty. The 4th Amendment protects you from unlawful search and seizure. But If you were slready under arrest, and it is not a false arrest under color of law, then he has the right to search you under the exceptions.

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