Articles Posted in Policing Issues

The Fourth, Fifth, and Sixth Amendments to the United States Constitution provide fundamental rights to all citizens. For example, police officers cannot perform a search without probable cause. Nor can they interrogate someone on the subjective belief that they look suspicious. For the most part, police officers must be able to point to specific facts that give them probable cause to believe someone committed a crime before they subject that person to investigatory procedures.

Of course, there are exceptions to that general rule. One common exception is when a defendant engages in a consensual encounter with the police. Courts have held that consensual encounters do not require a police officer to develop probable cause.  A recent California appellate decision illustrates this concept.

According to the court’s opinion, police officers were on patrol when they saw the defendant walk out of an apartment, look in their direction, and then turn around. The officers also saw the defendant put something into his pocket. The officers approached the defendant, asking him “Hey, how are you doing? What’s your name? Do you got anything illegal on you?” The defendant admitted to having a meth pipe on him. When asked if he had anything else illegal on him, the defendant admitted to having a “bunch of meth” on him. Police searched the defendant, finding methamphetamine, a pipe, and 162 dollars in small bills.

Last month, a state appellate court issued a written opinion in a California drug-dealing case in which the defendant claimed that the testimony of the prosecution’s expert witness was impermissibly based on the defendant’s race and national origin. Ultimately, the court concluded that, regardless of the impropriety of the expert’s testimony, the defendant failed to preserve the issue for appeal because there was no objection made at the time the expert testified.

According to the court’s opinion, the defendant was arrested after an officer observed the defendant hand a middle-aged Cuban man an unknown object. Officers were able to see that the object the defendant handed the man contained off-white solids that resembled cocaine base.

The officers arrested the defendant, and after searching him, found a baggie with 41 small, individually wrapped “bindles” containing what was later determined to be crack cocaine. The defendant did not have any money on him when he was arrested.

Witness credibility is essential in any California criminal case. If a witness is found not to be credible, their testimony comes into question, which can create doubt in the minds of the jurors. Thus, in cases involving the testimony of a police officer, defendants can attack an officer’s credibility just like any other witness.

One way a defendant can attack the credibility of a police officer is by showing the jury that the officer has been engaged in past misconduct. Under California case law, when a defendant can show good cause, he “is entitled to discovery of relevant documents or information contained within the confidential personnel records of peace officers accused of misconduct against the defendant.” Before ordering that any evidence of misconduct be provided to the defense, the trial must review the material at issue to determine its potential relevance. This is called a Pitchess motion hearing, named after the case that first announced the rule. A recent case illustrates how a Pitchess motion should be conducted, and the consequences if the proper procedures are not followed.

The Facts of the Case

According to the court’s opinion, the defendant dropped a can of spray paint as police officers approached him. Evidently, when police asked, the defendant admitted to having recently tagged something. The officers located fresh graffiti nearby and arrested the defendant.

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