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OfflineChemy
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Re: just arrested with felony possession *DELETED* [Re: demiu5]
    #8146623 - 03/14/08 04:33 PM (15 years, 10 months ago)

Post deleted by Chemy

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--------------------
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God bless you all and I hope you receive the help you need to turn away from your lives of sin.

Mushrooms and drugs make you gay, you can reverse this homosexual condition with rehab, get help! Stop being gay!


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Invisibledemiu5
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Re: just arrested with felony possession [Re: Chemy]
    #8146736 - 03/14/08 05:02 PM (15 years, 10 months ago)

Quote:

Chemy said:
Quote:

demius said:
why don't we just stick with escaping/avoiding the system?




So the system can become even stronger, without the enlightened to spark doubt in the sheeps minds.
Quote:

demius said:

let others fare for themselves. also, this country doesn't need another lawyer, even if it is one working for the right causes/reasons



That is exactly what this country needs, I would love to become an attorney and take as many pro bono cases (all personal use drug cases) and help as many as possible get a fair shake in the biased criminal justice system.
Unfortunatly I can not join the Florida BAR which means even if I did graduate the best I could do is paralegal which is BS.





the first quote was more of a personal comment regarding conversations derx and i have had since the summer.

and i'm sorry, but i don't feel the need to help others like you do. i'm responsible for myself and my actions only (until i have a family). again, i say let the other "sheep" fare for themselves and figure it out on their own


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Invisibleblissedout
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Re: just arrested with felony possession [Re: demiu5]
    #8147170 - 03/14/08 07:13 PM (15 years, 10 months ago)

I learned just about everything in my life thus far the hard way. At least I have learned alot in my experiences that have and will continue to help me to better function and maneuver through the rest of my days here on earth. I'm still a fool, obviously, but there's alot to be said for wisdom and experience.

I'm not sure where I'm going here, but I just felt the need to say that. :gonzo:


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Invisibledemiu5
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Re: just arrested with felony possession [Re: blissedout]
    #8147486 - 03/14/08 08:51 PM (15 years, 10 months ago)

you typically don't learn unless you fall flat on your face and then have to pick yourself up (speaking generally)


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channel your inner Larry David


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InvisiblePrisoner#1
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Re: just arrested with felony possession [Re: Chemy]
    #8152986 - 03/16/08 11:29 AM (15 years, 10 months ago)

Quote:

Chemy said:
in Florida an officer must arrest someone that has committed or is committing a felony




it's at the officers discretion, even with a murder charge, the evidence can be damning but in some instances the cops dont arrest


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Offlinewilshire
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Re: just arrested with felony possession [Re: derx]
    #8154668 - 03/16/08 07:26 PM (15 years, 10 months ago)

they can't hold you for 45 minutes on a traffic violation while they wait for a dog.

they need something to establish probable cause. if they didn't, it's not a hard case to fight. the precedent has already been established by the courts for this exact situation.

why do you think he was so sure he'd find drugs? i've been pulled over 7 or 8 times and the cops have never asked to search my car.


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OfflineSeussA
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Re: just arrested with felony possession [Re: wilshire]
    #8156196 - 03/17/08 05:25 AM (15 years, 10 months ago)

> i've been pulled over 7 or 8 times and the cops have never asked to search my car.

I've been pulled over one time (for a burned out license plate light) and they searched my car... though after the search when the cop asked where I worked, and realized what I did for a living and that I wasn't a college kid, his attitude quickly changed and off I went on my way. This was over a decade ago, but I doubt things have changed... had I been wearing a suit and tie rather than "lab clothes" (old clothes on their last thread), I doubt he would have searched.


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Invisiblejohnm214
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Re: just arrested with felony possession [Re: Seuss]
    #8157894 - 03/17/08 03:33 PM (15 years, 10 months ago)

]
Quote:

why do you think he was so sure he'd find drugs? i've been pulled over 7 or 8 times and the cops have never asked to search my car.





One of my bigger pet peaves w/ people and the police is projecting their experiences onto others' stories. I'm not saying you are doing that, you may just be curious, but I've had plenty others do that.

I have no convictions on my record except for a trespassing (50 fine related to a protest I was at many years ago I'll get expunged one of these days) yet I've been asked to be searched several times. every time I refuse, and every time I've had the drug dogs called. One of those times the dog allerted, falsely (I think the officer commanded him to or lied and said he did), and the car was searched.

Like it or not, cops associate young folks w/ drug users, and drug users can get their cars taken and auctioned for the police in many areas. Additionally, only about 5% of the population will refuse a search when asked by the cops, and many of these are probably guilty. I'm one of those quaint folks that has never had drugs in the car when I've been asked to consent (actually never had drugs in the car period). Every time the cops are convinced its cuz I'm holding... They couldn't imagine I just
1) Don't want people fucking around in my car
2) Don't like the police and especially don't want the m in my car.


Everyone claiming that this case is cut and dry needs to shut up untill they can find the precedent.

The case refered to so far dealt w/ detaining a person untill a drug dog came. Not a car.

I agree that in this case there was an effective seizure of the person as without the car he was not free to go, and it is unreasonable to expect someone to abandon their car, however; untill someone finds a case on point, that states there is no distinction between a seizure of the car or a seizure of the person, I don't think its wise to claim this is cut and dry.

Property and persons are different in the eyes of the law. Property can be held easier than the person. In this case I don't think it was permissible to hold either, but lets not say its so cut and dry when the only case raised neglected the treatment of the car, and focused on the treatment of the individual.


A better place to look would be for state case law that says whether or not their is such a distinction, or whether or not the officer may seize a car untill a dog comes..



The other problem, of course, is we don't know what the officer will say at the suppression hearing. Will he be honest and just say he though their were drugs involved cuz the guy refused the search and appeared of the age, dress, and demeanor of people he associated w/ drugs, or will he claim he smelled things, saw bloodshot eyes, furtive movements, et cet.


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Offlinewilshire
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Re: just arrested with felony possession [Re: johnm214]
    #8158179 - 03/17/08 04:56 PM (15 years, 10 months ago)

i've been pulled over 3 times since earning a felony drug record. i have never been searched, or asked to consent to a search, from a traffic stop.

there is a reason that cops tend to find drugs when they search for them. just trying to get a handle on what it is.

"Everyone claiming that this case is cut and dry needs to shut up untill they can find the precedent."

i didn't read the entire thread. i assumed someone would have posted it already. here it is:

" Here, the initial seizure of respondent when he was stopped on the highway was based on probable cause, and was concededly lawful. It is nevertheless clear that a seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution. United States v. Jacobsen, 466 U. S. 109, 124 (1984). A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission. In an earlier case involving a dog sniff that occurred during an unreasonably prolonged traffic stop, the Illinois Supreme Court held that use of the dog and the subsequent discovery of contraband were the product of an unconstitutional seizure. People v. Cox, 202 Ill. 2d 462, 782 N. E. 2d 275 (2002)."

- the supreme court of the united states (my emphasis)


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Invisibleblissedout
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Re: just arrested with felony possession [Re: wilshire]
    #8158553 - 03/17/08 06:24 PM (15 years, 10 months ago)

Excellent info, people! Thanks for your insights on this, as I am currently in abit of a ditch myself, so to speak.


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Invisiblejohnm214
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Re: just arrested with felony possession [Re: wilshire]
    #8158717 - 03/17/08 07:03 PM (15 years, 10 months ago)

The language you cite belies the conclusion that this case is cut and dry.

You cite Illinois v. CABALLES, however; this case didn't consider a situation analogous to the instant case. It considered the question
“Whether the Fourth Amendment requires reasonable, articulable suspicion to justify using a drug-detection dog to sniff a vehicle during a legitimate traffic stop.”

and answered in the negative. This doesn't implicate the instant case. The dicta you cite, moreover, doesn't address the issue. Its conceded that the seizure of a person for longer than is neccesary to affect the traffic stop is illegal absent articulable suspicion, however; it doesn't address the seizure of the vehicle.

This is the question.

Hopefully there is some authority beyond that presented so far, however; even if there isn't, hopefully the court won't distinguish between the person and the car, as its hard to imagine a person being free to go, and their car not.


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Invisiblefastfred
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Re: just arrested with felony possession [Re: johnm214]
    #8158855 - 03/17/08 07:31 PM (15 years, 10 months ago)

What grounds would justify seizing a person's property if you don't even have cause to detain the person?

I would argue that seizing a someone's personal property is above and beyond simply detaining the person.

You can't "detain" a car or other inanimate objects. If a person is free to leave then they are free to take their personal property with them. To deny this is a seizure of property, which in most cases requires a greater justification than simply detaining a person for a short while. Further, seizure of property requires more proof of probable cause than even a search, it usually requires actual evidence of a crime rather than simple probable cause. Probable cause gives police the ability to detain people and search their effects, usually not the ability to seize property right off the bat. Even though search and seizure is melded together in the constitution I think it's usually understood that seizure is a greater burden than just a search (which they didn't even have cause for in the first place).

Quote:

The Fourth Amendment to the United States Constitution ensures citizens' right to "be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures …" The amendment goes on to set forth the conditions under which a warrant may be issued: "no warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."




I wouldn't say the case is "cut and dried", but it seems pretty clear to me that they seized his property (e.g. removed it from his possession or control) without a warrant or probable cause.

It's actually good that they told him he was free to go, but seized his vehicle. This demonstrates that they had no probable cause to detain him or search the vehicle. Without this they certainly had no cause to seize his property.

I'd say it should be even easier to win than if they had detained him and his car for the drug dog to arrive since you should be able to dispense with most of the "how long is reasonable for a traffic stop" bullshit.

Derx, I'd settle for nothing less than complete dismissal of all charges. Even if you were to lose it would be worth appealing.


-FF


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Invisiblejohnm214
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Re: just arrested with felony possession [Re: smily]
    #8158945 - 03/17/08 07:51 PM (15 years, 10 months ago)
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Allright Derx... I think I may have found something for you almost exactly on point. This was in Tenn. right?

If so, this is the federal appeals court for that jurisdiction, and they considered the US constitution and came to a conclusion you'll like. This should be binding upon your court, although its a federal case, it reached its decision on the fourth amendment to the us const., which is binding upon your court. The case is:

USA v. KEITH PRESLEY (03-1451); 430 F.3d 345; 6th Cir. 2005

Couple points...


Same thing, officers pulled a guy over. Then some cops relayed information to the officer who made the stop that the individual was reasonably suspected of having tons of coke. So the officers did have reasonable suspicion (we're assuming they didn't with you).


"There is also no evidence in the record that the additional approximately thirty-minute delay of Davis and his vehicle while the first drug-sniffing dog was located and procured was unreasonable in light of the officers' reasonable suspicions."


I believe that it took about 45min for the dog to get to you right? Well unless the cop lies, it sounds like this caveat won't hurt you, as this guy in the case had a slew of cops on his tail that informed the officer pulling him over of his liklihood of having coke.


Second, the actual reason this case was found to be unreasonable isn't related to you that closely, as the first dog didn't alert, and the second one took an hour or so. The point that this case establishes is that their is no difference between seizing the car or the person and the car. This is good news, though I'd hope even without this case that would be obvious.

Quote:

The trooper informed Davis that his Range Rover could not be moved, as the police were waiting for a drug-sniffing dog to be brought to the scene. The trooper offered, however, to give Davis a ride to the next service station on the highway. Davis declined the trooper's offer.






Here's the part of the opinion where they discuss the seizure of the car as seperate from the seizure of the person. In this case, like yours, the suspect was free to go, but that did not cure any defect in the search, and the court holds that their is no difference between the person and the property.


This part of the opinion picks up after the first dog failed to alert, but its analogous to your case. In this case the officer had DEA and state police on the scene giving reasonable suspicion that their was cocaine in the car- not so w/ you. So this is pretty much the analysis applicable to you in the begining, absence of reasonable articulable suspicion, and a detention of a vehicle while the person is free to go. (note, this doesn't hold if the officer lies to the court and is able to convince the court that their was articulable suspicion that you held drugs... then they could hold you till the dog comes. Hopefully you weren't making furitive movements or otherwise appearing quite nervous, and the officer doesn't lie, and this won't be an issue):

Quote:

Given that the police had no reason to continue to suspect that Davis possessed narcotics, delaying Davis's vehicle an additional hour in order to permit a second examination of the vehicle by another drug-sniffing dog was unreasonable. The use of the second dog and the continued detention of Davis's vehicle served no investigatory purpose. See Sharpe, 470 U.S. at 685 (emphasizing "the need to consider the law enforcement purposes to be served by the stop as well as the time reasonably needed to effectuate those purposes"). The police already had confirmation from Rocky that no narcotics were in the vehicle. Thus, to delay Davis another hour in order to permit a second search of the vehicle simply delayed the release of Davis and his vehicle without any investigatory purpose. Such a delay is specifically prohibited by the Fourth Amendment. See Heath, 259 F.3d at 530 [**27] (indicating that once officers use "all appropriate means available to them to allay their concerns of criminal activity" they may not detain a suspect absent probable cause); United States v. Butler, 223 F.3d 368, 375 (6th Cir. 2000). We therefore must conclude that this additional delay was unreasonable and violated Davis's Fourth Amendment rights.

We have repeatedly held that HN8Go to this Headnote in the case.a detention of property based upon reasonable suspicion may continue only for so long as it takes the officer to prove or disprove those suspicions.






So I guess the question was, sorry if you said this before.....


Did you make sudden movements when pulled over? Where you sweating profusely, acting nervous, et cet. Did you lie to the cop about where you were going or anything else? Did you smell like marijuana, alcohol, or strongly of cologne? All these things could be give rise to cause to detain you. If not, and the cop doesn't lie, and there's nothing else, seems to me you might have a good case.


Again, I hope I'm not getting your hopes up to much... I'm not a lawyer and have no training, so definitly talk to your lawyer about this. I'm just trying to help man. Good luck



For those interested, background of the case:







Here's the facts of the case:

Quote:

Cook County investigators notified Indiana State Troopers of their suspicion that the Range Rover was carrying contraband, and shortly after Davis crossed into Indiana at approximately 6:45 p.m., an Indiana State Trooper stopped Davis for speeding. Soon after Davis was stopped, the Cook County investigators who had been following Davis arrived on the scene. The investigators informed the trooper that they believed Davis was carrying narcotics in his vehicle. The Indiana trooper approached the Range Rover and asked Davis for his driver's license and car registration, which Davis gave to the trooper. [**6] The trooper then issued Davis a warning for speeding and asked whether Davis would consent to a search of his vehicle. [*350] Davis refused and asked whether he was free to leave. The trooper informed Davis that his Range Rover could not be moved, as the police were waiting for a drug-sniffing dog to be brought to the scene. The trooper offered, however, to give Davis a ride to the next service station on the highway. Davis declined the trooper's offer. Davis remained in the Range Rover throughout the stop and made several telephone calls on his cellular phone during the stop.

At approximately 7:00 p.m., Lake Station, Indiana, Canine Supervisor Tim Craigin ("Officer Craigin") was notified that a drug-sniffing dog was needed at the location. Officer Craigin arrived on the scene with his dog Rocky at approximately 7:15 p.m. Upon his arrival, Officer Craigin spoke with the officers on the scene and then walked Rocky around Davis's Range Rover. While Rocky showed some interest in the rear hatch area of the vehicle, Rocky did not alert positively to the presence of narcotics in the vehicle. Officer Craigin then placed Rocky back into his vehicle at approximately 7:30 p.m. and advised investigating [**7] police of the results of the search.

At approximately 7:20 p.m., DEA Special Agent Vince Balbo ("Agent Balbo") arrived on the scene and took charge of the investigation. From the record it is unclear whether Agent Balbo was aware of the fact that a drug-sniffing dog had already been used to search Davis's vehicle. Nonetheless, Agent Balbo contacted a neighboring county, Lake County, Indiana, to request that a drug-sniffing dog be sent to the scene. Lake County Deputy Murchek arrived on the scene at approximately 8:20 p.m. with his dog Sabor. Deputy Murchek took Sabor around the vehicle, and the dog alerted to the rear hatch area of the Range Rover. Indiana state police then obtained a search warrant for the Range Rover based on the surveillance observations and Sabor's alert.




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Invisiblejohnm214
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Re: just arrested with felony possession [Re: johnm214]
    #8158965 - 03/17/08 07:59 PM (15 years, 10 months ago)

Quote:


It's actually good that they told him he was free to go, but seized his vehicle. This demonstrates that they had no probable cause to detain him or search the vehicle. Without this they certainly had no cause to seize his property.

I'd say it should be even easier to win than if they had detained him and his car for the drug dog to arrive since you should be able to dispense with most of the "how long is reasonable for a traffic stop" bullshit.




yeah, I was thinking the same thing


Anyways, the attached case above shows that their is identical treatment to the person and their effects for fourth amendment consideration


It hinges on the reasonable suspicion. An officer can detain without consent a person or his effects only as long as it takes to confirm or dispell the suspicion. If the resonable suspicion doesn't exist in the first place (like in this case) there is no cause to detain the person past the initial stop.


But that's the catch, like we all recognize. What will the cop say?


Hopefully he'll be convinced that letting him go, while detaining the car, will be enough to circumvent the law, and he won't feel the need to, or be pressured to, lie and create suspicion.

Unfortunatly, it would be difficult to get this evidence supressed if the cop lies like hell... But w/ vidoe cameras and maybe a microphone, there's only so much stuff he can say. Hopefully he doesn't claim he smelled pot.


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Invisiblefastfred
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Re: just arrested with felony possession [Re: johnm214]
    #8159211 - 03/17/08 08:51 PM (15 years, 10 months ago)

He's already filed his report, so he's more or less bound by what he said back when the dildo thought he had a slam-dunk case.

Then again, lot's of cops lie right off the bat and make up bullshit in order to make you sound bad or support their case.

Many judges are pretty cool and hold cops to a pretty high standard. I've seen more than one case thrown out when a cop seemed foolish on the stand and couldn't articulate his reasoning. There's one wacky judge in my locale that will actually grill cops on the stand if their answers aren't direct statements of fact.


-FF


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Invisiblederx
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Re: just arrested with felony possession [Re: fastfred]
    #8159672 - 03/17/08 10:23 PM (15 years, 10 months ago)

god damn, I never expected to receive so many responses. Thank you Fred and John for the information provided.

What worries me is that my girlfriend and I just smoked a couple bowls about 1-2 hours before being pulled over. We certainly did not smell like marijuana but it's possible that our eyes may have been bloodshot.

After being arrested, the officer was pretty cool with me. He said that MJ isn't his primary concern, DUI is. But it's still a felony so he has to take me in. While in the car, he even admitted to me that he smoked back when he was younger, before joining the marines.

The situation irks me to this day, I usually find myself replaying the situation over in my head every night before bed.


On another note: I still do not have a lawyer. I've never had to have a lawyer before and I don't really know much about obtaining a good lawyer. I found 6 different lawyers on NORML's website that are near nashville. One of these lawyers I spoke with directly and he told me it sounds like I have a good case and that he would represent me in the scheduled court day and my seizure hearing for $2500. If the case has to go further, it will cost more. I did not ask how much. My problem with him is that he doesn't usually deal with cases in the county I was in, so he probablly doesn't have a relationship with the judge already. However, he does deal with drug charges, especially from bonnaroo (manchester).

My question is, what information should I find out from these lawyers? What should I ask them and how do I choose a good lawyer that can certainly win the case. Should I look for a lawyer who is established in the county court where my case is? or does this not matter as much?


--------------------
better living through chemistry

OVERGROW the government!!

it's not a war on drugs, it's a war on personal freedom, ok, thats what it is.


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OfflineChemy
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Re: just arrested with felony possession *DELETED* [Re: derx]
    #8159700 - 03/17/08 10:29 PM (15 years, 10 months ago)

Post deleted by Chemy

Reason for deletion: Reason for deleting?



--------------------
Alcoholics Anonymous

Narcotics Anonymous

Get help, help is free and available 24/7/365.

God bless you all and I hope you receive the help you need to turn away from your lives of sin.

Mushrooms and drugs make you gay, you can reverse this homosexual condition with rehab, get help! Stop being gay!


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Invisiblederx
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Re: just arrested with felony possession [Re: Chemy]
    #8159799 - 03/17/08 10:50 PM (15 years, 10 months ago)

Is there anything I can do to get my phone back soon? There was no reason to seize my phone. The phone wasn't even taken from me until I was at the cop shop just chilling and he asked to see my phone. I pulled it out of my pocket and handed it to him and then he kept it.

The phone is property of my mother as is the car. The phone is under an active contract with verizon, so I'm paying for something I cannot even use, unless I buy a new phone.


--------------------
better living through chemistry

OVERGROW the government!!

it's not a war on drugs, it's a war on personal freedom, ok, thats what it is.


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Invisiblefastfred
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Re: just arrested with felony possession [Re: derx]
    #8160717 - 03/18/08 04:45 AM (15 years, 10 months ago)

> Is there anything I can do to get my phone back soon?

Quote:

(g) Motion to Return Property.

A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.




So you need to go and file the motion if the cops won't give it back to you. They have no cause to keep the phone so I'd be a bit surprised if they didn't return it.

They violated some rules by not inventorying it and filing a copy. They also should have had another officer present during the seizure inventory.

It will cost you a filing fee to file the motion most likely. Motions are usually heard fairly quickly, so it probably won't be terribly difficult.

As far as your question about finding a lawyer... I suggest that you round up all your paperwork (file for the police report at the copshop and go to the courthouse to get affidavits) then go around and consult with each of the local lawyers about your case. You don't need to go local but it might cost less and they know how the judge will rule on most arguments.

Your consultation should be free. The lawyer should read your report and paperwork and tell you what they think. Then you can detail your story briefly. Ask them how much experience they have in the area and how much they will charge you. A good tip to follow is to tell them that you wanted to consult at least one other lawyer just to get two perspectives on your case and ask them if they could recommend a good lawyer who has experience with your type of case.

If you do things right you can come out with several hours of free legal advice from multiple lawyers and also find out who the real superstar is in town. It's always interesting to see who all the lawyers recommend.

But you must get all your paperwork, and that can take a few days. If you don't find a lawyer ask the judge at pretrial for a continuance, with your reason being that you are still attempting to find representation. 99% of the time you will get it no problem.

I would also probably request all the video and audio. It will cost you a bit, but otherwise you'll be paying your lawyer to do it for you later during discovery. It's also really good to have everything available when shopping for a lawyer.

When lawyer shopping call ahead for an appointment and drop off or mail your paperwork to them ahead of time, that way you get your best consultation advice.

Also any lawyer you're thinking of going with, it doesn't hurt to ask another lawyer about them. Just say so and so recommended this guy is he any good? If you're lucky your first lawyer will run down every other lawyer in town and you'll figure out who's best.

That's my advice for finding the best lawyer. Luckily last time I needed one I already knew who was the best in town. A lawyer who's mere name drop gets you respect.

Last tip... don't tell the lawyers that you've been getting all your legal advice so far from a mushroom board.


-FF


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OfflineChemy
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Re: just arrested with felony possession *DELETED* [Re: fastfred]
    #8160738 - 03/18/08 05:08 AM (15 years, 10 months ago)

Post deleted by Chemy

Reason for deletion: Reason for deleting?



--------------------
Alcoholics Anonymous

Narcotics Anonymous

Get help, help is free and available 24/7/365.

God bless you all and I hope you receive the help you need to turn away from your lives of sin.

Mushrooms and drugs make you gay, you can reverse this homosexual condition with rehab, get help! Stop being gay!


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