Probable Cause Archives - Ross Erlich Law

Short answer is yes.

If you think you’ve been falsely accused, or arrested, for a crime you didn’t commit, you are not alone. There are countless examples of people who have been arrested, and even charged, for things they haven’t done. Witnesses who are incorrect, victims who are lying or misleading, facts that don’t add up, etc.

One may think that the right course of action is to cooperate with law enforcement and that there is no need to hire a lawyer. Great, save some money! Well, probably not the best idea. Remember, the prosecutor cannot use your right to remain silent or your hiring of a lawyer against you.

In fact, if you are a suspect in a case, simply denying your involvement is not going to help much. Cops have heard that thousands of times. Law enforcement do not determine your fate in court, they do not file or dismiss criminal charges, they do not offer plea deals. Their job is to investigate and make an arrest, with the emphasis on the make an arrest part. It is easier for them to put together what they believe to be facts support your guilt, make an arrest, and pass it along to the prosecutor’s office. They “tend” to believe you are guilty, then look for facts to support that belief.

Let me give you a story about a former client that might help illustrate the purpose of this blog post. I represented a woman a few years ago who was charged with felony hit-and-run and felony assault with a deadly weapon causing great bodily injury for, allegedly, causing an accident with a speeding motorcyclist (estimated at 60mph) who broke his leg and then she left the scene. This happened in the San Fernando Valley near a large big box shopping store and alongside a major busy street. She came to me, while being represented by another attorney, after she had already had her preliminary hearing (evidentiary hearing determining probable cause in the case) and after a judge had determined there was enough probable cause that this crime was committed by her.

The police and prosecution’s take was that she had caused this accident and then was found parked alongside the business driveway of this big box store doing paperwork in her car. There was a witness who believed her saw her car, believed to have followed her through the parking lot (even though he lost sight of her), and then came across her car parked where she was. The police were wearing body cameras when they approached my client and you could see a few key things in that footage. A complete lack of any damage to her vehicle, her being cool, calm and collected, a car that was filled with lots of boxes of paperwork (which wasn’t strewed about after an accident) and windows that were not tinted. Oh, there was also some security camera footage from a taco truck that was across the street.

The prosecutor’s office believed that the eyewitness had, in fact, seen what he claimed to have seen, believed that the not-so-great security camera footage was my client’s car and, despite body camera footage and police report documentation that showed no major body damage, still believed my client was good for the crime.

Also keep in mind that my client was adamant about her innocence, often pointing out discrepancies in the reports, and looking for an attorney who could help her prove her innocence. She had also just spent months with a different lawyer going back and forth to court with them believing she did it and, ultimately, having a preliminary hearing where the prosecutor was able to convince the judge that she did as well. Not to mention, her defense attorney, who had access to the same evidence I did, couldn’t prove her innocence.

When I got on the case, I knew that my client was telling the truth. The security camera footage showed the car driving down then main street after the accident away from the business driveway where she was found, there was no damage anywhere on my client’s vehicle from an accident like this, the security camera footage seemed to show 2 persons in the vehicle that caused the accident and a 911 caller mentioned that they believed the car to be a Honda Civic, which was not what my client was driving.

So, what do you do now? The most stressful client a lawyer can have is an innocent one. There is a reason this is a commonly known phrase. You can see in this example how an innocent person could make it halfway down the road towards either a conviction or a forced plea deal to avoid the potential damage a conviction at trial could cause. How an innocent person could go to court multiple times without having their innocence proven. It’s a scary thing.

What I had to do was to clearly, and overwhelmingly, show the prosecutor the evidence that they may have overlooked which, when added up, equaled innocence. I had to put together a package that included timelines, clips of video, mentions to 911 call, lack of car damage, her statements to police. Had an investigator drive through the parking lot with me on video to show how it was almost impossible for this witness to maintain view of this car through the parking lot. Even after all of that, the prosecutor needed to take that all and present it to the supervisor to get permission to dismiss. This was a months-long, multiple appearance effort on my part, not something that just got remedied in one court appearance and a quick conversation.

Eventually, all charges were dismissed against my client.

As you can see, even if you are innocent, it is crucial to have a skilled Los Angeles criminal defense attorney represent you. Even in this example, police saw who they thought was “good for” the crime and put together the facts they could find to support it. No matter that my client proclaimed her innocence from the time she was contacted by police up until this very day.

If you or someone you know has been charged with, or is being investigated for, a crime here in Los Angeles or surrounding counties, contact attorney Ross Erlich today for a free consultation.

Short answer: Do nothing, unless they have a warrant.

The 4th Amendment prohibits unreasonable search and seizures by the government. Thus, police (or any law enforcement agency), must have a search or arrest warrant to enter your dwelling without your consent. There are a few exceptions that I will explain below, but they are only exceptions to the general rule.

If they knock on your door, ask you to open up, want to chat with you (the ole “knock and talk”), anything along those lines, without a warrant, are just ways to get you to incriminate yourself. You have no duty to talk to law enforcement and this includes allowing them to enter your home without your permission. You can simply say no, go away, have a nice day or just remain silent and ignore them.

Now, there are exceptions to this general rule. The major ones are warrants. If the police have a search or an arrest warrant, they may be able to enter your property without your consent. The scope of these warrants must be spelled out in the warrant itself, however, and that may be a limitation on law enforcement.

If the police have an arrest warrant, they can enter your property without your consent if they have a reasonable belief that the person they are seeking to arrest is located there. This might mean that they cannot enter a guest house, a garage, other locations where it would be unreasonable for them to believe the suspect is located, etc.

If the police have a search warrant, the warrant has to specify what law enforcement is able to search. If the warrant says they can search the garage, they can’t go into the house, and so forth. However, most search warrants can be very broad and oftentimes include all rooms and areas on a property, so I would expect that most of the property would be included if the cops show up to your house with a warrant.

Also, keep in mind that a search warrant is different than an arrest warrant in that, in many instances, law enforcement shows up to execute a search warrant and ends up not arresting anyone.

There are some key exceptions to law enforcement being required to have a search warrant to enter your property and will discuss these below.

1. Search Incident to Lawful Arrest

When a law enforcement officer makes a lawful arrest, the officer may search both the person arrested and the area within the person’s immediate control. This exception is made for “officer safety and the preservation of evidence.” The scope of the area “within the person’s immediate control” that an officer may search is always being litigated and is subject to constant fights among defense attorneys and prosecutors.

2. Items in Plain View

An officer may seize items that are in plain view as long as the officer has a legal right to be there. For example, if an officer stops a person for speeding and when issuing a ticket to the driver the officer sees, in plain view, drugs in the backseat of the car, the officer can seize the suspected drugs without a warrant. Or, for example, an officer knocks on a door, someone opens up and they see something illegal sitting on the table, they would be allowed to go in and seize that item and, possibly, make an arrest. Officers may even enhance their vision with the use of flashlights or binoculars, but they may not illegally enter premises and then claim the plain view exception.

3. Consent

If a person consents to a search and the officer reasonably believes that person has the authority to consent to the search, no warrant is needed. The person consenting must have or reasonably appear to have authority to consent. For example, a parent can consent to a search of her minor child’s room. However, a minor child cannot validly consent to the search of her parent’s house. In addition, the consent must be voluntary and not the product of threats or undue promises. Consent searches can apply to both individuals and property.

4. Stop-and-Frisk

If police have reasonable suspicion of a person committing, just committed or is about to commit, a crime, they may both stop a person to ask questions and conduct a brief pat-down search of the person to ensure officer safety. These Terry stops (named after the famous Supreme Court case) are sometimes a source of friction between the police and communities where stop-and-frisk is employed more aggressively.

5. Automobile Exception

In establishing the vehicle warrant exception the Supreme Court reasoned that the inherent mobility of automobiles would make it impractical for officers to always obtain a warrant prior to a search. The Court explained that people have a lesser expectation of privacy in their vehicles. Based on this reasoning, a warrantless search of a vehicle may be justified if an officer has probable cause to believe the vehicle contains contraband, controlled substances, or other forms illegal evidence.

6. Hot Pursuit and Exigent Circumstances

If the police are pursuing a suspect and the suspect enters private property, then the police can continue the pursuit and enter the private property without stopping to obtain a warrant. Exigent circumstances are circumstances that require immediate action. For example, the police can forgo obtaining a warrant in an emergency in order to render aid to a person who needs it, to ensure public safety, or to preserve evidence that is in immediate danger of being removed or destroyed.

In conclusion

The idea to write this blog came from a call that I got last night, around 9:17pm. Someone found me online and called me saying the cops were at his house, knocking on the door and asking him to open it. He said that they were investigating a burglary, or something along those lines, and had “questions” for him. I asked him if they had a warrant, he said no, and I told him that you have no obligation to open that door or communicate at all with them, and that he probably shouldn’t either. If they arrest you or break down your door, cooperate, be polite, don’t say anything and then call a lawyer.

You need to know your rights and you need to enforce your rights. It is crucial that you contact a skilled criminal defense attorney if you’ve been arrested or are being investigated for a crime and have that lawyer navigate that journey with you. Don’t try it on your own!

Category: Probable Cause

Do I Need a Criminal Defense Attorney if I am Innocent?

“Knock knock.” What should I do if law enforcement shows up at your door?