The reason we want to fight it is for several reasons
1. The police officer violated our right to the 4th amendment. We did not consent to a search in the vehicle and practically forced us out of our vehicle in order to find old open alcohol bottles.
2. His "evidence" was the smell of alcohol which made him feel he had the right to search the vehicle
3. He discriminated us and used racial slurs to make his claim sound more backed by "evidence"
4. We did not get a breathalyzer used on us yet he claimed we were drinking
5. I read online and spoke to some sheriffs and they told me that since the officer violated our 4th amendment the court has to "overlook" the evidence he found and not charge us since our rights were taken away without our consent. What can we do in this situation?
Can you fight this? Yes, you can fight anything. The more important question is will you win? This depends upon what the police report says and what the officer testifies to in court. I think you may be reading the Fourth Amendment, as applied to the States through the Tenth Amendment, a bit too broadly. Were the open alcohol containers in plain view? Was there an inventory search? How were racial slurs discriminatory? Discriminatory as to what? Or are you just saying he was not nice? Or he was disrespectful? You did not get a breathalyzer test - are you being charged with DUI? You may want to hire an attorney to help you.
Yes, you can fight this. If a judge determines that the officer searched your car illegally, then that judge will likely "suppress" the evidence. Meaning that evidence can't be used against you in your case.
Generally, even if a judge suppresses evidence, that doesn't mean the charges against you are automatically dismissed. However, in this circumstance if the evidence was suppressed, your case would likely be dismissed because the evidence gathered from the "search" was the sole reason for the open container charge.
Also, a conviction of this violation will likely result in points on your California DMV record. I recommend speaking with a lawyer, so he or she can properly advise you. Good luck.
Yes. The officer will testify so prepare to your fourth amendment suppression motion or have a lawyer do it. Everything including whether the smell was strong and old open containers are issues of fact for the judge to decide. No breathalyzers are required. Your not being charged with a DUI. You really need a free consultation with an attorney. Good luck to you. I hope this helps?
You will need an attorney. The answer to your question of "Can we fight this?" is Yes, of course you can fight it. But I believe Mr. Hill provided you with a better version of your question and that is "Will you win?"
In this situation there is a lot of unanswered questions in order to analyze if you have something to fight or not. Your statement regarding the 4th amendment could be accurate or it might not be. Mr. Hill explained it very well. If the open containers were in plain sight with or without everyone in the car they officer may not have needed consent to search the vehicle. Law Enforcement officers have a right to use their senses and smell is one of those senses. If there was a strong smell of alcohol that may have given him enough to search the vehicle without consent as well. I'm not saying it did, I am saying it may have been enough when taking everything else into consideration. How old were the people in the car? was anyone under 21 years of age? What was the reason for the traffic stop? Did the officer cite you for the reason he or she stopped the vehicle? How long were you stopped for? What were the racial slurs? What you read online about the evidence being overlooked is something called "the fruit of the poisonous tree." However, there are exceptions to it. Mr. Hill's question about an inventory search was directly aimed at one of the exceptions to that situation. You really need to contact an attorney and find out if you have something to fight. Good luck.
