Quincy Hoang, x-Attorney » Law Article

Distinguishing Searches, Seizures and Miranda Rights

Quincy — Sat, 08 Sep 2007 14:47:59 +0000

This article briefly summarizes three very important areas of criminal law. Clients will often ask legal questions about the issues involved in (1) searches, (2) arrests, and (3) Miranda Rights (the right to remain silent). Clients often ask questions like(1) can a police officer search me for no reason, (2) do I have to consent to a search, and (3) does it matter that the police officers didn’t read me my rights?

Right to be free from unreasonable searches and seizures

Probable Cause to Search

The Fourth Amendment to the U.S. Constitution provides a right to be free from unreasonable searches and seizures (an arrest is considered a seizure.) Therefore as a general rule, law enforcement agents must have a warrant or probable cause to search or arrest a person.

However, there are many exceptions that allow police officers to search a person without probable cause. These include: (1) being on probation or parole, (2) limited pat-down search to ensure police officer safety, (3) and consensual searches.

Consenting to a Search

There is no law which requires a person to consent to a search. However, you should be aware that you may have already consented to a search or that you may need to trade consent. One such exception includes being on probation or parole – which subjects such a person to being searched at any time and place. Another exception is being in certain places. For example, entrance into an airport or jail facility provides consent to search by law enforcement agents. You can always refuse to be searched in these circumstances, however, you will be denied the opportunity to be free from incarceration and denied entrance into the airport or jail facility, respectively.

Contrary to popular belief, refusing to consent to a search is not probable cause to search. This is an area where many people, in an attempt to be law-abiding citizens, waive their rights to privacy. You should politely inquire why the police officer wishes to search for, so that you can evaluate whether his or her request is reasonable by using common sense. If the officer’s request does not seem reasonable, politely decline that request.

Miranda Protects Only Statements

There is a lot of confusion surrounding the meaning of Miranda and the 5th Amendment right to remain silent. Miranda basically states that a person has a right to remain silent, and once arrested, the police must inform you of that right against self-incrimination and they must not elicit any incriminating statements from you. It should be noted that if a police officer fails to give this warning, only statements made by an accused after an arrest will be excluded from use as evidence. Physical evidence is not a statement and not within the scope of Miranda.

However, law enforcement agents will commonly ask questions and elicit incriminating statements from a person prior to actually arresting that person. Thus, Miranda protections are inapplicable. So when faced with questioning by police officers, you should ascertain whether or not you are under arrest. If you are, obviously do not make any statements. If you are not under arrest, politely inform the police officer that you are in a hurry and must leave.

September 8, 2007 by Quincy Hoang.

Disclaimer

The information contained in this web site is provided as a service to the Internet community, and does not constitute legal advice. Attorney Quincy Hoang tries to provide quality information, but makes no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked to this web site. Since legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent counsel.

Attorney Quincy Hoang is not seeking to represent anyone based solely on a visit to this web site, therefore no attorney-client relationship is created by such a visit. If you do wish to retain legal representation for a specific matter, an agreement in writing must be executed.

Getting Pulled Over

Quincy — Sat, 11 Feb 2006 14:29:57 +0000

The following article addresses some of the questions common to a traffic stop and provides suggestions for maintaining your rights to privacy. It is important to understand your rights thereby making informed decisions when being pulled over. For example, you have the right to say no when a police officer asks to search your vehicle, although that might not be your best course of action. After all, getting pulled over should be just that, nothing more and nothing less.

What rights are involved?

The Fourth Amendment to the U.S. Constitution places limits on the power of the police to make arrests, the power to search people and their property, and the power to seize objects and contraband (such as illegal drugs or weapons). These limits are the bedrock of search and seizure law. This article covers the basic issues that you should know, beginning with an overview of the Fourth Amendment itself.

In the context of being pulled over, there are several societal interests that come into play. The more important interests are, first, the Fourth Amendment to the United States Constitution provides the right to be free from unreasonable searches and seizures. Second, society has an interest in enforcing the vehicle code and other state laws.

The Fourth Amendment: Protecting Your Privacy

The Fourth Amendment to the U.S. Constitution reads as follows:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants 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.” Fourth Amendment, U.S. Constitution.

The search and seizure provisions of the Fourth Amendment created an individual’s right to privacy. To effectuate this right, the Fourth Amendment protects against “unreasonable” searches and seizures by state or federal law enforcement authorities. The flip side is that the Fourth Amendment does permit searches and seizures that are considered reasonable.

In practice, this means that the police may override your privacy concerns and conduct a search of your home, barn, car, boat, office, personal or business documents, bank account records, trash barrel, or whatever, if the police have probable cause to believe they can find evidence that you committed a crime, and a judge issues a search warrant, or the particular circumstances justify the search without a warrant first being issued. In sum, police may search your vehicle if they have probable cause to do so.

THE PURPOSE OF A TRAFFIC STOP

It usually happens when you least expect it, but suddenly there are flashing red lights as well as a solid red light on the patrol vehicle following you. Obviously, when a marked patrol vehicle has its flashing red lights on, the officer in that vehicle is attempting to get your attention and is ordering you to pull over. You should pull over immediately when safe to do so. It is a good idea to extinguish that marijuana cigarette if yours is still lit.

Always drive with a valid license and registration, since any violation of the California Vehicle Code gives police officers the right to pull you over. It’s amazing how many people are pulled over and their vehicles searched because their registration tags are not current. You should always drive a vehicle that is properly registered and maintained so that the police have no reason to pull you over. Also, you should always obey the traffic laws. Even when you have not violated a law, a police officer may still pull you over if he has reasonable suspicion to do so. For example, you may match the description of a bank robber, or a police officer sees you smoking what obviously appears to be a “joint.”

DURATION AND SCOPE OF A TRAFFIC STOP

A traffic stop can be no longer than necessary to enforce the purpose of a traffic stop. In other words, police must diligently pursue their investigations in such a way that will confirm or dispel their suspicions quickly.

Therefore when a driver has produced a valid license, proof of insurance, and proof of entitlement to operate the vehicle (i.e. the driver states that the car is borrowed with verification that the car is not reported stolen), the officer may issue a warning or a citation, but then must usually allow the driver to proceed without further delay or questioning.

TIPS to avoid unnecessary delays

The following are things that you can do which will hopefully shorten any detention or traffic stop. Never get out of your car unless the police officer asks you to do so. Try to keep your hands where an officer can see them. Wait until you have asked and the police officer agrees for you to reach into the back seat for your wallet inside of your jacket, thus avoiding sudden movements. You get the idea. In essence, police officers must feel safe during a citizen encounter and will more likely believe your explanation if they are immediately at ease. For example when you say, “I didn’t see that stop sign” or “I didn’t know I had a taillight out.”

You may hate police officers when they’re issuing that fifth speeding ticket or when your vehicle from head to toe, but when you’re getting robbed or victimized in some other way, they are somehow now your best friend. So remember, police officers are people just doing their jobs, so show them a little courtesy. And hey maybe, just maybe they’ll let you off with a warning.

February 11,, 2006 by Quincy Hoang.

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Bill Dispute? Suing Not An Option

admin — Fri, 01 Apr 2005 14:49:24 +0000

Consumers Finding Arbitration Severely Limits Their Legal Options

[While] reading the fine print many consumers are surprised to learn they lost their right to sue when they signed contracts and must submit to binding arbitration instead, reports John Blackstone.

With hundreds of minutes included in her cellphone plan, Hoa Nguyen spoke freely. But, as CBS News Correspondent John Blackstone reports, at the end of her one-year contract her bill went through the roof.

She was “shocked,” she says, to learn her $39.99 month bill had soared to $476.

Nguyen and her son, Quincy Hoang, an attorney, figured AT&T Wireless had made a billing error.

But, as Hoang says, it wasn’t a mistake.

“We were basically told, ‘Well, we informed you in a little clause in the statement, the prior month or the month before that,’” says Hoang.

With collection agencies coming after her, Nguyen decided to sue. But she then discovered her contract said she couldn’t go to court and had to use binding arbitration.

“The courts are there to ensure fairness,” says Hoang. “With arbitration, you don’t get all the protections of the courts.”

In the past decade, the fine print in almost every contract a consumer faces has a clause requiring binding arbitration. Cingular, which has taken over AT&T Wireless, insists arbitration serves consumers.

“It’s fair, it’s fast, and oh, by the way, because arbitration would typically take weeks; litigation months or years,” says Mark Siegel of Cingular.

In arbitration each side presents its case to a neutral arbitrator whose decision cannot be appealed. Since arbitrations are confidential, it’s hard to tell how consumers fare.

“For competitive reasons and legal reasons we do not release the number of cases we handle or their disposition,” says Siegel.

Among the few statistics available are those obtained in a lawsuit against credit card giant First USA. Of more than 19,000 arbitrations for debt collection, consumers won just 87 cases.

A more recent, but small study for the American Bankers Association, found consumers prevailed more than half the time.

Arbitration clauses can help companies avoid class-action suits like the one Nguyen tried to file against the cell phone company.

“It’s just appalling, actually, that they can just change the terms and just say, ‘Hey, these are the new terms and you’re stuck with them,” says Hoang.

Nguyen is now filing for arbitration.

Disclaimer

This article was taken from CBS. Original copy may be found at .

Attorney Client Fee Agreements – Flat-Fees or Hourly Billing

Quincy — Tue, 13 May 2003 14:24:17 +0000

The following article addresses two types of fee arrangements for legal services in criminal law – the flat-fee and hourly billing. The central questions to be considered are whether one type is better than the other, when is it better, and why is it better.

FEE AGREEMENT BASICS

An attorney is required to have a fee agreement in place when an attorney-client relationship is formed, or soon thereafter. In criminal cases, there are generally two types of billing methods available to govern fee agreements – flat-fee and hourly billing. Contingency fee agreements are prohibited in all criminal cases; therefore, an attorney cannot be paid based on the outcome of a defendant’s criminal case.

FLAT-FEES

The flat-fee is a fee agreement which compensates an attorney for all legal services for a specific matter or a specific phase of a matter, regardless of the amount of time involved, for example $2,500.00 for all pretrial proceedings in a drunk driving case.

PROS AND CONS

The attractive characteristic of the flat-fee is that it’s fixed and does not change. Therefore, for a fixed sum, a client has complete representation for a specific pending legal matter. After all, one never knows when a case may drag out, having the case prolonged, while legal fees continue to mount.

However, most attorneys who use flat-fee agreements are well aware of how long a case will take and set their fees accordingly. So even if a case has taken a bit longer than expected, chances are that attorney has still made a small profit. But when a case ends quickly, that attorney has made a huge profit.

In sum, if you think that your case will drag on, it may be wise to enter into a flat-fee agreement. But remember, if you’re not an attorney, can you be confident that your case is going to lengthy?

HOURLY BILLING

Hourly billing fee agreements compensate an attorney for his or her legal services on an hourly basis, for example $200.00 per hour.

HOURLY IS BETTER IF YOU HAVE LEGAL EXPERTISE

In my opinion, the hourly billing fee agreement is better than the flat-fee arrangement because it is fairer in that you get what you pay for. However, this assumes that the client is well aware of the time commitment involved, and the level of legal expertise needed. Two rather big assumptions that are not likely to be met unless the client is himself or herself an attorney.

The problem with the hourly billing fee agreement is that there are a few attorneys out there, and you know who you are, that will charge their clients unscrupulously. They tack on extra hours knowing that the client could not and would not complain. Most individuals simply are not familiar with the average costs and fees of similarly situated cases.

WHICH ONE IS BETTER FOR ME

In conclusion, the best course of action is to find an honest attorney, someone who will charge you fairly for legal services regardless of whether the fee agreement is a flat-fee or by hourly billing. Do your homework and check out your prospective attorney. Get a referral from a close friend who has retained that attorney before or who will “vouch” for that attorney’s integrity.

May 13, 2003 by Quincy Hoang.

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D.U.I. Arrest Tips

Quincy — Mon, 21 Apr 2003 14:06:37 +0000

The following article addresses some of the questions common to D.U.I. arrests and suggests practical advice on how to handle police encounters. Depending on the circumstances under which you are stopped or detained by law enforcement, informed responses to police questioning may help minimize the impact of or even likelihood of an arrest and subsequent D.U.I. conviction.

THE USUAL SCENARIO

While driving home after having a few drinks, you are pulled over because you weren’t paying attention to your driving. Although you feel fine and thought you were driving fine, you are informed by Officer Johnny Law that you were weaving or driving in a serpentine manner. He starts asking very innocent questions like are you taking any medications, are you diabetic, etc. Then, the police officer requests or tells you to perform field sobriety tests. Although you think you perform satisfactorily, you are placed under arrest for driving under the influence.

DUI arrest field sobriety tests .. so why would the officer be checking the time when he's obviously asking the female driver to walk a straight line?

THE INVESTIGATIVE STOP

Any violation of the California Vehicle Code gives police officers the right to pull you over, including but not limited to, speeding, registration, or driving too slowly. Moreover, some driving behaviors, although not in violation of the vehicle code, provides law enforcement the “reasonable suspicion” required by law to make an investigative stop, such as, weaving within the lane or driving in an erratic manner (i.e. driving around in circles.)

Once that red light goes on informing you to pull over, you should immediately signal to the right and carefully pull over completely off the road when safe to do so. Remember these tips:

DO NOT BE CONFRONTATIONAL since that type of conduct will not be taken well by a police officer, unless you like hitting the officer’s fist with your face.
REQUEST THAT THE OFFICER WRITE DOWN the reasons for stopping you, perhaps on the ticket that he will issue you.
POLITELY EXPLAIN to the officer(s) why you were driving the way you were, provided that the reason wasn’t you were drunk.

DETENTIONS AND FIELD SOBRIETY TESTS

If the officer sees “objective signs of intoxication,” he may ask you to step out of the vehicle and perform field sobriety tests. Signs of intoxication are: bloodshot, watery eyes, unsteady gait, slurred speech, and the odor of alcohol. Here are the tips during your detention and field sobriety testing.

BE HONEST and tell him the truth about when and how much you had been drinking. Most people assume that it is better to have had your last drink “a couple of hours ago.” Actually, downing a shot just before driving may provide you with a Rising Blood Alcohol defense. Furthermore, it is always difficult to later explain why you lied to a police officer.
YOU ARE NOT REQUIRED TO PERFORM field sobriety tests, including the handheld breath testing device. Field sobriety tests are not designed for you to pass or fail. It is just a way for police officers to gather additional evidence on your intoxication level. It is rare that anyone passes the field sobriety tests and are allowed to leave. The reason for this is that the officer tells you to do certain coordination tests, but is actually looking for signs of intoxication that he doesn’t tell you about.
GENERALLY YOU WILL NOT BE PENALIZED if you politely decline to take the field sobriety tests. Although the officer may entice or scare you into taking them by stating that if he or she doesn’t see you do these tests, then he or she would have to arrest you based on what they have seen so far. If you have gotten this far in your encounter with the police, chances are the officer isn’t going to leave without an arrest being made.

ARREST AND IMPLIED CONSENT

The last phase of your D.U.I. encounter is the arrest. Once arrested, you must submit to a chemical test to determine your blood alcohol level or your license will be suspended for one year. Remember that if you are arrested and your license is taken away, you have only 10 days to request a hearing from the D.M.V. to contest the license suspension.

RETAINING COUNSEL

It is probably a good idea to retain the services of an experienced attorney who practices D.U.I. law on a regular basis. The law is complex and you need competent representation. A good attorney is one that will provide individual attention, thoroughly review and prepare your case, and promptly answer any questions that you may have. Remember these tips when trying to find an attorney.

EXPERIENCE IN THIS AREA OF LAW is essential to receiving good representation. Although a novice to this area of law may do a good job on your case, chances are an experienced attorney would do even better.
BE WARY of the attorney who doesn’t take the time to carefully listen to you when you recount the facts of your case, but states that he or she will aggressively fight for you. How can an attorney effectively represent you without first listening to you.
BE SURE TO ASK your potential attorney during your initial consultation whether or not you have a good case (one that will be dismissed without proceeding to trial). And make sure you get a direct answer. I know you may not like to hear this, but you may have a “loser” case. If so, why spend enormous amounts in legal fees if your case will end up with the same disposition? Even the best D.U.I. attorneys can only do so much for a “loser” case.
BRING A COPY OF THE POLICE REPORT with you, if possible, to the interview or write everything down that happened that night as soon as possible so that you can tell your potential attorney all of the facts necessary to ensure the best defense.

LAST AND MOST IMPORTANTLY, REMEMBER THAT WHOMEVER YOU DECIDE TO HIRE, THAT ATTORNEY WORKS FOR YOU. WOULD YOU EXPECT YOUR EMPLOYEE TO CALL YOU BACK PROMPTLY AND ANSWER ANY QUESTIONS THAT YOU MAY HAVE?

April 21, 2003 by Quincy Hoang (revised 8/16/2009)