consent?

[ncoke]

What is the name of your state? ca.
my friend was walking his bicycle across the street at night.an officer stopped him claiming he needed proper lighting.there was an unloaded rifle strapped to the underside of his bike.he was then asked if he had any rounds he said he did that they were in his coat on the handlebars ( is this consent?)the officer then then searched his coat finding things my friend should not have had.can the evidence be suppressed?

 

[CdwJava]

my friend was walking his bicycle across the street at night.an officer stopped him claiming he needed proper lighting.there was an unloaded rifle strapped to the underside of his bike.he was then asked if he had any rounds he said he did that they were in his coat on the handlebars ( is this consent?)the officer then then searched his coat finding things my friend should not have had.can the evidence be suppressed?

Well ... yeah. He said there were bullets in his jacket pockets and the officer was looking for the bullets. The fact your friend mixed the bullets with other "things" (let me guess, drugs?) is not the officer's fault.

Your friend can ask his attorney if they have a chance to suppress the evidence, but I doubt it. He's walking around with a gun at night - the cops can certainly check that out. The officer MAY not have had legal cause to search, but I suspect that's a long shot. And if the officer asked where the bullets were, that may have granted implied consent for him to look ... he certainly is not going to allow the suspect to search through an unsearched jacket for bullets!

It is the details that will determine the end result. But, I suspect your friend is in for an uphill battle here. And unless you were there, you have no idea what he really told the cops. They may have asked, "Mind if I look?" after he said the bullets were in the jacket on the bike.

Of course, issues like probation, parole, age, etc. can also increase the justification for the search.

- Carl

 

[ncoke]

"after looking at the rifle ***** told me that he had three live rounds for the rifle located inside a jacket on the bicycle.When I attempted to locate the rounds I found a loaded marijuanna pipe inside the pocket."
Quoted from the probable cause and bail setting affidavit

 

[CdwJava]

Okay ... so, while retrieving the bullets he found a pipe ...

In California possession of a marijuana pipe is not a crime unless it had a usable amount of marijuana in the bowl. What else did the officer find?

And he certainly cannot be arrested and booked for having marijuana in any event. Was he just cited?


- Carl

 

[ncoke]

well from there he found some pot
and from there he found some meth......I know hes probably screwed
well he is screwed......stupid...stupid....stupid
i suppose my question which I think you already answered was wether or not he gave consent to search by telling the officer he "had three live rounds in his jacket tied to the bike" either way I think hes screwed

 

[CdwJava]

well from there he found some pot
and from there he found some meth......I know hes probably screwed
well he is screwed......stupid...stupid....stupid
i suppose my question which I think you already answered was wether or not he gave consent to search by telling the officer he "had three live rounds in his jacket tied to the bike" either way I think hes screwed

Wow! This guy IS screwed!

WHY do people with drugs do such things that attract attention to themselves!? It never ceases to amaze me!

Once he said he had three rounds in his jacket, he pretty much opened the door for a search of the jacket. No officer worth his salt is going to let the jacket go unsearched for weapons, and since retrieving the bullets resulted in the reasonable discovery of the dope, I don't see that he has much of a leg to stand on. But! It IS possible.

- Carl

 

[ncoke]

yup stupid
the dope was actually found in a backpack searched after the pipe was found in the jacket but still i fear your right . thank you for the response

 

[ncoke]

i believe they are 11370.1 H&S

 

[CdwJava]

Be happy they don't charge him in federal court as a drug user in possesion of a firearm.

Ah ... okay ... they DID charge it:

11370.1. (a) Notwithstanding Section 11350 or 11377 or any other
provision of law, every person who unlawfully possesses any amount of
a substance containing cocaine base, a substance containing cocaine,
a substance containing heroin, a substance containing
methamphetamine, a crystalline substance containing phencyclidine, a
liquid substance containing phencyclidine, plant material containing
phencyclidine, or a hand-rolled cigarette treated with phencyclidine
while armed with a loaded, operable firearm is guilty of a felony
punishable by imprisonment in the state prison for two, three, or
four years.
As used in this subdivision, "armed with" means having available
for immediate offensive or defensive use.
(b) Any person who is convicted under this section shall be
ineligible for diversion or deferred entry of judgment under Chapter
2.5 (commencing with Section 1000) of Title 6 of Part 2 of the Penal
Code.

- Carl

 

[ncoke]

ouch! even when the rounds are seperate from the gun? It was a hunting rifle after all.Not that im trying to diminish the stupidity of the situation its just yowzzah the charges seemed like they quadrupled in severity once the D.A. got a hold of em. yes my "friend" is an idiot but the gun was not loaded (albeit he may have been) i dont know years in prison seem a little extreme for a non violent crime. but then again......

 

[CdwJava]

They will have to show that the weapon was loaded for THAT charge. The other charges do not require a loaded weapon.

- Carl

 

[Zigner]

i dont know years in prison seem a little extreme for a non violent crime. but then again......

You got that right. I mean - the cops should wait for a VIOLENT gun crime to happen before any action is taken!

 

[CdwJava]

Hey this is a state charge?

Yes it is.

This would be too small a case for the feds to even look at. Besides, most federal laws are mirrored at the state level anyway. And the local cops cannot just file something with the US Attorney and expect a prosecution. The feds rarely go after offenses that could be prosecuted locally without some compelling reasons. And given the seriousness and scope of this offense, unless this guy was a link to some drug kingpin, the feds wouldn't even read the cover sheet of a fax concerning it.


- Carl

 

[fairisfair]

http://www.usdoj.gov/usao/az/press_releases/2007/2007-176(Celaya).pdf

ILLEGAL DRUG USER SENTENCED FOR FIREARM POSSESSION
December 6, 2007

Contact: Chadwicke Groover

United States Attorney Matt M. Dummermuth announced today MICHAEL JONES, 32, from Omaha, Nebraska, and formerly from Cedar Rapids, was sentenced today in federal court in Cedar Rapids on one count of being an unlawful drug user in possession of firearms.

During his July 9th plea hearing, JONES admitted he was a longtime marijuana user and unlawfully possessed five firearms while living in Cedar Rapids during 2004. The firearms were discovered on December 22, 2004, during a search of JONES’ residence by probation officers.

JONES was sentenced to 3 years’ probation, and 3 months’ home detention with electronic monitoring. He was also ordered to pay a special assessment of $100.

The case was prosecuted by Special Assistant United States Attorney Chadwicke L. Groover and was investigated by the Bureau of Alcohol, Tobacco, Firearms, and Explosives and the 6th Judicial District Department of Correctional Services. This case was prosecuted as part of Project Safe Neighborhoods, a cooperative local, state, and federal program aimed at the enhanced prosecution of gun crimes.

There are several other examples if you do the google search
CdwJava just another example you don't know everything

He specifically informed you that state laws mirror federal. Just because the feds involved themselves in this one case, for whatever reason, is not indicative that they would involve themselves in the bicycle/hunter/meth head case. He never said that they could not, just that they would not.

 

[mommyof4]

You know Big Blue....

Carl has answered many questions on more than one board clearly, concisely, and (dare I say) correctly when given all relevant information. No matter the level of hostility, ignorance, arrogance, or plain, flat out stupidity expressed directly to him, he has never (that I have seen) once responded in a rude manner such as you have.


Now, having said that...

I'm still trying to get my mind around the picture of this wiggin' person walking his BICYCLE across the street with a rifle strapped on. I actually had to reread the post to make sure that it said bicycle and not just 'bike'.

I know it's not really funny, but oh geez...the mental image....IT IS!!!!!