Illegal search and seizure

[quincy]

Your public defender will look at your stop and the arrest and the evidence against you (and its admissibility).

Here is a link to the law:
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=17235

Good luck.

 

[not2cleverRed]

I believe you mean 3", not 3'. You'd need deep pockets for a 3 foot knife!

 

[Lon.ram513]

I believe you mean 3", not 3'. You'd need deep pockets for a 3 foot knife!

3 inches my bad

 

[Lon.ram513]

Your public defender will look at your stop and the arrest and the evidence against you (and its admissibility).

Here is a link to the law:
https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=17235

Good luck.

I already did all the research regarding about the knife laws etc.
I even called businesses and companies that sells the knife especially in California
regarding about the knife.
Thank you again!

 

[Lon.ram513]

The charge was California penal code 21510

 

[FlyingRon]

Every person who does any of the following with a switchblade knife having a blade two or more inches in length is guilty of a misdemeanor:
(a) Possesses the knife in the passenger’s or driver’s area of any motor vehicle in any public place or place open to the public.
(b) Carries the knife upon the person.
(c) Sells, offers for sale, exposes for sale, loans, transfers, or gives the knife to any other person.

If I recall, California considers any knife that propels itself open without having to push on the blade itself to get it past an "over center" point a switchblade.

 

[quincy]

Okay. So the officer believed you were carrying a switchblade. The charge could be dismissed if it is a pocketknife.

Here is a link to the law that FlyingRon quoted: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=21510

A three-inch blade, huh? Your attorney might need to concentrate on the legality of the stop and search.

Good luck.

 

[Whoops2u]

The OP has not described the knife other than it being a pocket knife and the length of the blade. At this point, it starts to feel as though there might actually be some legal issue over the knife's type or set up or the OP would have described more.

 

[quincy]

That is one reason why a defense to the charge might have to come from the original stop and search. Lon.ram did say his attorney looked at the knife and said it was legal to carry.

 

[CdwJava]

He said his public defender looked at the knife and said it was legal to carry.

That does not mean the PD was correct. I suspect the officer may have been more up on switchblades and relevant law than the public defender might be (how many blades does he see, after all). I've even had to correct a sitting DA on the issue. Hence the reason I was asking for him to post the make and model of the blade. Ultimately, if the DA pursues the matter, the only interpretation that will matter will be the court's.

Though, even if the officer was incorrect, the ensuing search might still be admissible. But, if he is only being charged with the knife, then it should be easily resolved. If the public defender can show the prosecuting attorney that the knife is NOT illegal to possess, then the charges should be dropped. If the DA pursues the case, then it should be clear that one of the two attorneys is in error.

 

[xylene]

The OP has not described the knife other than it being a pocket knife and the length of the blade. At this point, it starts to feel as though there might actually be some legal issue over the knife's type or set up or the OP would have described more.

The OP mentioned the knife is an assisted opener.
Many many common legal knifes are spring assisted, and are not switchblades or stilettos.

Despite being prefectly legal and not prohibited by law (no switch or button) many police love to charge these inappropriately.

 

[quincy]

A review of the initial stop and search will be important in determining if the knife (legal or illegal) can be admitted as evidence.

I suspect the public defender knows a little bit about knives.

And, as a note, the police got it wrong in the case I cited.

 

[CdwJava]

A review of the initial stop and search will be important in determining if the knife (legal or illegal) can be admitted as evidence.

Of course.

I suspect the public defender knows a little bit about knives.

Ah ... more than the officer and a DA? Not in my experience. Many people know a "little" about knives, enough to make them think that a knife possesses merely a spring assist an assist when it does not. Twice, I successfully investigated and prosecuted retailers who were selling switchblades as CA legal and they claimed to be "experts" on knives. It's not always that easy to determine, especially for people who do not deal with them every day.

While I have known officers to get it wrong, attorneys rarely ever deal with these cases, so tend to be a little less up on what is out there.

 

[quincy]

Possibly. Police officers have been known to get it wrong.

The story as told here makes it sound like a bad search and a bad arrest.

 

[CdwJava]

The contact is certainly questionable, though we do not know the context and the officer is under no legal obligation to provide it in the field. One would expect that it would be laid out in ay report provided, so I wonder what reason for the contact was indicated? If the contact is good, then I suspect the seizure of the knife will be as he told the officer he had a knife and there is ample case law that permis law enforcement to seize such items during a detention. Then the question becomes whether or not the knife fits the definition of a switchblade.

I suppose we'll know when we are told whether the DA files the charges or not.