The Appellate Division of the California Superior Court in Orange County dismissed the ticket of a Fullerton woman because the city issued a ticket while having a an agreement containing a cost neutrality arrangement with the private company that operate the red light cameras. The Presiding Judge, Robert J. Moss, wrote, "The purpose of the statute is to avoid an incentive to the camera operator, as a neutral evaluator of evidence, to increase the number of citations issued and paid through the use of the equipment."

The following cities used similar cost neutrality clauses: Baldwin Park, Bell Gardens, Capitola, Cathedral City, Citrus Heights, Corona, Covina, Culver City, Daly City, Davis, Escondido, Gardena, Glendale, Grand Terrace, Highland, Laguna Woods, Lancaster, Loma Linda, Los Alamitos, MRCA, MTA/Metro, Marysville, Menlo Park, Millbrae, Modesto, Moreno Valley, Murrieta, Napa, Newark, Oroville, Rancho Cucamonga, Redding, Redwood City, Riverside, Rocklin, Roseville, San Bernardino, San Juan Capistrano, San Leandro, San Mateo, San Rafael, Santa Maria, City of South San Francisco, Union City, Ventura, Victorville, Walnut, Yucaipa and Yuba City.

The Supreme Court in Cinquegrani v. DMV ((2008 163 Cal.App.4th 741) held that the "DMV does not have the authority to suspend driver's licenses after a BUI (Boating Under the Influence) conviction. However, the DMV can still act on your drivers license if you get a BUI (or DUI). If you get a first time BUI, the DMV cannot suspend your license. However, if you get a first-time BUI and then, within ten years, get convicted of another BUI or another DUI, the DMV can, for the purposes of their administrative suspension, treat your second BUI or DUI as a second time offense and thus increase the suspension from the usual four months to one year. This, in essence, treats your BUI much like a "wet reckless" conviction in the courts. A "wet reckless" doesn't count as a DUI, but counts as a DUI if you ever get another one. Therefore, a single BUI will not effect your license but will increase penalties if you are convicted of a second BUI or a DUI.

Everything you need to know about bail: what it is, how it's set, and how to pay it.

A person's first thought upon landing in jail is often how to get out -- and fast. The usual way to do this is to "post bail".

Bail is cash or a cash equivalent that an arrested person gives to a court to ensure that he or she will appear in court when ordered to do so. If the defendant appears in court at the proper time, the court refunds the bail. But if the defendant doesn't show up, the court keeps the bail and issues a warrant for the defendant's arrest.

How Bail Is Set

Judges are responsible for setting bail. Because many people want to get out of jail immediately (instead of waiting up to five days to see a judge), most jails have standard bail schedules that specify bail amounts for common crimes. An arrested person can get out of jail quickly by paying the amount set forth in the bail schedule.

The Eighth Amendment to the U. S. Constitution requires that bail not be excessive. This means that bail should not be used to raise money for the government or to punish a person for being suspected of committing a crime. Remember: The purpose of bail is to allow the arrested person to remain free until convicted of a crime, and the amount of bail must be no more than is reasonably necessary to keep the suspect from fleeing before a case is over.

So much for theory. In fact, many judges set an impossibly high bail in particular types of cases (such as those involving drug sales or rape) to keep a suspect in jail until the trial is over. Although bail set for this purpose -- called preventative detention -- is thought by many to violate the Constitution, courts have uniformly rejected this argument (the issue has never been decided by the U.S. Supreme Court, the ultimate arbiter of what is and is not constitutional).

If a defendant can't afford the amount of bail on the bail schedule, he or she can ask a judge to lower it. Depending on the state, this request must be made either in a special bail setting hearing or when the defendant appears in court for the first time (usually called the arraignment).

Paying Bail

Bail can take any of the following forms:

• cash or check for the full amount of the bail
• property worth the full amount of the bail
• a bond (that is, a guaranteed payment of the full bail amount), or
• a waiver of payment on the condition that the defendant appear in court at the required time (commonly called "release on one's own recognizance").

A bail bond is like a check held in reserve: It represents the arrested person's promise that he or she will appear in court when required. The bail bond is purchased by payment of a nonrefundable premium (usually about 10% of the face amount of the bond).

A bail bond may sound like a good deal, but buying a bond may cost more in the long run. If the full amount of the bail is paid, it will be refunded (less a small administrative fee) when the case is over and all required appearances have been made. On the other hand, the 10% premium is nonrefundable. In addition, the bond seller may require "collateral". This means that the person who pays for the bail bond must also give the bond seller a financial interest in some of the person's valuable property. The bond seller can cash in on this interest if the suspect fails to appear in court.

Getting Out of Jail Free

Sometimes people are released "on their own recognizance," or "O.R." A defendant released O.R. must simply sign a promise to show up in court and is not required to post bail.

A defendant commonly requests release on his or her own recognizance at the first court appearance. If the judge denies the request, the defendant then asks for low bail.

In general, defendants who are released O.R. have strong ties to a community, making them unlikely to flee. Factors that may convince a judge to grant an O.R. release include the following:

• The defendant has family members (most likely parents, a spouse, or children) living in the community.
• The defendant has resided in the community for many years.
• The defendant has a job.
• The defendant has little or no past criminal record, or any previous criminal problems were minor and occurred many years earlier.
• The defendant has been charged with previous crimes and has always appeared as required.

For more information on bail, and everything else you need to know about criminal law, get The Criminal Law Handbook: Know Your Rights, Survive the System, by attorneys Paul Bergman and Sara J. Berman-Barrett (Nolo).

Reprinted with permission from the publisher, Nolo, Copyright 2008, http://www.nolo.com

QUESTION:

A cop pulled me over for running a red light, and then he searched me and my car. He didn't find anything, but I felt humiliated and violated by the whole thing. Was he allowed to do this? Could I have said no?

ANSWER:

A traffic stop is normally just that. If the officer issues you a citation and has no basis to suspect that you are armed and dangerous or involved in criminal activity, the officer cannot search you or your car. Of course, if the officer does see something suspicious, then the law allows the officer to do a "pat-down" search of you and of the passenger compartment of your car. The police officer can also "frisk" (feel the outside of) any purses, bags, or other things in the car that could hold a weapon. But, if you allow the officer to search you or your car, then the search will normally be considered valid -- even if there were no solid reasons behind the officer's request. Many people don't realize that they can refuse a search. But, as you no doubt know, it's not easy to say "no" to someone who is wearing a gun and scary reflective glasses.

Be aware, however, that laws in many states authorize police officers to arrest drivers for minor traffic offenses, such as speeding or failure to wear a seat belt. If a police officer does choose to arrest a driver, then the officer can conduct a search.

Learn more about Search, Seizure, and Interrogations.

Reprinted with permission from the publisher, Nolo, Copyright 2008, http://www.nolo.com

The basics of criminal law: presumption of innocence, felonies, misdemeanors, and jury trials.

What's the difference between a felony and a misdemeanor?

Most states break their crimes into two major groups: felonies and misdemeanors. Whether a crime falls into one category or the other depends on the potential punishment. If a law provides for imprisonment for longer than a year, it is usually considered a felony. If the potential punishment is for a year or less, then the crime is considered a misdemeanor.

In some states, certain crimes are known as "wobblers," which means that the prosecutor may charge the crime as either a misdemeanor or a felony.

Behaviors punishable only by fine are usually not considered crimes at all, but infractions -- for example, traffic tickets. But legislatures sometimes label a behavior punishable only by fine as a misdemeanor -- such as possession of less than an ounce of marijuana for personal use in California.

What is the "presumption of innocence"?

All people accused of a crime are legally presumed to be innocent until they are convicted, either in a trial or as a result of pleading guilty. This presumption means not only that the prosecutor must convince the jury of the defendant's guilt, but also that the defendant need not say or do anything in his own defense. If the prosecutor can't convince the jury that the defendant is guilty, the defendant goes free.

The presumption of innocence, coupled with the fact that the prosecutor must prove the defendant's guilt beyond a reasonable doubt, makes it difficult for the government to put innocent people behind bars.

How can I tell from reading a criminal statute whether I'm guilty of the crime it defines?

Criminal statutes define crimes in terms of required acts and a required state of mind, usually described as the actor's "intent." These requirements are known as the "elements" of the offense.

A prosecutor must convince a judge or jury that all of the elements of the crime have been satisfied -- meaning that the defendant did the acts and had the intent described in the statute.

For example, commercial burglary is commonly defined as entering a building belonging to another person, with the intent to commit petty or grand theft (that is, to steal), or any felony. To convict a person of this offense, the prosecutor would have to prove three elements:

• The defendant entered the structure.
• The structure belonged to another person.
• At the time the defendant entered the structure, he intended to commit petty or grand theft, or any felony.

Break the crime down into its required elements to see if each applies in your situation.

What standard is used in criminal trials to prove a defendant is guilty?

The prosecutor must convince the judge or jury hearing the case that the defendant is guilty "beyond a reasonable doubt." This standard is very hard to meet. (By contrast, in noncriminal cases, such as an accident or breach of contract, a plaintiff has to prove her case only by a preponderance of the evidence -- just over 50%.)

As a practical matter, the high burden of proof in criminal cases means that judges and jurors are supposed to resolve all doubts about the meaning of the evidence in favor of the defendant. With such a high standard imposed on the prosecutor, a defendant's most common defense is to argue that there is reasonable doubt -- that is, that the prosecutor hasn't done a sufficient job of proving that the defendant is guilty.

If I'm accused of a crime, am I guaranteed a trial by a jury?

The U.S. Constitution gives a person accused of a crime the right to be tried by a jury. However, this right does not extend to petty offenses -- defined as offenses that do not carry a sentence of more than six months.

Usually, a right to a trial by jury means a 12-person jury must arrive at a unanimous decision to convict or acquit. However, a jury can consist of as few as six persons. (Williams v. Florida, U.S. Sup. Ct, 1970.)

The size of juries tends to vary depending on the seriousness of the charge. For example, California requires 12-person juries for both felony and misdemeanor trials, except that the state and defendant may agree to less than 12-person juries in misdemeanors. Florida law provides for six-person juries in noncapital cases and 12-person juries in capital cases.

In most states, a lack of unanimity is called a "hung jury" and the defendant will go free unless the prosecutor decides to retry the case. In Oregon and Louisiana, however, 12-member juries may convict or acquit on a vote of ten to two.

Why would an innocent defendant choose not to testify?

The 5th Amendment to the U.S. Constitution gives every criminal defendant the right not to testify, and jurors are told that they cannot assume anything negative if the defendant decides to keep quiet. Of course, some jurors do make assumptions -- and they cast their votes accordingly.

But there are some excellent reasons why a defendant might remain silent in court:

• If the defendant has previously been convicted of a crime, the prosecutor may be able to bring this fact out -- but only if the defendant testifies. Evidence of a previous crime may cause some jurors to think that the defendant is guilty of the current crime, too.
• If the defendant testifies, the prosecutor may be able to bring out other information that tarnishes the defendant's reputation and discredits his testimony.
• Some defendants have a poor demeanor when speaking in public. A judge or jury may not believe a defendant who, though telling the truth, is a nervous witness and makes a bad impression.
• The defendant may have a perfectly good story that would nevertheless sound fishy to the average jury in that particular locale.

What happens if a defendant is judged "incompetent to stand trial"?

The question may arise as to whether a defendant is mentally capable of facing a trial. Defendants cannot be prosecuted if they suffer from a mental disorder that prevents them from understanding the proceedings and assisting in the preparation of their defense.

Based on a defendant's unusual behavior, a judge, prosecutor, or defense attorney may ask that trial be delayed until the defendant has been examined and his or her ability to understand the proceedings has been determined in a court hearing. If a judge finds that a defendant doesn't understand what's going on, the defendant will probably be placed in a mental institution until competence is reestablished. At that time, the trial will be held.

This situation is different from using the insanity defense. For more information on the insanity defense, see How a Defendant's Mental State Affects His or Her Responsibility for a Crime.

Reprinted with permission from the publisher, Nolo, Copyright 2008, http://www.nolo.com

Most criminal trials follow a uniform set of procedures. Here's a step by step guide to the criminal trial process.

The many rituals associated with modern trials have developed over centuries. America's common law heritage makes it possible for all states and the federal government to follow a largely uniform set of procedures. Assuming that the trial is carried out to completion, those procedures are as follows:

Decision by Judge or Jury. The defense generally decides whether a case will be tried to a judge or a jury, but in some jurisdictions both the prosecution and the defense have the right to demand a jury trial.

Jury selection. If the trial will be held before a jury, the defense and prosecution select the jury through a question and answer process called "voir dire." In federal courts and many state courts, the judge carries out this process using questions suggested by the attorneys as well as questions that the judge comes up with on his or her own.

Evidence issues. The defense and prosecution request the court, in advance of trial, to admit or exclude certain evidence. These requests are called motions "in limine."

Opening statements. The prosecution and then the defense make opening statements to the judge or jury. These statements provide an outline of the case that each side expects to prove. Because neither side wants to look foolish to the jury, the attorneys are careful to promise only what they think they can deliver. In some cases, the defense attorney reserves opening argument until the beginning of the defense case.

Prosecution case-in-chief. The prosecution presents its main case through direct examination of prosecution witnesses by the prosecutor.

Cross-examination. The defense may cross-examine the prosecution witnesses.

Redirect. The prosecution may re-examine its witnesses.

Prosecution rests. The prosecution finishes presenting its case.

Motion to dismiss (optional). The defense may move to dismiss the charges if it thinks that the prosecution has failed to produce enough evidence -- even if the jury believes it -- to support a guilty verdict.

Denial of motion to dismiss. Almost always, the judge denies the defense motion to dismiss.

Defense case-in-chief. The defense presents its main case through direct examination of defense witnesses.

Cross-examination. The prosecutor cross-examines the defense witnesses.

Redirect. The defense re-examines the defense witnesses.

Defense rests. The defense finishes presenting its case.

Prosecution rebuttal. The prosecutor offers evidence to refute the defense case.

Settling on jury instructions. The prosecution and defense get together with the judge and craft a final set of instructions that the judge will give the jury.

Prosecution closing argument. The prosecution makes its closing argument, summarizing the evidence as the prosecution sees it and explaining why the jury should render a guilty verdict.

Defense closing argument. The defense makes its closing argument, summarizing the evidence as the defense sees it and explaining why the jury should render a not guilty verdict -- or at least a guilty verdict on a lesser charge.

Prosecution rebuttal. The prosecution has the last word, if it chooses to do so, and again argues that the jury has credible evidence that supports a finding of guilty.

Jury instructions. The judge instructs the jury about what law to apply to the case and how to carry out its duties. (Some judges "preinstruct" juries, reciting instructions before closing argument or even at the outset of trial.)

Jury deliberations. The jury deliberates and tries to reach a verdict. Most states require unanimous agreement, but Oregon and Louisiana allow convictions with only 10 of 12 votes.

Post-trial motions. If the jury produces a guilty verdict, the defense often makes post-trial motions requesting the judge to override the jury and either grant a new trial or acquit the defendant.

Denial of post-trial motions. Almost always, the judge denies the defense post-trial motions.

Sentencing. Assuming a conviction (a verdict of "guilty"), the judge either sentences the defendant on the spot or sets sentencing for another day.

Reprinted with permission from the publisher, Nolo, Copyright 2008, http://www.nolo.com

Here are some of the common defenses that criminal defendants can raise to defend against criminal charges.

To convict a criminal defendant, the prosecutor must prove the defendant guilty beyond a reasonable doubt. As part of this process, the defendant is given an opportunity to present a defense. There are many types of defenses, from "I didn't do it" to "I did it, but I was too drunk to know what I was doing." Here are some of the most common defenses that criminal defendants can raise.

The Defendant Didn't Do It

Most often defendants try to avoid punishment by claiming they did not commit the act in question.

The Presumption of Innocence

All people accused of a crime are legally presumed to be innocent until they are convicted, either in a trial or as a result of pleading guilty. This presumption means not only that the prosecutor must convince the jury of the defendant's guilt, but also that the defendant need not say or do anything in his own defense. A defendant may simply remain silent, not present any witnesses, and argue that the prosecutor failed to prove his or her case. If the prosecutor can't convince the jury that the defendant is guilty, the defendant goes free.

Reasonable Doubt

The prosecutor must convince the judge or jury hearing the case that the defendant is guilty "beyond a reasonable doubt." This standard is very hard to meet. As a practical matter, the high burden of proof in criminal cases means that judges and jurors are supposed to resolve all doubts about the meaning of the evidence in favor of the defendant. With such a high standard imposed on the prosecutor, a defendant's most common defense is often to argue that there is in fact reasonable doubt.

The Alibi Defense

An alibi defense consists of evidence that a defendant was somewhere other than the scene of the crime at the time it was committed. For example, assume that Freddie is accused of committing a burglary on Elm Street at midnight on Friday, September 13. Freddie's alibi defense might consist of testimony that at the time of the burglary, Freddie was watching Casablanca at the Maple Street Cinema.

The Defendant Did It, But ...

Sometimes a defendant can avoid punishment even if the prosecutor shows that that the defendant did, without a doubt, commit the act in question.

Self-Defense

Self-defense is a defense commonly asserted by someone charged with a crime of violence, such as battery (striking someone), assault with a deadly weapon, or murder. The defendant admits that he or she did in fact commit the crime, but claims that it was justified by the other person's threatening actions. The core issues in most self-defense cases are:

• Who was the aggressor?
• Was the defendant's belief that self-defense was necessary a reasonable one?
• If so, was the force used by the defendant also reasonable?

Self-defense is rooted in the belief that people should be allowed to protect themselves from physical harm. This means that a person does not have to wait until he or she is actually struck to act in self-defense. If a reasonable person in the same circumstances would think that he or she is about to be physically attacked, that person has the right to strike first and prevent the attack. However, an act of self-defense cannot use more force than is reasonable -- someone who uses too much force may be guilty of a crime.

The Insanity Defense

The insanity defense is based on the principle that punishment is justified only if the defendant is capable of controlling his or her behavior and understanding that what he or she has done is wrong. Because some people suffering from a mental disorder are not capable of knowing or choosing right from wrong, the insanity defense prevents them from being criminally punished.

The insanity defense is an extremely complex topic; many scholarly works are devoted entirely to explaining its nuances. Here are some major points of interest:

• Despite popular perceptions to the contrary, defendants rarely enter pleas of "not guilty by reason of insanity." When they do, judges and jurors rarely uphold it.
• Various definitions of insanity are in use because neither the legal system nor psychiatrists can agree on a single meaning of insanity in the criminal law context. The most popular definition is the "McNaghten rule," which defines insanity as "the inability to distinguish right from wrong." Another common test is known as "irresistible impulse": a person may know that an act is wrong, but because of mental illness he or she cannot control his or her actions (this person is described as acting out of an "irresistible impulse").
• Defendants found not guilty by reason of insanity are not automatically set free. They are usually confined to a mental institution until their sanity is established. These defendants can spend more time in a mental institution than they would have spent in prison had they been convicted.
• An insanity defense normally rests on the testimony of a psychiatrist, who testifies after examining the defendant, his or her history, and the facts of the case. Courts appoint psychiatrists at government expense to assist poor defendants who cannot afford to hire their own psychiatrists.
• Once a defendant raises his or her sanity as a defense, he or she must submit to psychological tests conducted at the behest of the prosecution. This can be a very painful and humiliating experience, one that many defendants choose to forgo rather than rely on the insanity defense.

Under the Influence

Defendants who commit crimes under the influence of drugs or alcohol sometimes argue that their mental functioning was so impaired that they cannot be held accountable for their actions. Generally, however, voluntary intoxication does not excuse criminal conduct. Defendants know (or should know) that alcohol and drugs affect mental functioning, and thus they should be held legally responsible if they commit crimes as a result of their voluntary use.

Some states allow an exception to this general rule. If the defendant is accused of committing a crime that requires "specific intent" (intending the precise consequences, as well as intending to do the physical act that leads up to the consequences), the defendant can argue that he was too drunk or high to have formed that intent. This is only a partial defense, however, because it doesn't entirely excuse the defendant's actions. In this situation, the defendant will usually be convicted of another crime that doesn't require proof of a specific intent. For example, a defendant may be prosecuted for the crime of assault with specific intent to kill but only convicted of assault with a deadly weapon, which doesn't require specific intent.

Entrapment

Entrapment occurs when the government induces a person to commit a crime and then tries to punish the person for committing it. However, if a judge or jury believes that a suspect was predisposed to commit the crime anyway, the suspect may be found guilty even if a government agent suggested the crime and helped the defendant to commit it. Entrapment defenses are therefore especially difficult for defendants with prior convictions for the same type of crime.

To learn more about criminal defenses and all other aspects of a criminal trial, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara J. Berman-Barrett (Nolo).

Reprinted with permission from the publisher, Nolo, Copyright 2008, http://www.nolo.com

How judges decide what a convicted criminal defendant's punishment will be.

Who determines what punishment a convicted defendant receives?

Judges, not juries, almost always determine the punishment, even following jury trials. In fact, a common jury instruction warns jurors not to consider the question of punishment when deciding a defendant's guilt or innocence. In a very few situations, juries do take part in sentencing decisions. For example, in capital punishment cases in some states, a judge cannot impose the death penalty in a jury trial unless the jury recommends death rather than life in prison.

Where can the prescribed punishment for crimes be found?

Sometimes the law a defendant is charged with violating identifies the punishment. For example, a statute identifying specific behavior as a misdemeanor might go on to state, "For a first-time offense, an offender may be fined not more than $1,000 or imprisoned for not more than six months, or both."

Other laws that define crimes might describe particular behavior as a misdemeanor or felony without specifying the punishment. In this situation, the punishment can be found in a separate statute that sets forth the punishment either for that particular misdemeanor (or felony), or, in some states, for all misdemeanors.

Often, however, sentences aren't listed in statutes or court rules. If you want to find out what your punishment is likely to be if you're convicted, you might take the following steps:

• Pay a private defense attorney for an hour of consultation. An experienced defense attorney can often make accurate predictions as to likely punishment.
• Talk to an attorney from the public defender's office.
• Ask a relative or close friend who is or who knows an attorney for informal, unpaid advice.

Do people convicted of the same or similar crimes receive similar sentences?

Some state include "mandatory sentences," which require judges to impose specific and identical sentences on all defendants who violate those laws. Mandatory sentencing laws are a response by state legislatures to their perception of the public's desire to end judicial leniency and treat alike all people who break the same law. Federal law used to prescribe mandatory sentences; these are now used more like guidelines.

More commonly, criminal statutes do not carry mandatory sentences. Rather, judges can take a number of factors into account when deciding on an appropriate punishment. For instance, judges may consider the defendant's past criminal record, age, and sophistication; the circumstances under which the crime was committed; and whether the defendant genuinely feels remorse. In short, mandatory sentence laws "fit the punishment to the crime," whereas judges prefer to "fit the punishment to the offender."

What factors do judges use in determining sentences?

If the judge has discretion to determine the sentence, the defense may bring to a judge's attention an infinite number of factual circumstances that may move the judge to impose a lighter sentence. The following are examples of such circumstances (called "mitigating" factors):

• The offender has little or no history of criminal conduct.
• The offender was an accessory to the crime (helped the main offender) but was not the main actor.
• The offender committed the crime when under great personal stress; for example, he or she had lost a job, was late on rent, and had just been in a car wreck.
• No one was hurt, and the crime was committed in a manner that was unlikely to have hurt anyone.

Just as mitigating circumstances can sway a judge to lessen a sentence, "aggravating" circumstances can compel a judge to "throw the book at" an offender. A previous record of the same type of offense is the most common aggravating factor. Other aggravating circumstances grow out of the way a crime was committed, as when an offender is particularly cruel to a victim. Sometimes, laws themselves specify aggravating factors, such as the use of a weapon.

Can my attorney ask for an alternative sentence?

Yes, lesser sentences can include suspended sentences, probation, restitution (victim compensation), and community service. Diversion programs, available to some defendants charged with misdemeanors involving drugs or alcohol, also may be available. For details, see Sentencing Alternatives: Prison, Probation, Fines, and Community Service.

Reprinted with permission from the publisher, Nolo, Copyright 2008, http://www.nolo.com

If you are pulled over by the police, learn what to say and when vehicle searches are legal.

If you are pulled over by the police, you will be in a much better position to challenge your ticket in court if you take a few simple steps. Here are some suggestions.

1. When You See the Police Car

If a police car is following you with its siren blaring or emergency lights flashing, pull over to the right safely and quickly. Pull over in a way that will be most likely to calm down an angry or annoyed traffic officer. Use your turn signal to indicate any lane changes from left to right, and slow down fairly quickly, but not so quickly that the officer will have to brake to avoid hitting you. Pull over as far to the right as possible so that, when the officer comes up to your widow, he or she won't have to worry about being clipped by vehicles in the right lane.

By stopping as soon as you can, you'll have a better chance of figuring out exactly where the officer says you committed a violation. You may want to return to that area later to make sure the officer was telling the truth about how he or she judged your speed, saw your turn, or witnessed any other violation.

2. Right After You Stop

After you've pulled over to a safe spot, you might want to show the officer a few other token courtesies. At this point, you have little to lose and perhaps something to gain.

First off, roll down your window all the way. You may also want to turn off the engine, place your hands on the steering wheel, and, if it's dark, turn on your interior light. This will tend to allay any fears the officer may have. (After all, police officers are killed every day in such "ordinary" traffic-stop situations, and the officer's approach to the vehicle is the potentially most dangerous.)

Don't start rummaging through your back pocket for your wallet and license, or in your glove compartment for your registration, until the officer asks you for them. For all the officer knows, you could be reaching for a gun.

If you are at all concerned that the person who stopped you is not actually a police officer (for example, if the car that pulled you over is unmarked), you should ask to see the officer's photo identification along with his badge. If you still have doubts, you can ask that the officer to call a supervisor to the scene or you can request that you be allowed to follow the officer to a police station.

3. Avoid Giving the Officer an Excuse to Search

A police officer is normally not allowed to search your vehicle. However, there are several exceptions to this. An officer who observes you trying to either hide something under the seat or throw something out the window may legally search your car. Once cops are on your rear bumper with his spotlight silhouetting your every move, they're watching for any sort of furtive movement. A sudden lowering of one or both shoulders will tip them off that you're attempting to hide something under the seat.

If the officer has a reasonable suspicion you are armed and dangerous, he or she can frisk you (pat you down). Similarly, if the officer reasonably suspects that you are involved in criminal activity he or she can also perform a pat down, and if police officers have probable cause -- a reasonable basis or justification to believe that you or your passengers are involved in criminal activity -- they can search your car and objects belonging to passengers.

Even if the officer doesn't have reasonable suspicion or probable cause, once you are stopped, a police officer may seize any illegal objects in your car that are in "plain view." Once they see the object, such as open beer or wine bottles or drug paraphernalia, they can open the car door to reach in and get it. After that, they may come across other objects that are in plain view and shouldn't be in your car, and they can seize these, too.

Lastly, your car may also be searched if you or any occupant is arrested. Also, if you're arrested and your car is towed, the police may make an "inventory search" afterward, even if they have no reason to suspect there is anything illegal inside.

4. Should You Get Out of Your Car?

An officer who stops you for an alleged traffic violation has the right to insist that you and your passengers get out of your car. You should do so if asked. Also, getting out of your car may make it easier for you to check road conditions, the weather, and the place the violation supposedly occurred.

However, many police officers prefer that you stay in your car and will tell you to stay there if you start to get out. If this happens, obviously you should cooperate. If you get out of the car against the officer's orders, don't be surprised to see a gun pointing at you. Cops are trained to expect the worst. When you get out of your car, they may assume you're about to pull a weapon or attempt to flee.

If an officer has any reason to believe that you might be dangerous, he or she has a right to conduct a quick "pat-down" search of your outer clothing while standing next to you, to make sure you don't have a concealed knife or gun. If the officer feels any weapon-sized object during the pat-down search, he or she can reach in and get it. Also, the officer's good faith belief that you may be dangerous justifies a search of the passenger compartment of your car for weapons.

5. Talking to the Officer
Many people stopped by an officer make the mistake of saying the wrong thing to him or her and failing to say the right things, and a case can be won or lost depending on what you say -- or don't say -- to the officer.

Don't speak first. Especially don't start off with a defensive or hostile "What's the problem?" or similar words. Let the officer start talking. He or she will probably ask to see your license and vehicle registration. Many people make the mistake of insisting the officer tell them why they were stopped before they'll comply. Don't make that mistake. Reply "okay" or "sure," then hand over the documents.

One of the first things traffic cops learn in the police academy is to decide, before leaving their vehicle, whether they're going to give a ticket or just a warning. They may act as though they still haven't made up their minds and are going to let you off only if you'll cooperate. Don't fall for this. The hesitating officer may be trying to appear open-minded in order to extract admissions out of you, to use them against you in court if necessary. The strategy is to try to get you to admit either that you committed a violation or that you were so careless, inattentive, or negligent that you don't know whether you did or not.

The officer might start by asking you the sort of question whose lack of a definite answer would imply guilt, like, "Do you know why I stopped you?" Or, he or she might ask, "Do you know how fast you were going?" Your answers, if any, should be non-committal and brief, like a simple "No" to the first question or a very confident, "Yes, I do," to the second. If the officer then tells you how fast he or she thinks you were going or what he or she thinks you did, don't argue. Give a noncommittal answer, like, "I see," or no answer at all. Silence is not an admission of guilt and cannot be used against you in court.

Reprinted with permission from the publisher, Nolo, Copyright 2008, http://www.nolo.com

by Attorney Paul Bergman

Get the latest news in criminal law – from vehicle searches to federal sentencing to death penalty trends.

In general, 2007 saw few major national changes in rules pertaining to criminal law and procedure. However, there were a few developments of note, including new search and seizure rights, continued decisions on sentencing those convicted of federal crimes, and certain trends in the death penalty area.

Police Have More Rights to Search Cars and Occupants

When police officers pull a vehicle over for a traffic infraction, they usually cite the driver and allow the driver to continue on his or her way. However, recognizing the potential danger to police officers and the mobility of cars, in 2007 the U.S. Supreme Court issued rulings that authorize police officers to protect themselves by asking the driver and any passengers to stand outside the vehicle.

In the case of Brendlin v. California (2007), the U.S. Supreme Court ruled that police officers who carry out traffic stops “seize” all of a car’s occupants. The decision makes clear that police officers have the same power over passengers that they do over drivers. For example, if a police officer reasonably suspects that a car’s occupant is armed, the officer can conduct a “pat down” search of that person regardless of whether he is the driver or a passenger. As a result of this ruling, drivers as well as passengers alike can challenge the legality of a stop and any ensuing search and arrest. (To learn more about search and seizure during traffic stops, see Nolo’s Search, Seizure, and Interrogations area.)

Federal Trial Court Judges Have More Say in Sentencing

In 2007, the U.S. Supreme Court continued its trend of allowing federal trial courts more discretion in sentencing those convicted of crimes.

History of the “Sentencing Guidelines.” Concerned about disparities and leniency in sentencing, over two decades ago the U.S. Congress enacted The Sentencing Reform Act of 1984. The law led to the creation of a Guidelines Manual, which set forth mandatory sentences for almost all federal crimes. Mandatory sentencing requires judges to impose specific and identical sentences on all defendants who violate laws, rather than allowing the judge to consider various factors when deciding on an appropriate punishment, such as the defendant's past criminal record, age, and sophistication; the circumstances under which the crime was committed; and whether the defendant genuinely feels remorse.

Over the years, many judges, defense attorneys, and even prosecutors came to oppose the mandatory sentence scheme, believing that it was too rigid and too harsh. Finally, in the case of U.S. v. Booker (2005), the U.S. Supreme Court ruled that the sentences set forth in the Guidelines Manual were advisory and not mandatory.

2007: Sentencing Discretion for Federal Judges Continues. In 2007, the U.S. Supreme Court issued several opinions that further clarified the discretion of federal trial court judges in sentencing those convicted of crimes.

In Gall v. U.S. (2007), the Court ruled that appellate court judges cannot substitute their judgment for that of a trial judge. An appellate court judge can only reverse a trial judge’s sentence if it constitutes an abuse of discretion. (An appellate court is a higher court that reviews the decision of a trial court when a losing party files an appeal.)

If a trial judge issues a sentence that is within the range specified in the Guidelines Manual, it is presumed to be reasonable. ( Rita v. U.S. (2007).) But a trial judge can issue a sentence that departs from this range, and it will still stand on appeal as long as it is reasonable. For example, if a trial judge believes that the Guidelines’ recommended punishment for possession of crack cocaine is unduly harsh compared to the recommended punishment for powder cocaine, the trial judge can give a lesser sentence for possession of crack cocaine. Such a decision is final as long as it is reasonable. (Kimbrough v. U.S. (2007).)

Death Penalty Update

The number of death sentences handed out and the number of executions carried out continued to decrease in 2007. Forty-two executions were carried out in 2007, compared to 53 executions in 2006, 60 executions in 2005, 59 executions in 2004, 65 executions in 2003, and 71 executions in 2002. In 2007, 110 convicted murderers were given death sentences, compared to 114 in 2006 and 128 in 2005.

Another state abolishes the death penalty. New Jersey abolished the death penalty in 2007. As a result, 37 states now authorize the death penalty.

Lethal injection method under attack. The U.S. Supreme Court has heard arguments in the case of Baze v. Rees and should issue its decision sometime in 2008. Baze v. Rees centers on whether the most frequently used combination of drugs used for execution by lethal injection, sometimes called a “three drug cocktail,” violates the 8th Amendment’s proscription of cruel and unusual punishment. Ten states placed a moratorium on executions by lethal injection even before the Supreme Court announced its decision to hear the case, and after its announcement, a few more states did so.

To learn more about how the criminal justice system works, including the latest U.S. Supreme Court decisions, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman and Sara Berman (Nolo).

Reprinted with permission from the publisher, Nolo, Copyright 2008, http://www.nolo.com

Learn when police officers must obtain a warrant before they search your home or other property.

A search warrant is an order signed by a judge that authorizes police officers to search for specific objects or materials at a definite location at a specified time. For example, a warrant may authorize the search of "the premises at 11359 Happy Glade Avenue between the hours of 8 a.m. to 6 p.m." and direct the police to search for and seize "cash, betting slips, record books, and every other means used in connection with placing bets on horses."

How Police Obtain Search Warrants

Police officers obtain search warrants by convincing a judge or magistrate that they have "probable cause" to believe that criminal activity is occurring at the place to be searched or that evidence of a crime may be found there. Usually, the police provide the judge or magistrate with information in the form of written statements under oath, called "affidavits," which report either their own observations, or those of private citizens or police undercover informants. If the magistrate believes that the affidavit establishes probable cause to conduct a search, he or she will issue a warrant.

The suspect, who may be connected with the place to be searched, is not present when the warrant is issued and therefore cannot contest the issue of probable cause at that time. However, the suspect can later challenge the validity of the warrant before trial.

What Police Can Search for and Seize Under a Warrant

The police can search only the place described in a warrant and usually can seize only the property that the warrant describes. The police cannot search a house if the warrant specifies the backyard, nor can they search for weapons if the warrant specifies marijuana plants. However, this does not mean that police officers can seize only those items listed in the warrant. If, in the course of their search, police officers come across contraband or evidence of a crime that is not listed in the warrant, they can lawfully seize the unlisted items.

If the warrant specifies a certain person to be searched, the police can search only that person, unless they have independent probable cause to search other persons who happen to be present at the scene of a search. If an officer merely has a reasonable suspicion that an onlooker is engaged in criminal activity, the officer can only question the onlooker and, if necessary for the officer's safety, conduct a frisk for weapons (but not do a full search).

When Search Warrants Aren't Required

Most searches occur without warrants being issued. Over the years, the courts have defined a number of situations in which a search warrant is not necessary, either because the search is per se reasonable under the circumstances or because, due to a lack of a reasonable expectation of privacy, the Fourth Amendment doesn't apply at all.

Consent Searches

If the person in control of the premises freely and voluntarily agrees to the search, the search is valid and whatever the officers find is admissible in evidence. Police officers do not have to warn people that they have a right to refuse consent to a search. If a police officer wrangles a consent through trickery or coercion, the consent does not validate the search.

Many disputes about consent have to do with who has the right to consent. If there are two or more separate tenants in one dwelling, courts often rule that one tenant has no power to consent to a search of the areas exclusively controlled by the other tenants (for instance, their separate bedrooms). Similarly, a landlord lacks authority to consent to a search of leased premises. The same is true for hotel operators.

On the other hand, an employer can validly consent to a search of company premises, which extends to an employee's work area but not to clearly private areas such as an employee's clothes locker. A tricky twist is that the consent in these types of cases will be considered valid if the police reasonably believe that the consenting person has the authority to consent, even if it turns out they don't.

The Plain View Doctrine

Police officers do not need a warrant to search and seize contraband or evidence that is "in plain view" if the officer has a right to be where the evidence or contraband is first spotted. For instance, the police may search for and seize marijuana growing outdoors if they first spot the marijuana from an airplane or helicopter, since the marijuana is deemed to be in plain view. Similarly, if an officer walks by a car and spots evidence or contraband through the car window, a search may be conducted without a warrant. The same rule would apply if an officer is in your home for other valid reasons and spots drugs on a table or cabinet.

Search Made in Connection With an Arrest

Police officers do not need a warrant to make a search "incident to an arrest." After an arrest, police officers have the right to protect themselves by searching for weapons and to protect the legal case against the suspect by searching for evidence that the suspect might try to destroy.

Police may sometimes also make what's known as a "protective sweep" following an arrest if they have a reasonable belief that a dangerous accomplice might be hiding inside a residence. When making a protective sweep, police officers can walk through a residence and make a "cursory visual inspection" of places where an accomplice might be hiding. For example, police officers could look under beds and inside closets. If a sweep is lawful, the police can lawfully seize contraband or evidence of crime that is in plain view during the sweep.

The Emergency Exception

As a general rule, the police are authorized to make a warrantless search when the time it would take to get a warrant would jeopardize public safety or lead to the loss of important evidence. Here are some situations in which most judges would uphold a warrantless search:

• An officer checks an injured motorist for possible injuries following a collision and finds illegal drugs.
• Following a street drug arrest, an officer enters the house after the suspect shouts into the house, "Eddie, quick, flush it!" The officer arrests Eddie and seizes the stash.
• A police officer on routine patrol hears shouts and screams coming from a residence, rushes in, and arrests a suspect for spousal abuse.
• A police officer "in hot pursuit" of a fleeing suspect continues the chase into the suspect's dwelling in order to make the arrest.
  In these types of emergency situations, an officer's duty to protect people and preserve evidence outweighs the warrant requirement.

Allowing Police to Make a Warrantless Search

A search warrant is not always legally necessary, and a police officer may have information of which a person is unaware that allows the officer to make a warrantless entry. If an officer announces an intention to enter a home or building without a warrant, a person should not risk injury or a separate charge of "interfering with a police officer." Rather, the person should stand aside, let the officer proceed and allow a court to decide later whether the officer's actions were proper. At the same time, the person should make it clear that he or she does not consent to the search.

Searches of Cars and Their Occupants

Cars may be searched without a warrant whenever the car has been validly stopped and the police have probable cause to believe the car contains contraband or evidence. If the police have probable cause to search the car, all compartments and packages that may contain the evidence or contraband being searched for are fair game.

While a police officer cannot search a car simply because the car was stopped for a traffic infraction, the police can order the driver and any passengers out of the car for safety considerations, even though there is no suspicion of criminal wrongdoing other than the traffic infraction. The police also can "frisk" the occupants for weapons if the officers have a "reasonable suspicion" that the occupants are involved in criminal activity and are reasonably concerned for their safety.

For more information on the legallity of various police searches and seizures, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman (Nolo).

Reprinted with permission from the publisher, Nolo, Copyright 2008, http://www.nolo.com

Your right to privacy when the police come knocking, pull you over, or stop you on the street.

When is a police investigation considered a search?

A police investigation constitutes a search if it intrudes on a person's "legitimate expectation of privacy." Courts ask two questions to determine whether a person had a legitimate expectation of privacy in the place or things searched:

• Did the person expect some degree of privacy?
• Is the person's expectation reasonable -- that is, one that society is willing to recognize?

If the answer to either of the above questions is “no,” then the investigation is not a “search.” (To learn more about what constitutes a legitimate expectation of privacy, see Understanding Search and Seizure Law.)

How private is your property?

Generally, a search takes place if the police have to enter your property in order to view contraband or evidence of a crime. The police can then use what they have seen on your property in order to get a search warrant. Or, if the situation calls for prompt action (the need to stop a drug deal in progress, for instance), they may enter your dwelling without a warrant. (To learn more about the plain view doctrine and other exceptions to the search warrant requirement, see Search Warrants: What They Are and When They’re Necessary.)

How does this play out in real life? Law enforcement officers are allowed to take aerial photographs or come close enough to overhear your conversations. However, they probably cannot use sophisticated equipment to discover what is on your property or to eavesdrop on your conversations (unless, of course, they get a warrant or qualify for one of the warrant exceptions).

The general rule is this: if the investigation method is highly artificial and high-tech, it's likely to be considered a search. Where the line is drawn, however, is not always clear and can vary from state to state. This will change if the U.S. Supreme Court decides whether the investigatory method constitutes a search for purposes of the Fourth Amendment; its decisions are binding on all states.

What is a search warrant and what does it take to get one?

A search warrant is a kind of permission slip, signed by a judge, that allows the police to enter private property to look for particular items. It is addressed to the owner of the property, and tells the owner that a judge has decided that it is reasonably likely that certain contraband, or evidence of criminal activities, will be found in specified locations on the property.

As a general rule, the police are supposed to apply for a warrant before conducting a search of private property; any search that is conducted without a warrant is presumed to be unreasonable. This means that the police officers will later have to justify the search -- and why a warrant wasn't obtained first -- if the defendant challenges it in court.

A judge will issue a search warrant if the police provide enough information to show that:

• it is more likely than not that a crime has taken place, and
• items connected to the crime are likely be found in a specified location on the property.

The police usually provide information that is (1) based either on the officers' own observations, or (2) based on the secondhand observations of an informant.
If providing secondhand information, the police generally must convince the judge that it is “reliable.” Usually, this means that the information is corroborated by police observation. For example, a citizen's tip that someone regularly delivers drugs to a certain location would be corroborated if an officer observes the person's routine.

However, corroboration of secondhand information is not necessary in every case. Sometimes a judge will issue a warrant if the source of the information is known to the police and has provided trustworthy information in the past.

To learn more about search warrants, see Search Warrants: What They Are and When They’re Necessary.

What are the police allowed to do after they obtain a search warrant?

Once the police have a search warrant, they are entitled to enter the designated property to search for the items listed on the warrant. Legally, the search is supposed to be confined to the specific areas described in the warrant. For example, if the search warrant includes only the living room, the search should not extend into the kitchen, bathroom or bedroom.

But there are exceptions to this limitation which are frequently used to justify broader searches. For example, the police may search beyond the terms of the warrant in order to:

• ensure their safety and the safety of others
• prevent the destruction of evidence
• discover more about possible evidence or contraband that is in plain view elsewhere on the property, or
• hunt for evidence or contraband that, as a result of their initial search, they believe exists in another location on the property.

For instance, although a warrant might be issued for the search of a house, the sound of a shotgun being loaded in the backyard would justify expanding the search to the yard in order to protect the officers; similarly, a search limited to the ground floor might legitimately expand to the upstairs if the police, searching for illegal drugs, hear toilets being flushed above. And the police can always seize evidence or illegal items if they are in plain view or are discovered while the officers are searching for the items listed in the warrant.

Do the police always need a warrant to conduct a search?

No. In many situations, police may legally conduct a search without first obtaining a warrant. Here are some of the main exceptions (to learn more about these exceptions, see Search Warrants: What They Are and When They’re Necessary):

• Consent searches. If the police ask your permission to search your home or other property, and you agree, the search is considered consensual, and they don't need a warrant.
• Searches made in connection with an arrest. When a person is placed under arrest, the police may search the person and the immediate surroundings for weapons that might be used to harm the officer.
• Emergency exception. The police don't need a warrant if they have a reasonable fear that their safety, or that of the public, is in imminent danger.
• The plain view doctrine. A police officer does not need to obtain a warrant to search and seize contraband that is “in plain view.”

Can my roommate -- or my landlord -- give the police permission to search my apartment?

The police may search your apartment if the person in charge of the premises gives permission. If you and your roommate share common areas (such as the kitchen and living room), your roommate can authorize a search of those areas. But your roommate cannot give permission to search your separate bedroom.

Similarly, your landlord cannot give permission to search your apartment. However, if the police can point to circumstances that would justify immediate entry -- such as the sound of a ferocious fight or the smell of burning marijuana -- they may enter without permission from anyone.

If a police officer pulls me over, can she frisk me or search my car?

Yes, if the officer has a reasonable suspicion you are armed and dangerous, she can frisk (pat down) you when you are pulled over for a traffic violation. Similarly, if the officer reasonably suspects that you are involved in criminal activity she can also perform a pat down. Assuming the police have probable cause -- a reasonable basis or justification to believe that you or your passengers are involved in criminal activity -- they can search your car and objects belonging to passengers.

If my car is towed and impounded, can the police search it?

Yes. If your car is impounded, the police are allowed to conduct a thorough search of it, including its trunk and any closed containers that they find inside. This is true even if your car was towed after you parked it illegally or if the police recover your car after it is stolen.

The police are required, however, to follow fair and standardized procedures when they search your car, and may not stop you and impound your car simply to perform a search.

Reprinted with permission from the publisher, Nolo, Copyright 2008, http://www.nolo.com

A convicted defendant's punishment need not include prison.

A sentence may involve one or more different elements, including incarceration (prison, jail), probation, restitution (victim compensation), and community service.

Prison Sentences

Some state laws require the judges to impose what are called "determinate" prison sentences. A determinate sentence is a fixed-term sentence pronounced by a judge. For example, a defendant sentenced to "30 days in county jail" or "five years in state prison" has received a determinate sentence.

Other state laws require judges to give "indeterminate sentences." Indeterminate sentences are those in which the legislature sets a minimum and/or maximum time of incarceration but leaves the decision as to when to release an inmate to prison officials. As a general rule, indeterminate sentences are only imposed on people who are sentenced to state prison after being convicted of a felony.

Suspended Sentences and Probation

Sometimes a defendant's prison sentence is "suspended." A suspended sentence is jail or prison time that is put on hold if the defendant complies with certain other obligations, for example, the conditions of probation or the completion of a drug treatment program.

Under a suspended sentence, if the prosecution or probation department can convince a judge that the defendant violated the condition that led to the sentence being suspended in the first place, the judge has authority to order the defendant to serve the original sentence. The probationer is not entitled to a full-blown trial when the question is only whether the defendant violated probation, though the prosecution can choose to also file charges on the incident.

Most states limit when and under what circumstances a court may impose probation on a criminal defendant. For instance, some states do not allow a judge to impose probation on defendants who have a prior conviction for cocaine sales.

Offenders who are put on probation are typically required to adhere to a number of "conditions of probation," including:

• Obey all laws (even petty laws like jaywalking have been known to land a probationer back in jail).
• Abide by any court orders, such as an order to pay a fine or restitution.
  Report regularly to the probation officer.
• Report any change of employment or address to the probation officer.
  Abstain from the excessive use of alcohol or the use of any drugs.
• Submit to regular alcohol or drug testing.
• Refrain from travel outside of the jurisdiction without prior permission of the probation officer.
• Avoid certain people and places.

If a probation violation is discovered and reported, it is likely that the court will conduct a probation revocation hearing.

Fines

Fines are a common punishment for a variety of crimes, especially less serious offenses committed by first-time offenders. Offenses that are typically punished by a fine include minor drug possession (of a small amount of marijuana, for example), fish and game violations, shoplifting, traffic violations, and first-time drunk driving cases. In more serious offenses or where the defendant has a criminal record, many judges combine a fine with other punishments, such as incarceration, community service, and probation.

Restitution

While fines go to the state (or federal or local government prosecuting the crime), restitution is money paid by the defendant to the victim or to a state restitution fund. Offenders may be required to return or replace stolen or damaged property, to compensate victims for physical injuries or for medical and psychological treatment costs, or to pay funeral and other costs where a victim dies.

In some cases, the "victim" is society, such as in welfare and Medicare fraud schemes, where defendants may be sentenced to pay the state back the money defrauded. Typically, the defendant will be ordered to pay restitution as just one part of the sentence, in addition to prison, community service, and/or probation.

Community Service

Judges can sentence defendants to perform unpaid community work called "community service" to repay a debt to society for having committed the offense. The defendant may be required to perform community service in addition to receiving some other form of punishment, such as probation, a fine, or restitution.

Miscellaneous "Alternative Sentences"

There are many different types of "alternative sentences," which can include fairly innovative punishments. Offenders have been required to:

• install breathalyzer devices in their cars so that their cars will not start unless the offender has "clean" breath
• give lectures or teach classes about the dangers of criminal behavior
  attend lectures given by crime victims
• complete a drug or alcohol treatment program
• do weekend jail time, or
• stay at home under "house arrest."

Diversion

Some cases can be "diverted" out of the criminal justice system. Criminal charges are normally dropped when a defendant successfully completes a diversion program. Diversion gives defendants a chance to escape the stigma of a criminal conviction.

Defendants whose cases are diverted typically have to participate in a treatment or rehabilitation program. Diversion programs are most often available to defendants charged with misdemeanors and nonviolent felonies involving drugs or alcohol. In some jurisdictions, diversion may be available to defendants charged with domestic violence, child abuse or neglect, traffic-related offenses, or even writing bad checks.

Prosecutors sometimes voluntarily offer diversion to defendants who are clearly eligible under a community's guidelines. Defense counsel may also suggest diversion to prosecutors, sometimes even before formal charges are filed.

Reprinted with permission from the publisher, Nolo, Copyright 2008, http://www.nolo.com

Learn when the government can invade your privacy to hunt for evidence of a crime.

The Fourth Amendment to the U.S. Constitution places limits on the power of the police to make arrests, search people and their property, and 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.

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."

The search and seizure provisions of the Fourth Amendment are all about privacy. To honor this freedom, 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.

Search warrants are discussed in detail in Search Warrants: What They Are and When They're Necessary.

When the Fourth Amendment Doesn't Protect You

The Fourth Amendment applies to a search only if a person has a "legitimate expectation of privacy" in the place or thing searched. If not, the Fourth Amendment offers no protection because there are, by definition, no privacy issues.

Courts use a two-part test (fashioned by the U.S. Supreme Court) to determine whether, at the time of the search, a defendant had a legitimate expectation of privacy in the place or things searched:

• Did the person actually expect some degree of privacy?
• Is the person's expectation objectively reasonable -- that is, one that society is willing to recognize?

For example, a person who uses a public restroom expects not to be spied upon (the person has an expectation of privacy) and most people -- including judges and juries -- would consider that expectation to be reasonable (there is an objective expectation of privacy as well). Therefore, the installation of a hidden video camera by the police in a public restroom will be considered a "search" and would be subject to the Fourth Amendment's requirement of reasonableness.

On the other hand, when the police look for and find a weapon on the front seat of a car, it is not considered a search under the Fourth Amendment because it is very unlikely that the person would think that the front seat of the car is a private place (an expectation of privacy is unlikely), and even if the person did, society is not willing to extend the protections of privacy to that particular location (no objective expectation of privacy).

A good example of how this works comes from a U.S. Supreme Court case in which the court held that a bus passenger had a legitimate expectation of privacy in an opaque carry-on bag positioned in a luggage rack above the passenger's head, and that the physical probing by the police of the bag's exterior for evidence of contraband constituted a search subject to Fourth Amendment limitations. (Bond v. U.S., No. 98-9349 (April 17, 2000).)

Restrictions on Private Security Personnel

Private security personnel currently outnumber police officers in the United States by three to one. As a result, whether you're shopping in a supermarket or a pharmacy, working in an office building, or visiting a friend in a housing project, you may be more likely to be confronted by a security guard than by a police officer. At the present time, the Fourth Amendment does not apply to searches carried out by non-governmental employees like private security guards.

For example, assume that a shopping mall security guard acting on a pure hunch searches a teenager's backpack. Inside the backpack the guard finds a baggie containing an illegal drug. The guard can detain the teenager, call the police, and turn the drug over to a police officer. The drug is admissible in evidence, because the search was conducted by a private security guard. As private security guards increasingly exercise traditional police functions, courts may one day apply Fourth Amendment guidelines to their conduct.

What Happens When A Search Violates the Fourth Amendment

The exclusionary rule. If, upon review, a court finds that an unreasonable search occurred, any evidence seized as a result of the search cannot be used as direct evidence against the defendant in a criminal prosecution, state or federal. This rule, established by the U.S. Supreme Court in 1961, has come to be known as the "exclusionary rule."

To this day, many commentators criticize the exclusionary rule on the ground that it unfairly "lets the criminal go free because the constable has erred." But the rule's supporters argue that excluding illegally seized evidence is necessary to deter police from conducting illegal searches. According to this deterrence argument, the police won't conduct improper searches if the resulting evidence can't be used to convict the defendant.

Fruit of the poisonous tree doctrine. In addition to being excluded as evidence against the defendant, evidence resulting from an illegal search may not be used to discover other evidence, under a legal rule colorfully known as the "fruit of the poisonous tree" doctrine. The "tree" is the evidence that the police illegally seize in the first place; the "fruit" is the second-generation product of the illegally seized evidence. Both tree and fruit are inadmissible at trial.

Example

Officer Wiley arrests Hy Lowe for selling phony telephone cards. A judge rules that Officer Wiley illegally entered Lowe's home and improperly seized a map showing the location where Lowe hid the phone cards. Officer Wiley then found the phone cards in that location. Because Officer Wiley obtained the map through an illegal search, the phone cards are the fruit of that unlawful search and are therefore inadmissible into evidence.

Some defendants believe that if they can show that a search was illegal, the case must be dismissed. Not true. If a prosecutor has enough other evidence to prove the defendant guilty, the case can continue. Also, the illegally-seized evidence can be:

• considered by a judge when deciding on an appropriate sentence following conviction
• admitted in civil cases and deportation cases, and
• in some circumstances, be used by a prosecutor to impeach (attack the credibility of) a witness who testifies in the trial.

To learn more about search and seizure law, get The Criminal Law Handbook: Know Your Rights, Survive the System, by Paul Bergman (Nolo).

Reprinted with permission from the publisher, Nolo, Copyright 2008, http://www.nolo.com

QUESTION:

My daughter was arrested for underage drinking and a curfew violation, but her rights were never read to her. She was handcuffed, fingerprinted and given a breath test, which she failed. Does she have any legal rights when she faces the judge?

ANSWER:

In most states, underage drinking and curfew violations are classified as status offenses. That means that if an adult committed these acts they would not be considered illegal, but they are strictly verboten for whippersnappers. Sounds like your daughter committed a status offense. In the eyes of the law, minors who are accused of status offenses are entitled to some, but not all, of the protections given to adult criminal defendants.

The police are generally allowed to take a minor into custody if they have reasonable cause to believe the minor needs supervision, has violated a court order, or is in public and appears to need medical attention. It's a permissible formality to fingerprint a minor who has been taken in this way.

But the fact that your daughter's rights -- commonly referred to as Miranda Warnings -- were never read to her may be a problem for the prosecution. In some states, status offenders may not be forced to incriminate themselves and must have the Miranda warnings read to them before the police can question them. But this is often true only if the minor faces the possibility of detention. You'll have to check your own state law using Nolo's online legal Statutes and Cases.

If your state law protects status offenders in this way, then any damaging statements your daughter gave to the police -- and any evidence the police uncovered as a result of those statements -- may not be considered by the juvenile court judge who decides her case.

Learn more about Search, Seizure, and Interrogations.

Reprinted with permission from the publisher, Nolo, Copyright 2008, http://www.nolo.com/

Learn about who is eligible to be tried in juvenile court and what to expect in that court.

"Juvenile justice" is an umbrella term for the special procedures set up by every state to deal with young people whose cases belong in juvenile court. Juvenile courts handle most of the cases in which young people (usually called "juveniles" or "minors") are accused of committing crimes.

Eligibility for Juvenile Court

There is no set age by which a child is accountable in the juvenile court system. In general, a child under seven years of age is considered too young, while a child 14 or older is considered accountable for their crimes, either in juvenile or adult court. Children between the ages of seven and 14 occupy a middle ground, and prosecutors must demonstrate that the accused child is capable of forming the guilty mind required to be accountable in the juvenile court system.

Of course, the treatment of juveniles differs from state to state, judge to judge, cop to cop. And if differences of opinion generally exist about "getting tough on crime," the conflicting opinions on how to deal with minors accused of crimes are greater still.

Not every young person who commits an offense ends up in juvenile court. A police officer who suspects that a minor has committed a crime may:

• detain and warn the minor against further violations, and then let the minor go free
• detain and warn the minor against further violations, but hold the minor until a parent or guardian comes for the minor, or
• place the minor in custody and refer the case to a juvenile court.

Informal v. Formal Charges

If the police refer a case to the juvenile court, a prosecutor or a juvenile court "intake" officer (often a probation officer) must then decide whether to:

• dismiss the matter
• handle the matter informally, or
• "petition" the matter by filing formal charges.

In some localities, the probation officer makes only a preliminary assessment of whether to file formal charges, and leaves the final decision to a prosecutor. (For more information, see Avoiding Formal Charges, below.)

Informal Charges

A decision to proceed informally often means that the minor must appear before a probation officer or a judge. The minor may receive a stern lecture, and may also be required to attend counseling sessions or after-school classes, repay the victim for damaged property or pay a fine, perform community service work, or go on probation. If the intake officer suspects that a minor taken into custody has been abused or neglected, the officer may also initiate proceedings to remove the minor from the custody of his or her parents or guardians.

Formal Charges

If the intake officer decides to proceed formally, the officer files a petition and the case is placed on the juvenile court's calendar. At that point juvenile cases typically flow through the juvenile justice system in this manner:

• The minor is arraigned (formally charged) before a juvenile court judge or referee. At this point, the juvenile court either takes jurisdiction of the case or, if the crime or the juvenile's personal characteristics indicate that the case should be handled in regular court, the judge sets the case for a "fitness hearing."
• At the hearing, the judge will determine whether the minor should be tried as a juvenile or as an adult in regular court. As younger and younger minors commit ever more violent crimes, these fitness hearings are becoming more common.
• If the case remains in juvenile court, the minor either enters into a plea agreement or faces trial (often called an "adjudication").
• If, after trial, the juvenile court judge "sustains the petition" (concludes that the charges are true), the judge decides on an appropriate sentence (usually referred to as a disposition).
• Post-disposition hearings may occur. For example, a judge's disposition order may require a minor to appear in court periodically so that the judge can monitor the minor's behavior.

Avoiding Formal Charges in Juvenile Court

Intake officers consider a list of factors, both official and "off the record," when deciding whether to formally charge a juvenile with a crime. First, the official list:

• The severity of the offense. A serious crime is more likely to result in the filing of a petition than a less serious crime.
• The minor's age. Petitions are more likely to be filed in cases involving older children.
• The minor's past record. Formal charges are more likely when a minor has been previously involved with juvenile court.
• The strength of the evidence that the minor committed a crime. Stronger evidence leads to a greater likelihood of formal charges.
• The minor's gender. Formal charges are more likely to be filed against boys than against girls.
• The minor's social history. Petitions are more likely to be filed when children have a history of problems at home or at school.
• The parent or guardian's apparent ability to control the minor. The greater the lack of parental control, the more likely the intake officer is to file a petition.

In addition to these official reasons, the filing decisions of many intake officers cannot help but be swayed by a number of subjective factors. These may include:

• The minor's attitude. Formal proceedings are less likely when a child shows remorse for committing a crime.
• The minor's manner of dress. If the young person dresses well, is neatly groomed, and is polite, intake personnel are more likely to handle the case informally.
• Whether the minor has family or community support. The more support the young person has, the more likely the intake officer is to deal with the case informally.
• Whether the minor has an attorney. Disposing of a case informally may be less likely when a child has a lawyer.
• Ethnicity and socio-economic status. Statistics suggest (though few, if any, intake officers would admit) that the ethnicity and socio-economic status of minors often affects how aggressively their cases are handled.

For information on criminal cases, from start to finish, get The Criminal Law Handbook: Know Your Rights, Survive the System, by attorneys Paul Bergman and Sara J. Berman-Barrett (Nolo).

Reprinted with permission from the publisher, Nolo, Copyright 2008, http://www.nolo.com