Federal Defense Attorney John Teakell

The Fourth Amendment to the United States Constitution is perhaps one of the most frequently litigated constitutional amendments in the courts. The purpose of the Fourth Amendment is to protect “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The right to be free from unreasonable searches and seizures is a right guaranteed to every American citizen. The point of this right is to limit the government from unnecessary intrusions into your rights as a free citizen.

An unreasonable search and seizure issue most often arises when law enforcement searches a car after a traffic stop. The question then becomes whether the officers had reasonable suspicion to stop the car in the first place and/or probable cause to search the vehicle. If the police have seized property obtained through an illegal vehicle search, the seizure of the property is considered unreasonable.

An unreasonable search and seizure can also occur when law enforcement seeks to search a person’s home. In order for a search to be valid, the police must first obtain a warrant, which is supported by probable cause, and describes the place to be searched with particularity. If these requirements are not met, the defendant can petition the court to exclude the evidence at trial. The court will then determine if the police conformed to the requirements of the Fourth Amendment when obtaining the warrant and can order that the evidence not be allowed in trial under the exclusionary rule.

If the police search someone’s property without a warrant, the search is considered unreasonable unless exigent circumstances existed at the time of the search. The burden is then placed on the prosecution to prove that the police believed that there was an imminent danger that required an immediate search. Examples of such danger include, gunshots, a person screaming, or fire emanating from inside a building. Courts have also held that destruction of physical evidence can provide the police justification to search property in order to prevent its destruction. If any of these reasons exist then the Fourth Amendment’s warrant requirement is not violated.

If you believe that you are the victim of an unconstitutional search then it is imperative you contact an attorney.

Entrapment is the act of a law enforcement agent inducing a person to commit an offense, which the person would not have, or was unlikely to have, otherwise committed. An entrapment defense generally requires the defendant to prove that he never would have committed the crime absent the police trapping him. At the same time, the government will attempt to show that the defendant was predisposed to committing such a crime so as to negate the entrapment defense.

If the government is able to show that the defendant readily and quickly responded to a single invitation, then they may be able to establish that the defendant was inclined to committing the crime on their own. However, even if the defendant was predisposed to committing the crime the government may still be required to prove it was not the law enforcement’s suggestive nature that caused crime to be committed.

As an affirmative defense, a defendant who is claiming that he was entrapped is stating that he did in fact commit the crime for which he is being accused. What the defendant is suggesting is that he should be excused from criminal liability, because absent being lured to the crime or enticement to engage in the criminal activity, he never would have committed the offense. Federal law provides that a defendant can both plead not guilty to the act of the crime and claim an affirmative defense of entrapment. However, both defenses are seldom asserted simultaneously.

Generally, entrapment is most commonly asserted as a defense in sting operations. For example, in the case of a drug sting if the police put pressure upon a person to sell drugs who initially refuses, but is persuaded to do so, then they could be seen as entrapping that individual. In the process of such operations, the police often engage in the same so-called crimes as the target suspect in order to gain the trust of the individual. Sometimes this conduct may be unethical and rise to the level of entrapment.

There are certain limitations, however, on when a defendant may raise an entrapment defense. Serious criminal charges such as homicide or felony murder can never be a defense to entrapment. In addition, if a defendant has a criminal history he may have a difficult time proving an entrapment defense because the government will attempt to introduce evidence of the prior convictions. If the prosecution can demonstrate a previous history of similar crimes then it becomes extremely difficult to prove entrapment.

The circumstances under which an entrapment defense may be employed are fairly specific, but an attorney familiar with an understanding of entrapment defenses may be able to give you more information regarding a particular situation.

A felony is more serious than a misdemeanor offense and is generally a crime punishable by more than a year in prison. Some common felonies include aggravated assault and/or battery, arson, burglary, embezzlement, grand theft, treason, espionage, racketeering, robbery, murder, rape, kidnapping, and fraud. Felonies have a wide range of punishment from probation, to imprisonment, to execution for the more serious crimes. In the United States, convicted felons also lose their right to vote, are excluded from certain types of jobs and obtaining certain licenses, exclusion from purchasing and possession of firearms, ammunition and body armor, and the ineligibility to run for or be elected to a public office.

Similar to misdemeanor offenses, there are different levels felonies and each carries a different degree of punishment. The lowest being a state jail felony and the highest a Capital Felony.

Types of Felonies

What is a State Jail Felony?

Common state jail felonies include credit card abuse, unauthorized use of a motor vehicle and reckless injury to a child. State jail felonies typically include a punishment of confinement for a term in a state jail from 180 days to two years and an optional fine not to exceed $10,000.

What is a Third Degree Felony?

Common third degree felonies include a third DWI (drunk driving) charge, indecency with a child, kidnapping, and possession of a firearm by a felon. The punishment usually consists of confinement for a term from two to 10 years in prison and an optional fine not to exceed $10,000.

What is a Second Degree Felony?

The punishment for a second degree felony consists of confinement for a term from two to 20 years in prison and an optional fine not to exceed $10,000. Common second degree felonies include aggravated assault, aggravated kidnapping if the victim is released unharmed, arson, robbery, and sexual assault.

What is a First Degree Felony?

The punishment for a first degree felony consists of confinement for life or a term from five to 99 years in prison and an optional fine not to exceed $10,000. Common first degree felonies include murder, aggravated kidnapping, robbery, and sexual assault.

What is a Capital Felony?

This is the most severe and serious of all felony convictions. Murder that is committed during the act of another felony such as kidnapping, rape or robbery, qualified for the capital felony charge. Punishment for a capital felony is prison for life or the death penalty. If the State decides not to seek the death penalty, an automatic life sentence is imposed upon the conviction. If the State seeks the death penalty, the jury must answer questions that will either result in a sentence of life in prison or the death sentence.

A misdemeanor is a “lesser” criminal act, carrying a less severe punishment than felonies but are more serious than regulatory offenses. Misdemeanors in the United States general have a maximum punishment of 12 months in jail, typically the local jail. Some common misdemeanors include, petty theft, prostitution, public intoxication, simple assault, disorderly conduct, trespassing and vandalism. In addition to full jail time, misdemeanor punishments include probation, community service or part-time imprisonment served on the weekends.

There are several different classes o misdemeanors that carry their own severity of punishment. The lowest level is a Class B Misdemeanor and the highest level is a Class A Misdemeanor that carries a more severe punishment.

Classes of Misdemeanor Offenses

What is a Class B Misdemeanor?

Common Class B Misdemeanor charges include one DWI charge, a criminal trespassing charge, theft by check from $50 to $500, and evading arrest or detention. The punishment of a Class B Misdemeanor typically consists of confinement for a term of up to one year in the county jail and/or a fine not to exceed $2,000.

What is a Class A Misdemeanor?

The punishment of a Class A Misdemeanor typically consists of confinement to the county jail for a term of up to one year and/or a fine not to exceed $4,000. Some common Class A Misdemeanor crimes include a second DWI (Driving While Intoxicated) charge, an assault charge, the burglary of a vehicle, and the unlawful carrying of a weapon.

When you are arrested you will most likely have the choice to either make a bond to be released or if you are unable to will remain in jail while your case is pending. In order to make a bond, you must have money to secure your release and have no holds, like an unpaid traffic ticket.

If you are free on bond, you will need to hire an attorney as soon as possible. Talk to people you know and ask if they know of any attorneys. Internet searches, like using Google, can also provide a large selection of attorneys in your area who deal with your type of case. If you are unable to afford an attorney, the court will appoint one to your case.

Likewise, if you remain in jail you may hire your own attorney. If you cannot made a bond and are indigent, the court will appoint a lawyer to your case within 24 hours. The lawyer will then contact you within 72 hours after the police file a case against you.

What If You Are Not a U.S. Citizen? In most situations, the Immigration and Naturalization Service will place a hold on you that will keep you in jail for the time being (even if you are able to make a bond). In this case, you should find an attorney who specializes in cases with immigration issues because your criminal case will directly affect your ability to reside in the United States.