回複：我第一次學法律的課，這個case不知道警察那裏錯了，謝謝大家幫

Is it a criminal procedure question or substantive law question?

I barely remember that at a traffic check, the police can not search your car without warrant, even if he reasonably believes that you were doing something wrong. Don't quote me on that. I could be wrong.

On the substantive side, there are at least three points I would argue on behlaf of the defendant:

1. Police can effect an arrest of a felony or a misdemeanor of breaching public peace type offense that is committed in his presence, without warrant. Or, he can effect an arrest without warrant, of a felony committed not in his presence, if he reasonably believes that the a felony has been committed and the person arretsed was the felon. Here, there is no proof that a felony was committed. Even though possession of narcotics is a three degree felony in most modern penal codes, courts often split on the definition of possession. Constructive possession of narcotics can not be inferred from some vials with hash oil on the car mat. The car could be borrowed a day ago. There is no proof the defendant actually possessd the narcotics, let go that it may not narcotics at all. The fact that there is no impairment on the defendant side actually negatives this inference since at least he did not inhale anything. On the other hands, other courts will say that the car is in the defendant's exclusive control and constructive possession is established.

2. The subjective motive of the officer is traffic check, his effecting an arrest on the defendant is based on his investigative subjective that the defendant might possess narcotics. The arrest is illegal. In 1998, a police officer in Arkansas was cruising on the highway when he spotted a former narcotic informant of his driving by in a Bronco. At the routine traffic stop, the defendant was arrested for possession of methamphetamine, which was found in the car when the officer search the car. The defendant was convicted in the lower court and the Arkansas Supreme Court reversed the conviction based on that the arrest was illegal under 4th Amendment of the US Constitution because but for the officer's suspicion that he possessed methamphetamine he would not be arrested for other offenses. Even though later the US Supreme Court reversed this conviction, the Arkansas attorney general still reached the same conclusion that the arrest was illegal, after careful consideration of the Arkansas Constitution, which is similar the US Constitution.
3. Self-incriminal statement by the defendant, is a violation of the 5th Amendment of the US Constitution.

Hope this helps.

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• thanks sooooooo much~~~~~~~ -小臭豬- ♀ (0 bytes) () 02/02/2006 postreply 13:46:28