San Antonio Illegal Searches and Seizures

Interviewer: What can you tell us about illegal search and seizure, and illegal warrants?

Gary Churak: The Fourth Amendment has been emasculated so much through the years by judicial opinions, that your Fourth Amendment rights are very limited. I mean, you get pulled over for a traffic stop, any probably cause, they’ve got a right to search your vehicle. Any suspicions, if the cops say you looked suspicious in the vehicle fidgeting, then they had the right to search your vehicle.

I see it all the time where they stake out a distribution house, or drug house, and somebody drives away with a vehicle. They pull the vehicle over down the street and say they were going too fast or had no tail light, and then they search it. The cops know absolutely well that there are drugs in the vehicle because it just left that house.

Search and seizures motions are used to try and suppress evidence when there has been an illegal search or seizure. It is really, really rare that they are ever granted by courts nowadays because of issues with probable cause. Unless it’s illegality is just so blatant.  Unless a cop comes into your house, without any issue or anything, and sees a marijuana pipe on the front of the desk, and makes an arrest. That would probably be an illegal search and seizure, but that doesn’t happen.

Interviewer: Are police officers aware of this and do you think they will cross the line?

Gary Churak: Police officers cross the line every day.

Interviewer: Wow.

Gary Churak: They lie to make arrests. They create probable cause. It’s the nature of the beast. In their opinion, they are getting the bad guy off the street, so the ends justify the means.

Interviewer: How does that help a client?

Gary Churak: It doesn’t. I mean, it doesn’t help a client if a cop gets up there and lies. That is detrimental to the client.

Interviewer: If you discover something like this has happened, does that help a client’s case?

Gary Churak: Yes, that would definitely lead to suppression of the evidence. That is something that would be very beneficial to the client. We can establish that the cop has no probable cause and fabricated the story.

Drug Paraphernalia

Interviewer: Now, let’s say someone gets stopped by a police officer and they don’t find any drugs but they find a spoon, a pipe, or a bong. What happens in that case?

Gary Churak: They can file on what’s called a Class C Misdemeanor, possession of drug paraphernalia. It’s not a jail offense. It’s basically a fine only. It’s considered a drug offense on your record. It’s the same with rolling paper or something like that. It’s drug paraphernalia, they call it. They don’t arrest you. They can arrest you but usually they don’t. It’s just like just getting a traffic ticket.

Options for Possession of Drugs

Interviewer: You mentioned earlier about a therapy program or a rehab program. What are some other options that people have? Is there community service available?

Gary Churak: Yes, usually that is in the conditions of someone’s probation. They require that you do community service, take a rehabilitation class, and drug classes. It’s all part of the probationary system. Sometimes they will actually lock you up in an in-house rehabilitation system, called SAFP or Safe-T. There they literally incarcerate you in a drug rehab facility. Sometimes up to nine months as a condition of probation.

Interviewer: Is that a county thing or state thing?

Gary Churak: There’s a county program and there’s a state program.  The county’s  is called Safe-T and the state’s is called SAFP. They are rehabilitation programs.

Interviewer: Is that mandatory with every probation?

Gary Churak: It’s not mandatory but it is becoming more and more prevalent. If a judge thinks and probation thinks you’ve got a drug problem, then they are going to go ahead and stick you in a rehab.

Pleading Guilty During a Plea Bargain

Interviewer: If they are pleading guilty, are they throwing themselves at the court and giving up? Would that wise for them to do that?

Gary Churak: It happens all the time, it’s called taking a plea bargain agreement. This is when you look at the evidence, you weigh your chances on beating the thing, and then you negotiate with the prosecution to work out a plea bargain agreement. The plea bargain agreement requires you to first enter a plea of no contest or guilty, and then the  state will recommend what you agreed on to the judge.  That happens day in and day out.  Ninety-five percent of cases are probably plea bargained out, instead of going to trial. That not unusual.