“My cousin has found himself in a bad situation and I think he's in danger of going to jail. He and some friends were pulled over late night a few weekends ago after coming from a party. My cousin was seated in the back and was just getting a ride home. When the police stopped them, one claimed to smell weed and had a dog come circle the car. Apparently, the dog smelled something and everyone in the car was arrested together. After the arrest, the cops found a pound of weed under one of the seats and a gun in the trunk. My cousin knew nothing of either of these items being there but is now facing charges with everyone else. The driver retained a very expensive criminal defense attorney, and told everyone in the car that his lawyer would represent them, too. Now, he's saying that my cousin will have to get his own attorney. I have so many questions including whether the police can use dogs like that and is that reliable? Also, do you think the attorney is doing something shady? Thanks much for this column. My family is pretty shaken up and we don't know what to expect out of this mess.”
–Missy F., Brooklyn, NY
This presents a host of issues but the biggest one I see, off top, is that you must be careful about who gets in your car and whose car you get in. I can’t tell you how many times I’ve seen someone get caught up because they were riding in the wrong car or had the wrong person riding with them, unbeknownst to them. The thing that you have to be aware of is if some form of contraband is in a vehicle, and it is not found expressly within the possession of any one passenger, absent someone stepping up and admitting that the illegal item is theirs, police can—and will—charge everyone in the car with possession of the items. This is true even for items found in the trunk. Police know that the item(s) usually belong to only one person in the vehicle but the strategy of charging everyone in the car, is to get a confession from the other passengers to help law enforcement determine who is really the guilty party.
Now, as Shawn Carter so eloquently depicted in verse 2 of “99 Problems,” law enforcement will often use the K-9 unit and bring dogs to circle a vehicle in order to uncover illegal items such as drugs, which may be stashed inside the car. This is an extension of what is commonly referred to as the “plain view” doctrine of search and seizure law which allows police to recover items which are discovered during a warrantless search because the items were in the officer’s plain sight. If a canine uncovers the scent of contraband, then that gives rise for probable cause which would then allow the officers to effectuate an arrest. They can then voucher the vehicle as evidence and conduct what is known as an inventory search of the vehicle. This is a common tactic that law enforcement will use to get around a search warrant with respect to a vehicle. In this case, that’s what enabled the search because of the marijuana and likely what enabled the recovery of the firearm.
Finally, there is the issue of representation. As I indicated in the first paragraph, it’s common that police will arrest all passengers together in order to get statements from everyone with the hope that everyone will implicate one individual as the guilty party. The problem here, as it relates to representation, is there’s no honor amongst thieves. If ever passenger’s statement implicates a different person, a trial would basically become a free for all of throwing each other under the bus (you didn’t really think that the guilty party would just step up and do the right thing to take the rap, did you ?). A lawyer who would even try to represent two—let alone an entire car load of defendants—in the same case would have too many conflict of interest issues and would likely refuse. A lot of people got upset with Diddy for having a different lawyer than Shyne when the whole shoot up the club fiasco happened years ago. Still, those folks have no understanding about the criminal justice system. Even for those defendants who, unwisely, are willing to sign a conflict acknowledgement and waiver to allow the dual representation, it is strongly unadvised and most lawyers would not agree to that sort of representation. So, in short, while the driver may have had good intentions, it should not come as a surprise that he is now unable to have his attorney represent your cousin, too.
Depending on whether you cousin is a minor, or indigent, he may qualify for court-appointed legal counsel. While perhaps not as individualized as the attention that private retained counsel can give to a case, they should not be discounted. Oftentimes, these attorneys are more acquainted with the judges and with the prosecutors because they work with them more frequently. These relationships can sometimes result in a more favorable outcome for a defendant than one from a private counsel who does not regularly practice in certain courts. In any event, I hope things work out and BE CAREFUL OF WHO YOU GET IN A CAR WITH!
Nothing in this column should be construed as legal advice, and is offered as information only. Readers are advised to consult an attorney with knowledge of the specific state laws within their local jurisdictions.
Charles F. Coleman Jr. is a former Kings County (Brooklyn), NY prosecutor and presently functions as a federal trial attorney specializing in civil rights and employment discrimination. Follow him on Twitter @CFColemanJr.