ID Theft - Questions for DAs/Cops/defense attorneys?

Questions for DAs/Cops/defense attorneys?

my worthless brother- gets stopped by cop for no front plate and rear plate "coming back no record". doesn't have drivers license-he's suspended, no insurance and the car isn't registered with the plate is from his buds wrecked car cop doesn't write a ticket or arrest him but asks him for consent to search-he's gives it and the cops searches. in the car (i think in glove box or center console) cop finds lists of credit card numbers and the security codes (from the back of the card) than my brother stole from his work. cop then arrests him and charges him with ID Theft and the traffic violations. later finds out the card numbers had been used fradulently by my bro. my parents are paying a lawyer for my bro and this lawyer is telling them that the cops search was illegal because my brother "wasn't free to leave the traffic stop" when he gave consent to search so it wasn't really consent...does this make sense? me, will he get off or not? He's on meth and needs jail time. thanks to every1 who have answered-this is in colorado. there is a "motions" hearing next month-the lawyer is filing to dismiss the ID Theft charge by saying the search was not consensual..and that as the cop had bro's ID and stuff he wasn't free to say no to the cop. the da offered my brother a plea, but he refused it because it would be for 3 years in prison. the lawyer has really got my parents hopes up, which is stupid. my brother has been on meth for 4 years now (he's 28) and has been arrested several times and in/out jail for a long time. we have locks on our bedroom doors to stop him stealing from my parents and from me and my little sister

Public Comments

he gave consent. it was legal
I agree sounds like your bro needs it. Why would your brother be free to leave the traffic stop? Just because he didn't get arrested before consenting to a search doesn't mean he is less guilty. Doesn't make sense to me either. I hope he gets what is coming to him but I also hope that you remember you are his bro and he is still in there somewhere no matter how deep you are going to have to dig!
The lawyer needs to be able to define , " wasn't free to leave the traffic stop." At any point in the traffic stop, I can ask to search the vehicle...however, once the person tells me no, then he is free to leave the traffic stop. Your brother gave the officer permission to search the car, so it's legal. What state do you live in?
He gave consent. The defense is doing exactly what he supposed to do, use a credible defense. This is a sad situation because your parents are burdened with the cost. A probable cause hearing will be held, and at that time the judge will determine whether or not the search was valid. At that point, depending on your brother’s record, if the search was valid, he may be offered a plea deal. In NY this is Grand Larceny, and again the compound of your brothers past may or may not come back to haunt him. I wish your parents the best.
He consented to the search. anything the officer found in that search, he can be charged with.
Your lawyer needs to review his criminal procedure textbooks. When consenting to a search, the consent must be voluntary. Being in custody, or not free to leave, as your lawyer calls it, is one factor that tends to show that the consent was not really "voluntary." However, the courts will use a totality of the circumstances analysis to determine if a consent was voluntary. There is no single factor that automatically makes consent involuntary. This has been true since a case called Schneckloth v. Bustamonte (1973) was decided. Sorry to say, but I guarantee that there is no judge in the country that will rule that a consent was "involuntary" simply because the person giving consent was pulled over for a traffic violation at the time. In fact, there are court cases that specifically found that being in custody, in and of itself, is never sufficient to find that a consent was involuntary. (U.S. v. Barnett, for example) In short, unless there's more to your story, it is my opinion that your lawyer is wasting time and money with this motion, and giving your brother false hopes.
What the defense lawyer is trying to show is that the consent your brother gave was not voluntary. Courts typically use 4 factors to determine this- 1-whether your brother was informed of his right to refuse consent 2-whether your brother was in custody, and the length and manner of the custody. 3-Conduct of the officer (did he threaten your brother, make promises etc to get the consent. 4-If your brother has any inherent characteristics (youth, learning disabled, under the influence etc) that would affect his ability to freely give consent. the court will look at the totality of the circumstances and not disqualify the consent only based on one factor. From your question I assume the lawyers is shooting for the custody angle...but can't offer an accurate determination. Good luck.
as a parent it is so hard to let one of our children (regardless of age) get punished...some parents literally are in more denial then the actual drug user and as much as they truly love their child they are an enabler of their addiction...they do it in love thinking if they can get them out of this mess then just maybe they will have learned their lesson and they won't continue with their habit...and that is when tough love has to come to surface...as hard as it is to let your son or daughter fall to rock bottom we usually have to allow them to reach that point ....especially something as addicting as meth...one thing for sure ...his drug use will come to an end...a dead end that is.....either recovery, prision or worse....sometimes a person has to be subject to rock bottom before they can come to terms and seek help....and sadly no one can do it for them....even a parent who loves them more then they can even imagine....addiction destroys lives...not just the lives of the person addicted but the ones that love and care for them....wishing a recovery for your family...with all that said...one of the most important things love ones can do to help is love them unconditionally....but not enable them...that is a very fine line to walk.