A GOOD CASE TO KNOW ABOUT
By Lt. John Garrido
On 2 Nov 08, 25th District officers arrested 2 offenders for drinking on the public way. A custodial search incident to the arrest revealed the offenders to be in possession of fictitious SS cards and fictitious green cards. When Detective Sofrenovic sought the appropriate felony charge, ASA Essig rejected charges, citing "Prosecutorial Discretion"
and "4th Amendment issues" in regard to the arrest.
Being the W/C that day, I contacted her supervisor, ASA Grawth. Aside from the b.s. discretion nonsense, I was more concerned about the 4th Amendment argument. He alleged that when officers make a physical arrest for a charge that is less than a misdemeanor (like drinking on the public way or a traffic citation) and it leads to another charge due to the search, they are actually violating the offender's constitutional rights under the 4th amendment. Believing he was wrong, I went for the over-ride; thank you Commander Welch.
I did a little research and confirmed that not only is he wrong, but there is a recent United States Supreme Court case to support the argument that there is no 4th Amendment Violation; the case couldn't be more on point and it was decided on April 23, 2008. FINDLAW.Com