The District Attorney appealed the case to the District Court. Attorney Arabia conducted research, drafted a persuasive response, and prepared to argue the case in court. He applied the law (particularly the Nevada Supreme Court's decision in Howe v. State) to the facts and persuaded the judge that 1) the alleged smell of marijuana did not give the police the right to enter the residence without permission or a search warrant; 2) police concerns about possible destruction of evidence (the marijuana) did not justify the invasion of the home; and 3) the police did not obtain consent because when "consent" is obtained by an armed police officer who is threatening to break the door down, the "consent" is not freely given. Based on the law and the Constitutions of the United States and Nevada, the judge upheld the lower court and threw out the case. Here are attorney Arabia's written response and the court's decision:
At the preliminary hearing, attorney Chris Arabia successfully argued that the police lacked probable cause, that they conducted a search prior to obtaining a warrant, that the police's threat of a violent break-in was improper, that there was no consent to enter or search, and that the police's lack of follow-up on the "welfare check" showed that the "welfare check" justification was bogus. The Justice Court declined to bind the case over to the District Court proceedings and discharged the defendant. Here is the preliminary hearing transcript:
Whether your case is in the Justice Court (sometimes Municipal Court), the District Court, or the Family Court, you will need a lawyer with the skill, courage, and determination to look at the facts, apply the law, develop a good strategy, and effectively use the strategy to protect you. For a good example of this, please keep reading:
Claiming that they were doing a "welfare check" on a mother and baby, the police went to the defendant's residence. They claimed to smell marijuana and then quickly threatened to kick the door down. Faced with that threat, the defendant opened the door. The police forcibly removed everyone from the place, and then one of them went back inside.
After the deputy came back out, the police obtained a search warrant. They searched the residence and allegedly recovered approximately 2.5 ounces of marijuana. They never followed up on the so-called "welfare check" that they claim justified their trip to the residence, but they charged the defendant with felony possession of marijuana with intent to sell and felony child abuse.
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