When police enter a private home for purposes of a search or seizure, they need either a warrant or an exception to the warrant requirement. In order to get a warrant, the police have to have probable cause. Probable cause for an arrest is a reasonable belief that a crime may have been committed and that a particular person may have had something to do with it. Probable cause for a search would be a reasonable belief that a particular address may have evidence of the crime that may have been committed.
In order to get a warrant, formal paperwork must be prepared, and then the police and the paperwork must come before a judge who speaks to the officers and evaluates whether there's probable cause or not. If the judge believes that there is, he signs the warrant. This can be a time consuming procedure, as it involves several people who must be rounded up to make this come together, and it is done in private and with a court reporter who prepares a transcript of the proceedings. As you can imagine, in some situations it would be downright unreasonable to require a delay. So once again, whether the search and seizure of your brother was proper is going to come down to a hearing, which will be decided on the basis of what a reasonable police officer would have done under all of the circumstances.
Since you say there was a warrant, though for the other house, it's fair to say the had the police gone to the judge for a second warrant, it would have almost certainly been granted. But depending on the day and time and circumstances, there may have been no time for the police to do that. Some exceptions to the warrant requirement involve "hot pursuit" (the police spot the suspect. He sees them too and runs into someone else's house other than his own. Police are allowed to chase him without a warrant), exigent circumstances, (to protect the destruction of evidence or the flight of the suspect), if the suspect poses the possibility of a great risk to others, and on in that vein. Once the police apprehend someone, they are allowed to take evidence which is in plain view, and to look for weapons within reasonable reach of the defendant. They would be expected to have a warrant or an exception to the warrant requirement if they went any further with a search than that.
So going back to my first post, if your brother goes to hearing and trial on his case, the prosecutor will call the police officer to the stand and elicit testimony that will suggest that everything the police did was reasonable under all the circumstances. They will try to fit the facts into one of the warrant exceptions. The defense attorney will try to show that if the police could get one warrant, they could certainly go back and get it right, and that there was no emergency or threat that would have prevented that. He will also explore the search, arguing that the police exceeded the scope of a warrantless search and that once the defendant was apprehended, there was surely no reason not to wait for a warrant. Again, after all of the evidence comes out and each side points up the information in its favor the judge will rule.
There are two other things you should be told before I am through here. One is that these hearings are very difficult to win. Judges give a great deal of deference to the judgment calls of police out in the field and are inclined to regard their testimony favorably. The second is that usually hearings are held at the end of the case, in many instances right before a jury gets picked. With serious cases, the best offers that the state will make are usually pre-indictment at the beginning of a case and are off of the table by the time of the hearing.
Your brother will need a lawyer if he doesn't already have one. That lawyer can talk to your brother at length, look over the evidence, speak to the prosecutor and see the discovery and give him an idea of his chances of getting anything suppressed at a hearing, along with the strengths and weakness of his trial case, and the up and down sides of any plea agreement
. That way your brother will be in the best position to choose a course of action, whether it be plea or trial, that he believes is in his best interest.
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This thread will not close and you can always use it to get clarification.This is informational only and is NOT legal advice. There is no attorney-client relationship. You are advised to consult an attorney in your state for specific legal advice.
Edited by FranL on 1/3/2010 at 2:25 AM EST