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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
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Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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can an officer come to a home for parking defraction observe

Resolved Question:

can an officer come to a home for parking defraction observe pipes on coffee table call for back up then bust unlocked door open without search warrant. (state of alabama) then search home and arest one on paraphanelia charges and marajuana possession charges. what were there rights to come onto my porch in the first place.

on what basis are legal smoking devices in plain view through small window probability to come in.?
Why did they not just ticket car? The week before they ticked friends car.
Submitted: 4 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 4 years ago.
Jacustomer,

In order to search a private residence, police need either a warrant or an exception to the warrant requirement.

That said, 4th Amendment law is very complicated. The rights we have to be free from unreasonable search and seizure are not nearly as black and white as they look in the Constitution. The US Supreme Court has ruled that decisions on whether police have overstepped their authority and violated someone's Constitutional rights are determined at suppression hearings on a case-by-case basis. The test the court will apply at such hearings is what a reasonable police officer will do under all the circumstances. So even though you believe that the police were very incorrect here, and even if proves later to be true, the case is not going to be dismissed right out of the box because of this search.

However, if you decide to fight his case rather than take any kind of deal, and your lawyer will be able to file a motion asking for a hearing to suppress the evidence in your case as the result of an unlawful search, and it should be granted. are granted. What happens is that the prosecutor will call the police officer to the stand and will question him as to what he did in your case. He will ask him to explain and to discuss the search, the arrest, any post-arrest questioning, and so on, to try to show that everything the police said and did was reasonable under all of the circumstances.

I don't have many facts, but reading between the lines, the police officer would likely testify that the door was initially opened on consent (exception to the warrant requirement) but that after he spotted illegal drugs and parapheranalia in plain view, he had probable cause to make an arrest and to search the premises for further contraband. He is likely to also talk about exigent circumstances (emergency circumstances), another exception to the warrant requirement that allows the police to act quickly without a warrant to prevent the destruction of evidence or the flight of a defendant. And thus, he will try to show that everything he did was reasonable under all fo the circumstances.

When the prosecutor is finished, your lawyer would be able to cross-examine the police officer to try to show just how the police abused their authority, how they broke down the door, how they tore apart the house, how and why they could have gotten a warrant, whas well as question them about anything else your lawyer believes may have been improper. He would try to show there would would be no risk of losing either the defendant or the evidence by waiting for the warrant and that the police were unreasonable.

After both sides have finished getting all the evidence out there, the prosecutor and the defense attorney will each get an opportunity to argue their point of view before the judge, drawing support from the testimony that came out at the hearing. After that, the judge will make his ruling.

If the judge rules that police actions were reasonable under the circumstances, the evidence would be allowed to be used against you at trial. If, on the other hand, the judge rules that the police violated some or all of your rights, evidence seized as a result of those violations which would not have been inevitably discovered anyway would have to be suppressed. If the drugs and paraphernalia got suppressed, obviously your whole case would have to be dismissed.

There are two other things that you shouldbe told about suppression hearings The first is that these hearings are very difficult to win. Judges give a lot of deference to the judgment calls of police out in the field and usually -- though certainly not always -- they will find their actions reasonable. The second is that generally these hearings aren't available until the end of the case, right before a jury would get selected. By then, any favorable deal the prosecutor has proposed is usually off of the table. This is important to keep in mind, because if the evidence does not get suppressed, and the drugs and paraphernalia were out in plain view and witnessed by your arresting officer, you would not have a very strong trial case. Your lawyer would be able to advise you of your trial chances early enough in the case for you to decide whether to move the case to hearings and trial or take advantage of a favorable plea bargain.

___________

If I've helped, please click the green Accept button so I can get credit for my work.

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.



Customer: replied 4 years ago.
if what they viewed in plain site are legally sold. smoking devices. should they have obtained warrant before coming in .

These devices were used for marajauna but from outside they could not decipeher this.
Expert:  Zoey_ JD replied 4 years ago.
My answer in general doesn't change, because you will still have to have a hearing, and what's reasonable or unreasonable is something that only the judge will be able to decide, as he will hear both sides of the evidence.

However, that said, many items used for drugs are also common household items used for perfectly legitimate purposes. So if the police officer did testify and say that he saw contraband in plain view, it would be up to your lawyer on cross-examination to try to get him to say that there was nothing at all special about what he could have seen except normal items he could see in any household. If that happened (and also if the officer doesn't say that the house smelled of marijuana) you would certainly have a better shot at winning the hearing.

___________

If I've helped, please click the green Accept button so I can get credit for my work.

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.



Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 17391
Experience: Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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