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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16090
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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my stepson had a party attended by approximately 75 kids ages

Customer Question

my stepson had a party attended by approximately 75 kids ages 14-19. my wife and I were present and checked on the kids every 45-60 mins. At 2330 hours I went to the basement and told everyone to wrap it up and clean up. My wife and I went up 2 floors to our bedroom to get ready for bed. As I was going back downstairs (midnight) to run all out who were not spending the night the phone rang. The police were notifying me they were in my yard. When I went downstairs the house was quiet and all lights were off. Most of the kids were huddled in 2 stairwells saying the police were walking around trying the doors and shining flashlights in the house. The police then forced a lock on a sunroom door and entered my house. I asked what they were there for and was told "to assess any ongoing criminal activity". I asked them to leave on 2 different occasions and was ignored. They divided the kids in to 2 groups (18 and above and all others) and proceeded to administer alcohol tests. The police report indicates no alcohol was present in my house but most of the kids were minimally positive. 2 kids were drunk and were sent to the local hospital. I was arrested for contributing to the delinquency of minors. The excuse given for entering my house was there was a drunk kid on the back porch of my house. I was additionally forced to take the police throughout my entire house looking for any kids who might be hiding. The charges are currently pending. I have representation for the criminal complaint. I believe I have a civil suit against the police for 4th amendment violations. Do I? What amounts would normally be awarded? I had to replace the door and pay to clean and repair several areas damaged by the police.
Submitted: 3 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 3 years ago.
Jacustomer,

You certainly have 4th Amendment issues here, but while the criminal charges are pending against you, it's too early to think in terms of a civil suit against the police. If, for example, you plead guilty to something on your criminal case just to get it out of the way, you are waiving your right to challenge the evidence against you in criminal court, and at the same time admitting guilt and essentially conceding the search issue. That could severely undercut a civil suit. You can't say that the police activity is justified in one courthouse while attacking the same behavior in another.

In order for police to enter your house and effect a search and seizure, the 4th Amendment requires that the police have probable cause and a warrant or an exception to the warrant requirement. That said, however, there is no bright line test as to what's Constitutional, pretty as the 4th Amendment looks on paper. The US Supreme Court has stated that determinations of whether the police have overstepped their authority must get made on a case-by-case basis. The standard is what a reasonable police officer would do under all of the circumstances.

When a defendant has been arrested, his lawyer can file motions asking for pre-trial hearings that are designed to challenge improper police conduct. In a suppression hearing of this sort, the prosecutor would put the officer on the stand and get him to discuss the incident for which you were arrested and its search and seizure issues. His questions would attempt to elicit information that would show that everything the police did that night was reasonable. When the state has no more questions, the defense lawyer cross-examines in an effort to show that what went on was actually quite UNreasonable. Then, each side would be able to sum up very briefly, pointing out the testimony that supports their theory. The judge rules upon the evidence in which, all too frequently the state prevails. Courts give a great deal of deference to the judgment calls of police in the line of duty though, these hearings can be won.

The issues involved in your matter are as follows. In the first place, the police need probable cause to investigate a matter. Probable cause does not require much evidence. All it requires is a reasonable belief that criminal activity may be going on and that it may be going on inside a home. In your specific matter, the police will say that the presence of what appeared to be a drunken boy on your back porch gave them the probable cause to want to search your premises.

From there, unless you consented to their entry, which it appears you did not, the police would need a warrant or an exception to the warrant requirement to get into your home. Warrants take a great deal of time to issue. The police have to make a sworn statement to a judge, who then, if he finds that the statement is enough to provide probable cause, will sign off on the warrant. After court hours, that can be very problematic for the police, as paperwork must be typed up and prepared, a judge has to be summoned from somewhere along with a court reporter to memorialize the proceedings, and so forth. So one of the exceptions to the warrant requirement is called "exigent circumstances" That's when the police don't have the time to get a warrant because to wait would cause either the suspects to get away or the evidence to be destroyed. I imagine that it is that exception the police will use to justify their behavior, and it potentially could fly.

So it's good that you have a criminal lawyer already working on your case. If he is a private attorney and also tries civil cases, you'll want to have his theory on whether you'll ultimately be able to recover for the damage to your property. If you did have an attorney experienced in both venues, that would be ideal, because as he was working on one case, he'd also be paying attention to how his work would be impacting on the other.

Edited by FranL on 8/1/2010 at 7:20 PM EST

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