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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 16328
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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my house had the door broke down because someone said that

Customer Question

my house had the door broke down because someone said that my boyfriend had a gun when he does not and there was no gun found. I am on the lease and he only stay with me occasionally the cops broke down my door and search for a gun but of course did not find one is that legal? Know my boyfriend is in jail for terrest threat.
Submitted: 3 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 3 years ago.
Hello,

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

To get a search warrant they need something called "probable cause." Probable cause is just a reasonable belief that criminal activity may be afoot and that evidence of that activity is likely to turn up in the residence. A tip from a complainant that your boyfriend had been threatening to kill someone, has a gun, and stays at your place, could be enough to get a warrant.

But warrants take time to get. A police officer has to make a sworn statement of his facts before a judge, and it must be on the record as well. So paperwork has to be drawn up, a court reporter and a judge must be found, and, depending on the time of day or night when a situation arises, that might not be either quick or easy.

One of the exceptions to the warrant requirement is something called "exigent (emergency) circumstances." If police have probable cause to believe that a person in a specific location has a firearm that he intends to use unlawfully to harm another, then they don't have to wait for a warrant or take any time to investigate the matter. They can break a door down and make a search.

I cannot, of course, say for sure what information the police actually had before they broke the door down. Nor can I tell you for sure whether they had probable cause when they did. That could be the subject of a pre-trial hearing to challenge the constutionality of the police action, if your boyfriend decides to take the case to trial.

Terrorist Threat in California is defined in Section 422 of the penal code, which states:

"Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing , or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison.

For the purposes of this section, "immediate family" means any spouse whether by marriage or not, parent, child, any person related by consanguinity or affinity within the second degree, or any other person who regularly resides in the household, or who, within the prior six months, regularly resided in the household.

The statute is a "wobbler" meaning it can be prosecuted as either a misdemeanor or a felony. As a felony, it would not only cause your boyfriend to be eligible for a state prison sentence, but a conviction would earn him a strike for purposes of California's three-strike law. It's important to note that the defendant on such a charge does not have to actually intend to carry out the threat. Nor does he actually have to be able to carry out the threat (no gun, so can't shoot, for example). What's important is what he allegedly threatens and whether the threats could reasonably cause the complainant to believe that they could be carried out.

If he does not already have a criminal lawyer, he should retain one if he's able. If he cannot afford one, he should plead not guity on his first court date and ask the court to appoint him a public defender.


Edited by FranL on 10/3/2010 at 7:46 PM EST
Customer: replied 3 years ago.

so basically if there is no gun no phone calls no messages that he would attempt the hurt the person then is it basically his word against my boyfriends? I was also contemplating doing a police report the the cops kicking in the door and searching for something that was not here or does not exist. Do you think that would help or be relivent if i did a polie report?

Expert:  Zoey_ JD replied 3 years ago.
Hi,

No, don't bother doing a police report. When the police are acting within the line of their duty, they can only be sued if they are negligent or are commiting misconduct. Your boyfriend will be able to contest the police conduct as part of the fighting of his case. If he wins a probable cause hearing or if he is acquitted of the charges against him, then you might have a civil cause of action against the police and county for the damages to your property. But if they have the right to search, you have no case. It would also do you no good at all to discuss this matter with the police. You could actually end up harming your boyfriend's case because you don't know what they're looking for, and you don't know what they already know and what your boyfriend may have already told him.

Stay out of this for now. When your boyfriend has a lawyer, you can speak to him about the search if you were home and witnessed the police activities and have any kind of helpful information that you feel the lawyer ought to know.

As for your other question, you're partly right, but don't confuse the standard necessary for an arrest with what the state needs in order to convict. Almost anybody can get someone else arrested. The word of a believable liar, for example, can frequently give police probable cause to make an arrest. Probable cause, requires very little evidence -- just enough to make an officer believe that a particular defendant may be involved in a criminal enterprise.

In order to convict a defendant, however, the DA must prove every element of the statute I gave you in my first post and must prove it beyond a reasonable doubt. So yes, this case may come down to just the words of the complainant but if at trial, the defense can throw doubt as to whether those words were ever said, or written or conveyed electronically (phone, email or text), the defendant should not be convicted of tthe crime.

Edited by FranL on 10/3/2010 at 8:26 PM EST
Customer: replied 3 years ago.
thanks that was helpful...one additonal question while searching the house they took a bottle of norcos (pain killers) that where in a container that was not labeled would they be able to hold that against him.
Expert:  Zoey_ JD replied 3 years ago.
Hi,

They could charge him with that, but as it's not his home but yours and he's not a full time resident of the premises, I don't know that they'd bother. If he hasn't been arraigned yet (brought before the judge and had the charges against him read into the record) you'll find out on his court date.

Do you have a prescription for the drugs? If so, they probably won't bother doing anythng about it. If not, then you'd be at risk of a drug possession charge too.
Customer: replied 3 years ago.

well they were his and he had them from a long time ago he told them that they were his and i think he had a presciption from awhile ago. well his court date is tomorrow so they would read the charge then basically

Expert:  Zoey_ JD replied 3 years ago.
Hi,

Correct. If tomorrow is his first court date, that should be the arraignment. As he's a jail case, he should have a free lawyer assigned. The charges will be read out to him and he'll be asked how he pleads to the charges. He will plead not guilty and that will more or less kick off the start of the case.

There may or may not be an offer from the DA tomorrow as well (a plea bargain possibility). He would generally not have to decide that on the spot.

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