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