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Jim Reilly
Jim Reilly, Crim Defense Atty
Category: Criminal Law
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Experience:  CA Atty since 1976, primarily criminal law. 150+ jury trials.
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A friend of mine got arrested a couple of weeks ago and I think

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A friend of mine got arrested a couple of weeks ago and I think the cops did an illegal search. My friend lives in Placer County, California and he is not on probation or parole. The cops raided his house WITHOUT A WARRANT. When they KICKED THE DOOR IN they said the were doing a probation search. He made it clear to them that he was not on probation but they said they were looking for stolen merchandise and proceeded to search and break many things in the house and garage. They ended up arresting him for recieving known stolen property and obstructing a public officer. Do you think those charges will stick or do you think the whole thing will be dropped because of an illegal search? Is there anything he should say or do to help himself through this??
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Jim Reilly replied 1 year ago.
Hello kris and welcome back to JustAnswer.

If police officers without a warrant kick in a door thinking that they are executing a probation search and it turns out that no one in the residence was on probation, it seems unlikely that the officers will be able to justify their actions. Conceivably, if they had a good faith reason to believe that someone in the home was on probation, the DA could argue that this good faith belief was sufficient to justify the search.

However, based on the limited information you have provided here, it seems more likely that the search would be found invalid by any judge reviewing it pursuant to a motion to suppress evidence. If this happens, of course, the DA would probably not have enough other evidence to proceed with the case.

Has the DA filed charges in this case yet? If not, it is possible that the DA's office will review the situation, realize that they can't win and not even bother filing charges.

Thanks for asking your question here on JustAnswer. If you have any other questions about this situation, please let me know.
Jim Reilly, Crim Defense Atty
Category: Criminal Law
Satisfied Customers: 1801
Experience: CA Atty since 1976, primarily criminal law. 150+ jury trials.
Jim Reilly and 9 other Criminal Law Specialists are ready to help you
Customer: replied 1 year ago.

The DA has not filed charges yet on this case. Thank you for your answer on this. One more thing, can the cops kick someones door in without a warrant if they THINK someone in the house is on probation or does the person have to be a resident in the home? Thank you

Expert:  Jim Reilly replied 1 year ago.

The fact that the DA has not yet filed charges is a good sign -- normally, they would do so within a relatively short period of time (not more than 2-3 business days), though difficult cases can take longer to decide.

Typical terms of probation require a probationer to submit his person, vehicle and residence to search without a warrant. This allows police to search the actual residence of the probationer, but not residences of other individuals who are not subject to the terms of the grant of probation. Therefore, the mere fact that officers think someone in a particular residence is on probation does not justify a search unless they reasonably believe that the person subject to search conditions is actually a resident. If no one in the residence is actually on probation and the officers had no reasonable basis for concluding that someone who was a resident was also on probation, the search would most likely be found to be invalid.

An excellent discussion of probation and parole searches is available here:

http://le.alcoda.org/publications/point_of_view/files/probation_searches.pdf

This summary was prepared by the Alameda County DA's office and is designed for use by lawyers, so is somewhat technical. Rules regarding the probationer's residence are discussed starting at the bottom of page 17, where it says:

WHERE DOES HE “LIVE?” Before entering a residence to conduct a probation or parole search, officers must reasonably believe the probationer or parolee actually lives there, at least temporarily. Although probable cause is not required, the facts known to the officers must satisfy the lower standard of reasonable suspicion. This means that officers must have some information that reasonably supports their belief.


Thanks again for asking your question here on JustAnswer. If you have any other questions about this situation, please let me know.

Jim Reilly, Crim Defense Atty
Category: Criminal Law
Satisfied Customers: 1801
Experience: CA Atty since 1976, primarily criminal law. 150+ jury trials.
Jim Reilly and 9 other Criminal Law Specialists are ready to help you

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Jim Reilly
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CA Atty since 1976, primarily criminal law. 150+ jury trials.