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MyraB
MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience:  I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
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I was subjected to S.W.A.T team destroying my front entrance

Resolved Question:

I was subjected to S.W.A.T team destroying my front entrance door, handcuffed because I would not stop talking. the warrant was very vague no names were listed; just a known felon with a hand gun, and my address.
Submitted: 1 year ago.
Category: Criminal Law
Expert:  Alex J. Esq. replied 1 year ago.
Hello. My name is XXXXX XXXXX I will be happy to answer your question.

I am sorry to hear about your difficult situation.

What is your specific legal question for me please?
Customer: replied 1 year ago.


what can I do legally to correct this situation. these are felony charges. note: they did not find anything nor did they take anything. also I have a valid conceal permit issued by the state of Virginia.

Expert:  Alex J. Esq. replied 1 year ago.
Dear Louise,

Thank you for your follow up.

What felony charges are you facing?

Have you consulted and retained local criminal defense attorney?
Customer: replied 1 year ago.


No attorney yet


 


asked the ACLU to review based on the 4th amendment

Expert:  Alex J. Esq. replied 1 year ago.
What felony charges are you facing?
Customer: replied 1 year ago.


none at this time, I am named as a person involved on the police report.

Expert:  Alex J. Esq. replied 1 year ago.
Dear Louise,

Thank you for your follow up.

What are being accused of in the police report?

Can you provide me with more details about the situation?
Customer: replied 1 year ago.


the wording in the report is blacked out. I am only listed as a person involved, in the area's that are not blacked out.

Expert:  Alex J. Esq. replied 1 year ago.
Dear Louise,

It would be impossible for me to answer a question regarding a situation where the criminal allegations or potential criminal charges are simply unknown to the customer.

I will opt-out at no charge and will open your question to other JustAnswer.com legal professionals.

I wish you the best of luck!
Customer: replied 1 year ago.


thank you

Expert:  MyraB replied 1 year ago.

Hi. I see that the previous expert has opted out and I will do my best to assist you and answer your question today.

It's my understanding that the police executed a warrant at your address looking for a person. Could you tell me if this was an arrest warrant or a search warrant? Was your address listed on the warrant?

It is also my understanding that you were not charged with any crime, that you don't expect to be charged with any crime, and that the warrant was not directed at you. However, you were handcuffed and roughly treated and there was property damage while the police were executing the warrant. You now want to know what options for redress that you might have.

Please clarify or confirm the situation and we can continue the conversation.

Customer: replied 1 year ago.


That is correct. A brief background: my son's baby's mother initiated this police report to avoid court ordered visitation.


 


Also the child told my son, that her boyfriend was punching him in an abusive manner, when confronted the mother file a false report.

Expert:  MyraB replied 1 year ago.

Thank you for confirming the above information.

Although you did not respond with whether the warrant was a search warrant or arrest warrant, the principles involved are generally the same. Search warrants must describe the objects of the search with sufficient particularity that leaves the executing officers no discretion to determine what they are looking for. Arrest warrants must particularly describe the person to be seized, specifying the name of the person to be arrested, or if the name is XXXXX XXXXX the person by any name or description by which the person can be identified with reasonable certainty. The warrant and/or warrant affidavit must describe the suspect with sufficient particularity to eliminate any substantial risk of ambiguity, to eliminate the risk that an innocent party may be arrested under the description contained on the face of the warrant.

So, if the warrant did not describe sufficiently what the officers were looking for, this could be a basis to invalidate the warrant. This may be the situation if the warrant described who they were looking for as just “a known felon with a handgun.” If the affidavit supporting the warrant described the person in more detail, the warrant’s validity may be saved by that more specific description.

In either case, whether valid or invalid in fact, when executing the warrant the police are entitled to rely on a facially valid warrant, meaning one that was issued by a judge or magistrate. Even if the warrant is later challenged and it turns out to be invalid, the police have qualified immunity from liability for reasonable conduct during the execution of the warrant.


The immunity from liability is qualified, so that there are circumstances where immunity would not be available to the executing officers. One would be where there was an error in execution, for example if they went to the wrong address. Also, although when executing a warrant the police are allowed to use reasonable force, detain persons present and control the place that is being searched, a warrant, whether valid or not, would not shield the police from claims of excessive force.There would also need to be some justification for breaking down the door, either permitted in the warrant, such as a “no knock” provision, an emergency, or the failure to respond to the police knock and announcement to open the door. Claims for excessive force in executing the warrant would constitute violation of civil rights and would be grounds for a civil rights claim against the officers and their employers, whether local, state or federal. There may also be a claim available under the state tort claims act.

Also, in Virginia there appears to be a state claim against the State Police under Va. Code Ann. § 52-7 available for all persons injured or damaged in any manner by the unlawful, negligent or improper conduct of any officer while on duty. This option would only be available if the State Police executed or participated in the execution of the warrant. The recovery under this statute need not depend on constitutional violations or use of excessive force, but could be based on negligent conduct.

At this point, you may want to contact a civil rights attorney who can give you specific advice based on the unique circumstances of your case which is beyond the general information I am permitted to provide here. The Virginia State Bar has a lawyer referral service that you can access here http://www.vsb.org/vlrs/index.php/public/vlrs/ There may be additional claims available to you based on a thorough evaluation of all the circumstances.


With regard to the allegation of child abuse that you mention in your response, if your grandson reported abuse to his father (your son) and your son confronted the mother and/or reported the statement to authorities, there would be no basis for a claim of false report against your son.


Please feel free to ask any follow up questions.

MyraB, Lawyer
Category: Criminal Law
Satisfied Customers: 371
Experience: I have over 20 years experience in criminal law and civil litigation from pre-trial practice to appeal.
MyraB and 5 other Criminal Law Specialists are ready to help you

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