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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 27742
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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My brother was arrested on a charge of child molestation.

Customer Question

My brother was arrested on a charge of child molestation. At the time of arrest they gave my brother a search warrant and searched the house. My concern is they house they searched is not his house nor where he is living. The house belongs to my mother. He is/was living in the back room of the house she lives in. They searched the wrong house, served the search warrant and served the search warrant to the wrong person. Shouldn't my mother be entitled to know what was taken, and what was being looked for as the property owner? Would any "evidence" be admissable under this search procedure?
Submitted: 7 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 7 years ago.

If your brother lives in your mother's home and the police arrive with a search warrant for that address, they do not need your mother's permission to enter the house and search. Without seeing the warrant itself and knowing what they were entitled to look for, I cannot say for sure whether or not the police exceeded their lawful authority and stepped on your brother's or your mother's Constitutional rights. However, if your brother goes to trial on his case -- or if your mother was arrested for something found in the wrong part of the house not related to your brother's case and wanted to go to trial on her case -- the defense lawyer handling either matter could seek to suppress the evidence taken from the home by filing a motion requesting a pre-trial suppression hearing to challenge the police conduct.

The law as to search and seizure, however, is very complicated. The rules are not nearly as cut and dried as they look in the Constitution. Decisions on whether police have overstepped their authority and violated someone's Constitutional rights are determined at suppression hearings on a case-by-case basis. The test the court will apply is what is reasonable under all the circumstances. So until then, even though you believe that the police may have been incorrect here, and even if proves later to be true, the case will still be prosecuted.

If your brother's lawyer is granted a hearing, what happens is that the prosecutor will call the police officer to the stand and will question him as to what he did in this case. He will look into the area of probable cause, the issuance of the search warrant, and so on, to try to show that everything the police said and did in your mother's home was reasonable under all of the circumstances.

When the prosecutor is finished, your brother's lawyer would be able to cross-examine the police officer to try to show just how the police abused their authority, by searching in areas not authorized by the warrant (if that's what happened), as well as question him about anything else your lawyer believes may have been improper during the search. After both sides have finished getting all the evidence out there, the prosecutor and the defense attorney will each get an opportunity to argue their point of view before the judge, drawing support from the testimony that came out at the hearing. After that, the judge will make his ruling.

If the judge rules that police actions were reasonable under the circumstances, all of the evidence taken from the house would be allowed to be used against your brother at trial. If, on the other hand, the judge rules that the police violated some or all of his rights, evidence seized as a result of those violations which would not have been inevitably discovered anyway would have to be suppressed. Either way, as this kind of case doesn't hang exclusively on property that can be taken from the premises (there's an alleged victim who can testify), the case would not be dismissed.

If I've helped, please click the green Accept button so I can get credit for my work.

This thread will not close and you can always use it to get clarification.This is informational only and is NOT legal advice. There is no attorney-client relationship. You are advised to consult an attorney in your state for specific legal advice.
Customer: replied 7 years ago.
Thanks but I think you misunderstood. The house they searched was not the house he lives in. They searched another home owned by my mother. It is not the one he is (or was living in). He is living in the same house she is living in which is NEXT to the house they searched. They served the warrant to him on a house he was not living in and not owned or occupied by him. They served my brother with the search warrant versus to my mother who owns the property. Currently, no one is living in the home they searched.
Expert:  Zoey_ JD replied 7 years ago.
Yes, I did misunderstand, because you mentioned your brother being arrested and your brother being handed the warrant. It was not clear in your first note that your mother owned two houses.

Just to clarify, are you saying that your brother was in the house next door to where he lived, and the police found him there in the house that was not mentioned on the warrant, arrested him and searched the house that wasn't on the warrant?

Customer: replied 7 years ago.
I'm sorry, I agree with you. My first email was unclear. My mother has yet to see the warrant so I'm unaware of what address it had on it. Yes, my brother was at the house next door to where he lived when the police arrived.
Expert:  Zoey_ JD replied 7 years ago.
No problem!

Actually, it doesn't really change the answer too much. I'm sitting down to have dinner right now. As soon as I've finished, I will revise my answer to fit the new facts.
Zoey_ JD and other Criminal Law Specialists are ready to help you
Expert:  Zoey_ JD replied 7 years ago.
Hello again,

When police enter a private home for purposes of a search or seizure, they need either a warrant or an exception to the warrant requirement. In order to get a warrant, the police have to have probable cause. Probable cause for an arrest is a reasonable belief that a crime may have been committed and that a particular person may have had something to do with it. Probable cause for a search would be a reasonable belief that a particular address may have evidence of the crime that may have been committed.

In order to get a warrant, formal paperwork must be prepared, and then the police and the paperwork must come before a judge who speaks to the officers and evaluates whether there's probable cause or not. If the judge believes that there is, he signs the warrant. This can be a time consuming procedure, as it involves several people who must be rounded up to make this come together, and it is done in private and with a court reporter who prepares a transcript of the proceedings. As you can imagine, in some situations it would be downright unreasonable to require a delay. So once again, whether the search and seizure of your brother was proper is going to come down to a hearing, which will be decided on the basis of what a reasonable police officer would have done under all of the circumstances.

Since you say there was a warrant, though for the other house, it's fair to say the had the police gone to the judge for a second warrant, it would have almost certainly been granted. But depending on the day and time and circumstances, there may have been no time for the police to do that. Some exceptions to the warrant requirement involve "hot pursuit" (the police spot the suspect. He sees them too and runs into someone else's house other than his own. Police are allowed to chase him without a warrant), exigent circumstances, (to protect the destruction of evidence or the flight of the suspect), if the suspect poses the possibility of a great risk to others, and on in that vein. Once the police apprehend someone, they are allowed to take evidence which is in plain view, and to look for weapons within reasonable reach of the defendant. They would be expected to have a warrant or an exception to the warrant requirement if they went any further with a search than that.

So going back to my first post, if your brother goes to hearing and trial on his case, the prosecutor will call the police officer to the stand and elicit testimony that will suggest that everything the police did was reasonable under all the circumstances. They will try to fit the facts into one of the warrant exceptions. The defense attorney will try to show that if the police could get one warrant, they could certainly go back and get it right, and that there was no emergency or threat that would have prevented that. He will also explore the search, arguing that the police exceeded the scope of a warrantless search and that once the defendant was apprehended, there was surely no reason not to wait for a warrant. Again, after all of the evidence comes out and each side points up the information in its favor the judge will rule.

There are two other things you should be told before I am through here. One is that these hearings are very difficult to win. Judges give a great deal of deference to the judgment calls of police out in the field and are inclined to regard their testimony favorably. The second is that usually hearings are held at the end of the case, in many instances right before a jury gets picked. With serious cases, the best offers that the state will make are usually pre-indictment at the beginning of a case and are off of the table by the time of the hearing.

Your brother will need a lawyer if he doesn't already have one. That lawyer can talk to your brother at length, look over the evidence, speak to the prosecutor and see the discovery and give him an idea of his chances of getting anything suppressed at a hearing, along with the strengths and weakness of his trial case, and the up and down sides of any plea agreement. That way your brother will be in the best position to choose a course of action, whether it be plea or trial, that he believes is in his best interest.


If I've helped, please click the green Accept button so I can get credit for my work.

This thread will not close and you can always use it to get clarification.This is informational only and is NOT legal advice. There is no attorney-client relationship. You are advised to consult an attorney in your state for specific legal advice.

Edited by FranL on 1/3/2010 at 2:25 AM EST