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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 27706
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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If an arrest warrant is issued and the police executing that

Resolved Question:

If an arrest warrant is issued and the police executing that warrant find only an underage child at home at the time, do they have a right to enter the home and do they also have a right to search the home for evidence?
Submitted: 7 years ago.
Category: Criminal Law
Expert:  Zoey_ JD replied 7 years ago.

If the police were acting pursuant to a lawful warrant they would not need your consent for them to enter your home and search. That said, you didn't see the warrant or its scope because you weren't home..

If you or someone in your household was arrested based on evidence that was found during this search the defendant's lawyer would be able to move for special pre-trial hearings which are designed to challenge the constitutionality of the police conduct.

The law as to search and seizure 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 these hearings on a case-by-case basis. The test the court will apply is what is reasonable under all the circumstances.

At a suppression hearing, the prosecutor will call the police officer to the stand and will question him as to what he did in your case. He will ask him to explain the probable cause for the warrant and to discuss the entry, the search, and everything that flowed from that in an attempt to show that everything the police said and did was reasonable under all of the circumstances.

When the prosecutor is finished, the defense lawyer would be able to cross-examine the police officer to try to show just how the police abused their authority -- how they, for example, took advantage of the fact that a minor was the only one in the house and exceeded the scope of the warrant during the course of their 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, any evidence vouchered by the police from that search would be allowed to be used against the defendant at trial. If, on the other hand, the judge rules that the police violated some or all of the defendant's rights, evidence seized as a result of those violations which would not have been inevitably discovered anyway would have to be suppressed. If the case is a drug case, and the drugs got suppressed at a hearing, obviously the entire case would have to be dismissed.


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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.

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