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Ask Hammer O'Justice Your Own Question
Hammer O'Justice
Hammer O'Justice, Criminal Lawyer
Category: Criminal Law
Satisfied Customers: 4502
Experience:  Almost 12 years of legal experience, primarily in criminal law
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i was arrested in my home with an arrest warrant for failing

Customer Question

i was arrested in my home with an arrest warrant for failing a probation drug test upon them arresting me they went into my home&searched it, which a VISUAL search is legal due to my probation ,the cops proceeded to go into the basement/garage area& unscrew pieces of drywall from the ceiling. In the rafters they found a set a digital scales that they tested with an instant swab test,the plate of scales tested positive for meth,i wasnt charge with the scales&was told i wouldnt be.Now its 3 months later& i was just charged with poss.of meth & maintaining a common nuisance. paraphalia WAS NOT one of my charges,"SCALES THAT TESTED FOR THE METH".Can this charge uphold as "possession" by being only a swab stating it was positive, no actual meth found,& wheres the paraphalia charge? Can they charge me 3months after the initial arrest when i wasnt charged then? Not to mention there was not any meth found, just a swab of the scales plate. Isnt this an invalid search since it went beyond"visual"
Submitted: 7 years ago.
Category: Criminal Law
Expert:  Hammer O'Justice replied 7 years ago.
What county are you in?
Customer: replied 7 years ago.
why are you, a prosecutor, replying back to me instead of a lawyer? what county do u prosecute in? are all states and counties different? according to your experience in courts would you think this case/charge is valid? id rather not say what county this is from since the issue has yet to be resolved,but i would really like your input on the matter
Expert:  Hammer O'Justice replied 7 years ago.

First of all, a prosecutor IS a lawyer. I am in court every single day on criminal law issues, so suffice it to say I have a great deal of experience in the issue of illegal searches and seizures, and in the area of narcotics prosecution.


The reason I am asking about your county is because every county has different standards for their probation searches. If you don't want to tell me the county I can give you an either/or answer.


First, yes, the state can file charges against you months later, or at any time within the statute of limitations period. Four months is well within the time period allowed by law. Second, you can be prosecuted for possession. The statute merely requires that you possessed any quantity of a narcotic. Any quantity includes residue. The reason there was a delay in the charges was that the prosecutor likely wanted to wait for the lab results to see if there actually was a testable residue on the paraphernalia. As for whether the search was illegal, it depends on whether it was in compliance with the probation standards for your county. If it was not, a lawyer can easily make a suppression motion and have the evidence tossed out at trial.

Customer: replied 7 years ago.
Thank You for your input. With my probation it is law that only a visible search is legal unless probable cause warrants the actual dig search which nothing was found in the visual it was when they took down my ceiling drywall that they found the scales. hopefully my lawyer can help me with a suppression hearing.. thank you
Expert:  Hammer O'Justice replied 7 years ago.
No problem. If they were only authorized to do a visual search, the search in your case appears to have well exceeded that and the evidence should be excluded. Good luck. I'd appreciate it if you would click accept so I get credit for my answer.