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Zoey_ JD
Zoey_ JD, JustAnswer Criminal Law Mentor
Category: Criminal Law
Satisfied Customers: 27419
Experience:  Admitted to NYS Criminal defense bar in 1989. Extensive arraignment, hearing, trial experience.
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i was set up for prostitution where a female officer came in

Resolved Question:

i was set up for prostitution where a female officer came in my house and immediately wanted to go upstairs to my bedroom and while we were upstairs 2 more officers came in my house searched my downstairs and actually went into my kitchen a seperate room and found a sealed tupper ware bowl with a weed pipe and papers in it that you could not see through then they walked upstairs with it and arrestesd me for prostitution and simple possession and then asked if they could search and didnt find anything else. In the report they say they came inside to assist the other officer and the weed was in plain view one pfficer says I gave consent to search and then it was found and the other officer says it was in plain view and it was retrieved should i be protected under the 4th ammendment
Submitted: 6 years ago via Nolo Press.
Category: Criminal Law
Expert:  Zoey_ JD replied 6 years ago.

Thanks for your question. It certainly does appear that you were set up. I'm assuming you were expecting the "prostitute" and that, obviously, you wanted to let her in. From there, the police are claiming that they entered to safeguard the officer and, of course, the weed was in plain view.

According to According to the US Supreme Court, police are legally allowed to lie everywhere except when under oath on the stand, and sting operations are lawful. From there though, with regard to search and seizure the police need a warrant to search your premises or an exception to the warrant requirement.

While you clearly have issues here if there could have been no way for them to have seen what was in your tupperware bowl, police improprieties don't in and of themselves mean your case can't and won't get prosecuted. There are no hard and fast rules when it comes to 4th Amendment issues. The Supreme Court has said that what is Constutitional must get determined on a case by case basis at special suppression hearings designed to challenge the police conduct.

The standard that a court is to apply is "what a reasonable police officer would do under all the circumstances." So at a hearing, the prosecutor would put the police officer on the stand, and try to bring out facts that would make it appear to the judge that everything the police did under the circumstances was reasonable. When the State is finished your lawyer would cross examine to try to point out where and how the police overstepped their authority in violation of your constitutional rights.

You can bet that the police will try to say that they came into your house to protect their officer. Emergency situations are a legitimate exception to the warrant requirement. From there they will likely try to show that the search was "incident to the arrest" which does give them a right to search what's in plain view and areas that were in your immediate vicinity and that you consented to anything further.

How will this come out? I couldn't say. However, suppression hearings, no matter how damaging the fact pattern, are never a slam-dunk for the defense. Courts are inclined not to second-guess the procedures of police out in the field. They know their job is a difficult one and courts don't want to hamstring the police in their efforts to thwart crime. So in most cases, the courts will find the police actions reasonable under the circumstances, and the evidence against you would come in at trial.

You will need a lawyer to fight this case, and he'll be able to see and hear evidence that I cannot, before he advises you. He should be able to tell you once he's done some work on the case how viable your suppression hearing would be and, if you lose the hearing and the evidence comes in against you, what defenses you might have at trial. Then you will be able to decide whether to go for the hearing (usually held at the end of the case right before jury selection) or to cut your losses early and give up your right to a hearing in trade for a very favorable disposition on the case.

Good luck!

Edited by FranL on 2/2/2011 at 6:09 AM EST
Customer: replied 6 years ago.
Im sorry I am the one accused of prostitution I am female a female officer tried to get me to admit and take money in which I did not and her and I sat in my bedroom talking about my dog and how I am out of the business for 10 minutes when the 2 male officers came upstairs with my bowl and then asked if they could search and all 3 officers wrote statements 1 stated that I was under arrest already when he entered the house to assist and obseved marijuana and rolling papers in plain view in the kitchen,I wasnt under arrest yet and they already had the marijuana when they came upstairs and arrested me .then the other officer says i was under arrest and then gave consent and thats when it was found they cotradict each other ,and for the record Im a webcam performer and was set up in a very sloppy sting and I am hoping to beat the other charges as well I know I will if they were recording because I stated that I wasnt a prostitute I was looking for someone to work with on camera she wasnt expecting them to come up that soon and she had to go ahead and arrest me
Expert:  Zoey_ JD replied 6 years ago.
Good morning,

I'm sorry for the delay. It was after 1 AM here on the east coast when I responded, and I turned in shortly afterwards.

Thank you for the clarification. It certainly makes your case look better, but basically, whether that's so or not, it doesn't change the process that would be used to examine the police conduct. It's all going to come down to whether the judge finds the police conduct reasonable given the circumstances. And don't think for a minute that the police officer is going to testify to the same thing that you will. They will put their testimony out there in a way most favorable to them and that, of course, is what litigation is all about to begin with.

This sting does sound like a very sloppy operation, and it's very possible that the drugs could be suppressed after a hearing. The prostitution charge has a better chance of sticking but it appears to have problems too if the back up team arrived too early before she had established what she needed to in order to make a valid arrest.

Make sure you have a lawyer. And good luck!!
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