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JB Umphrey
JB Umphrey, Attorney
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Experience:  Explains legal matters based on 14+ years experience.
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My son was servied with a search warrant at his home. When

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My son was servied with a search warrant at his home. When two officers came to his door he knew them and invited them in. They told him that they had a warrant to search for a TV. He showed them into the living room and showed them the TV that they were searching for. At that point they checked the serial number and confirmed that it was the TV the search warrant was referring to. They started to question him and at that point he ask if they needed to read him his rites to which the one replied NO as you arrent under arrest. He became very emotional at that point and said a few things he should not have said not knowing that his conversation was being recorded. He felt he was being retained even though not under arrest, as one officer stood in the doorway with her hand on her weapon. My question is: If he felt he was being retained and was not allowed to leave his home at that point, can the taped conversation be used against him in court.
Submitted: 5 years ago.
Category: Legal
Expert:  JB Umphrey replied 5 years ago.
Thank you for using JustAnswer!

I am sorry to learn of your son's circumstances. Did your son make admissions to the officers?
Customer: replied 5 years ago.
He did Not. His reply was I messed up and what can I do to correct this misunderstanding. The TV was donated to his EMS Agency which was under total construction and was not ready for the TV to be installed. He is being accused of keeping the TV for his personal use.
Expert:  JB Umphrey replied 5 years ago.
Did your son ask the officers to leave?
Customer: replied 5 years ago.
No as they had a search warrant and he felt they were doing their legal duties
Expert:  JB Umphrey replied 5 years ago.
Could your son have left the house via the back or side door if he wanted to?
Customer: replied 5 years ago.
Yes he could have but was under the assumption that he could not as he felt he was being detained for futher questioning
Expert:  JB Umphrey replied 5 years ago.
But no one physically stopped him from leaving or from leaving via the side or rear door, correct?
Customer: replied 5 years ago.
Thats is correct even though the one officer stood in his main door with her hand resting on her side arm
Expert:  JB Umphrey replied 5 years ago.
She didn't have her gun drawn and pointed at him, did she?
Customer: replied 5 years ago.
Oh no. Not at all.
Expert:  JB Umphrey replied 5 years ago.
Thank you. There are a couple of things that have to be taken into account.

The most important thing is that, it doesn't matter what your son said to the officers. The reality is: (a) they had a search warrant, and (b) they found the TV in your son's home. Because of just those facts, it doesn't matter if your son did or did not talk to the officers.

From what you've described, your son's comments did not make a bad situation any more worse. It was already bad.

Now, as for his comments. From the facts that you've described, he was not detained by the officers in the eyes of the law. To determine whether a suspect was in Miranda custody, the U.S. Supreme Court has asked whether "there is a `formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." New York v. Quarles, 467 U.S. 649, 655, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984); see also Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam).

From the facts you've described, at the time, your son was in his home, he was not physically restrained, and he was not prevented from leaving if he wanted to.

Moreover, the Supreme Court has also made clear that the temporary and relatively nonthreatening detention involved in a traffic stop or Terry stop, see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), does not constitute Miranda custody. McCarty, supra, at 439-440, 104 S.Ct. 3138. See also Perkins, supra, at 296, 110 S.Ct. 2394.

So, from everything you've described, your son's rights were not violated and any statements he made to the police would be admissible in court. Again, your son's statements is not what creates the legal problem for him. The fact that the TV was found in his house -- that's what seals the deal.

I wish very much that I could offer you an answer that was more favorable to your son's circumstances, but the law seems to be pretty clear. Had I been able to provide an Answer which might have given your son a successful legal outcome, it would have been my pleasure to do so.

I hope you understand.

It has been my pleasure to assist you today with your information needs. If you have a follow-up question, please reply and ask it.

If you are satisfied that your question has been answered, kindly select the ACCEPT button to close this thread and so that I receive credit for assisting you today.
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Customer: replied 5 years ago.

Mrs. Umphrey


I was mistaken on the issue of my son and the information I gave you. Main issue is that there was NO SEARCH WARRANT and the TV was taken from the home. Does this make a difference

Expert:  JB Umphrey replied 5 years ago.
Thank you for the follow-up.

Even though there was no search warrant; the police asked for permission to enter and your son allowed them in. Because he consented to them coming into his home, there still is no Fourth Amendment violation.
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