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Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 102191
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Do I have the right to deny police in to search my home

Customer Question

Do I have the right to deny police in to search my home without a warrant? I have allowed them into my home on 5 seperate occassions without a warrant. The 6th time I stated enough was enough if they wanted to search my home they would need to obtain a warrant. I was then charged with obstruction of justice charge. Do I have the grounds to bring a lawsuit against the Crestline Ohio Police Department for civil damages as this has seriously impacted my health.
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.

Hello and welcome to JustAnswer. Please note:This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

Generally speaking, yes. A warrant is only not needed in the following scenarios:

Search Incident to Lawful Arrest

Plain View Exception

Consent

Stop & Frisk

Automobile Exception

Emergencies / Hot Pursuit

For an explanation of each, see HERE. Unless one of the exceptions applies (and whether or not it does is ultimately up to the Court to decide), then the police arguably could not have entered without permission.

To win the case, the prosecutor would have to show that the Defendant (i.e. you) did one of the following:

(1) Harbor or conceal the other person or child;

(2) Provide the other person or child with money, transportation, a weapon, a disguise, or other means of avoiding discovery or apprehension;

(3) Warn the other person or child of impending discovery or apprehension;

(4) Destroy or conceal physical evidence of the crime or act, or induce any person to withhold testimony or information or to elude legal process summoning the person to testify or supply evidence;

(5) Communicate false information to any person;

(6) Prevent or obstruct any person, by means of force, intimidation, or deception, from performing any act to aid in the discovery, apprehension, or prosecution of the other person or child.

For more, see HERE.

Now, if the obstruction of justice charge fails, one may wish to consider suing the department for malicious prosecution.

The essential elements of a malicious [criminal] prosecution are (1) malice in instituting or continuing the prosecution, (2) lack of probable cause, and (3) termination of the prosecution in favor of the [criminal] defendant. Trussell v. General Motors Corp.,***** 3d 142 - Ohio: Supreme Court 1990. One can request actual and punitive damages as part of he case.

I hope this helps and clarifies. Please use the SEND or REPLY button to keep chatting, or please RATE when finished. You may always ask follow ups at no charge after rating. Kindly rate my answer as one of TOP THREE FACES/STARS and then SUBMIT, as this is how I get credit for my time with you. Rating my answer the bottom two faces/stars or failing to submit the rating does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith with a positive rating.

Customer: replied 1 year ago.
My 25 yr old daughter was tresspassed at my apartment complex. I allowed them to enter my resisdence 5 times to search for her. All 5 times she was not here and they did not find her. I have legal custody of my 2 grandsons and police presence in my home traumatizes them as they witnessed police brutality of their mother and they were removed from her custody. Everytime they enter my home my 5 yr old autisic grandson melts down and it often take 30 to 45 minutes to calm and reassure him that they aok and they (the police) are not taking them away to fostercare. I have repeatedly told the police this and 1 officer was very good and understood. One officer who issed my summons for obstruction of justice chg is always loud, rude and clearly upsets my grandsons. I have systemtic lupus and this harrassment has thrown me into repeated flares and now stress hives. My daughter was tresspassed for a verbal argument with apartment mgr. at my complex. Was my civil rights violated. In addition my neighbor caught same police officer trying to open my window and enter my apartment while I was sleeping is that legal? My daughter was not in my apartment and I even go her on phone at her apartment and he refused to talk to her or rive the quarter mile to her apt to verify she was there. is any of this legal?
Expert:  Ely replied 1 year ago.

"Was my civil rights violated."

If one can show that they had no exception to enter the home (see my original question), but did so anyhow, then yes. And once/if the obstruction of justice charge is beaten, then, one can possibly sue the department for trespass and negligence per se, and the prosecutor for malicious prosecution.

" In addition my neighbor caught same police officer trying to open my window and enter my apartment while I was sleeping is that legal?"

Absolutely not unless one of the exceptions in my original answer applied, and it sounds like it may not have.

Gentle Reminder: Please, use REPLY or SEND button to keep chatting, or RATE POSITIVELY and SUBMIT your rating when we are finished. You may always ask follow ups at no charge after rating.

Expert:  Ely replied 1 year ago.

Hello again. This is a courtesy check in to see if you needed anything else in regards ***** ***** question. I am simply touching base. Let me know. Thanks!