Unwarranted Search and Seizure

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Latest post 03-09-2010 9:29 PM by Vadgue.1026. 18 replies.
  • 02-28-2010 5:00 PM

    • jnichols
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    Unwarranted Search and Seizure

    This is taken from a formal police report:

    When a police officer comes to a home to investigate possible underage drinking, he knocks on the door and when the door opens, he asks "where is the alcohol" and then walks in. Once he is inside he then starts asking for consent to search. Shouldn't he ask BEFORE he steps through the door?

    Case is in Colorado

  • 02-28-2010 5:17 PM In reply to

    Re: Unwarranted Search and Seizure

    I couldn't give you a "legal" answer.

    I'm guessing that just opening the door is consent to enter the house.

    Which is a good argument for identifying the caller before you open the door, and having lockable screen or security doors so you can open the inner door without allowing somebody to just walk in. Especially true if you are doing bad things in the house.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 02-28-2010 5:43 PM In reply to

    • jnichols
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    Re: Unwarranted Search and Seizure

    I have been reading case law for weeks now and have found many cases where this is cited

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    Prosecution must demonstrate by clear and convincing evidence that an occupant freely gave the police consent to enter the premises. In the course of making an inquiry, a police officer is not entitled to walk past the person opening the door to a house without obtaining permission to enter the house. People v. O'Hearn, 931 P.2d 1168 (Colo. 1997).

    I would like to use the above as part of our defense for an unwarranted search. plus another option is the minor that opened the door in the first place was an uninvited guest in the home. This can be proven by writen statements from the other juveniles who were there that he was not invited. If we submit this information, do you think our defense of "a person without proper authority is the one who gave consent by opening the door for the officer to enter"?


  • 02-28-2010 5:48 PM In reply to

    Re: Unwarranted Search and Seizure

    jnichols:
    I would like to use the above as part of our defense for an unwarranted search. plus another option is the minor that opened the door in the first place was an uninvited guest in the home. This can be proven by writen statements from the other juveniles who were there that he was not invited. If we submit this information, do you think our defense of "a person without proper authority is the one who gave consent by opening the door for the officer to enter"?

    Depends on a few things.

    How old was the minor?

    If he was "uninvited" what was he doing in the home?

    What brought the police there in the first place?

    What was the result of the police entering the home? Who got charged and for what and under what circumstances.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 02-28-2010 8:05 PM In reply to

    • jnichols
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    Re: Unwarranted Search and Seizure

    The minor was 16.

    The other juveniles were together earlier that night playing pool in town when they came home.

    The minor in question showed up un anounced and when he was asked why he was there, his response was he was waiting on someone else. That someone else never showed up.

    The reason the cops showed up was earlier an informant told the officer there was a party going to take place at that residence later that night.

    The officers police report asked that all the minors be charged with minor in possesion of alcohol. What is questionable is the officer clearly states in his report that the minor in question not be charged.

  • 02-28-2010 8:35 PM In reply to

    Re: Unwarranted Search and Seizure

    jnichols:
    The minor was 16. The other juveniles were together earlier that night playing pool in town when they came home. The minor in question showed up un anounced and when he was asked why he was there, his response was he was waiting on someone else. That someone else never showed up.

    But he was allowed to remain in the house by the other kids who were already in the house. That doesn't make him uninvited. It makes him invited. If he was uninvited he would have been put outside to wait. But he was allowed to stay in the house which makes him invited. And, by the way, makes the statements of the other kids false.

    jnichols:
    The reason the cops showed up was earlier an informant told the officer there was a party going to take place at that residence later that night. The officers police report asked that all the minors be charged with minor in possesion of alcohol. What is questionable is the officer clearly states in his report that the minor in question not be charged.

    Hasn't it occured to you that the kid not being charged was the informant? And once he was allowed to remain inside the house it became perfectly legitimate for him to open the door for the officer.

    My conclusions:

    Citing O'Hearn isn't going to work because the officer had been previously informed that there was going to be an illegal party involving minors and alcohol. That gave him probably cause to enter anyway.

    And saying that the minor wasn't invited just isn't true, because he was allowed to stay inside. He might not have been invited to the party originally, but once inside the house being allowed to stay makes him invited.

    I suggest that the charged minors get themselves lawyers. This is not a do-it-yourself project.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 02-28-2010 9:19 PM In reply to

    • jnichols
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    Re: Unwarranted Search and Seizure

    Makes since on the invited guest so I can't go that direction. I plan on retaining a lawyer but I want to get a feel for which direction he is going to go on my sons defense. He stated on the first visit that the entry was unwarranted and the state could not prove that my son wasn't anything more than a witness if they proved the entry was warranted. I just don't want to get into a situation where I go broke trying to defend my son by not choosing the correct defense.

    I know this lawyer is way smarter than I am when it comes to the law but when I came away from that visit, I didn't feel like he was taking our situation very seriously and after visiting with you, I am even more concerned about what kind of representation we are getting.

    Does the state have to prove each minor is guilty of possesion or is it a case of guilt by association?

    I know you can not give legal advise but theoretically, If you were faced with this situation, which way would you go?

  • 02-28-2010 10:01 PM In reply to

    Re: Unwarranted Search and Seizure

    "Does the state have to prove each minor is guilty of possesion or is it a case of guilt by association? "

    I am not a lawyer. Allow me to offer an opinion on the above quoted statement.

    I have read many messages on this website concerning a misunderstanding of "possession". From what I have gathered, "possession" in legal terms is not what you think. It is not ownership. It is control.

    Example: "My friend gave me some marijuana to hold for him while he went to the bathroom. While he was gone, the cops came and now I am charged with possession. My friend told the cops it was his marijuana, not mine, but I am still charged with possession." Possession is control, not ownership. It is not a question of "guilt by association". It's a question of guilt by the legal definition of control.

    What would I do if my child was in this situation? I would talk to at least three lawyers, spending about a half hour with each. Many lawyers offer a free initial consultation, where the potential client briefly lays out the issues, and the lawyer offers some initial suggestions. The initial consultation is, essentially, a two-way interview. You interview them and they interview you. A lawyer might indicate they can take the case, or might refer you to a colleague who has more experience in that particular area.

    If you interview three lawyers, chances are that at least one will make sense to you. When you have found someone with whom you are comfortable, then retain that lawyer for your son's case.

  • 02-28-2010 10:46 PM In reply to

    Re: Unwarranted Search and Seizure

    Before I answer your questions I found the statute on line. I hope you've read it. If not, read it now:

    http://www.lawinfoboul...

    jnichols:
    He stated on the first visit that the entry was unwarranted and the state could not prove that my son wasn't anything more than a witness if they proved the entry was warranted.

    I don't always disagree with attorneys, but sometimes I do, like now.

    Paragraph 14 of the statute:

    • No law enforcement officer shall enter upon any private property to investigate any violation of this section without probable cause.

    The officer had earlier been advised by an informant that a drinking party was going to happen there. That gave him probably cause to enter and investigate once the door was open.

    jnichols:
    I know this lawyer is way smarter than I am when it comes to the law but when I came away from that visit, I didn't feel like he was taking our situation very seriously and after visiting with you

    He probably wasn't taking it seriously because it's a juvenile offense, the penalties are rather light, and the records get sealed. Assuming that this is your son's first (and last) offense it eventually fades into the category of youthful indiscretion.

    jnichols:
    Does the state have to prove each minor is guilty of possesion or is it a case of guilt by association?

    Paragraph 5 of the statute:

    • Prima facie evidence of a violation of subsection (2) of this section shall consist of: (a) Evidence that the defendant was under the age of twenty-one years and possessed or consumed ethyl alcohol anywhere in this state.

    I don't think a judge will believe that your son was just a witness. He and his friends were there and the beverages were there. Prima facie means that there is no other explanation for your son being their with the beverages other than being in possession.

    jnichols:
    I know you can not give legal advise but theoretically, If you were faced with this situation, which way would you go?

    My kids are ages 38 and 40. They were teenagers once and so was I. As an adult I don't condone underage drinking, but I understand it having participated on several occasions when I was in high school, and quite regularly between the ages of 19 and 21 when I was in the Army. I know, it can be argued that being in the Army makes it OK, but technically I was still breaking the law, just never got caught.

    Getting back to your question, each of my kids made minor blunders that involved the authorities. Instead of getting them lawyers I insisted that they take their lumps for it and learn that behavior has consequences.

    I can't tell you what to do but, considering that the first offense involves up to a $250 fine, 24 hrs community service and some other useful options, I would take my kid to court, have him admit it and accept the punishment, making darn sure he read the statutory consequences of a second and third offense.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 03-01-2010 12:22 AM In reply to

    Re: Unwarranted Search and Seizure

    Unfortunately, Jack is not a lawyer and not familiar with the standards for searches. The Colorado statute which he linked does not override the 4th Amendment requirements. The cop needed probable cause, but he also needed a warrant or needed to meet some exception to the warrant requirement prior to entering the premises without consent. The statement by an informant that a party would take place at the residence is not itself sufficient for the probable cause. One cannot know ahead of time whether, in fact, this party would break any criminal laws. The informant did not see any criminal activity, nor did the cops have information that any laws were, in fact, being broken. Furthermore, given that the cops were warned ahead of time, if the informant's statements were sufficient for probable cause, they'd have had the time needed to get a warrant, and thus they'd have a much harder time arguing that some exception to the warrant requirement should apply here.

    Talk to a couple of lawyers and see what they say. Then decide if you want to hire one to represent your kid in this matter.

  • 03-01-2010 1:42 PM In reply to

    Re: Unwarranted Search and Seizure

    Opening a door is NOT consent to enter the residence.  You have to expect the officer is going to claim consent in some manner.  His police report should lay that out.

    Cops get to operate on the knowledge available to them.  When someone opens a door they would normally have "apparent authority" to consent to entry into the home.

  • 03-01-2010 1:47 PM In reply to

    Re: Unwarranted Search and Seizure

    "But he was allowed to remain in the house by the other kids who were already in the house. That doesn't make him uninvited."

    A minor can not give consent. The fact that the officer stayed in the house is moot and after the point where consent was not given and entry was made without a warrant.

    This will have to be argued before a judge.  At most, the evidence obtained e.g. alcohol and statements, could be disallowed.

    Get a lawyer.

  • 03-01-2010 2:38 PM In reply to

    • jnichols
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    Re: Unwarranted Search and Seizure

    Here is the officers statement about entering the home.

    When the door opened, I smelled an unknown alcoholic beverage coming from the house. I asked the Juvenile "Where is the alcohol". The juvenile said "there is none" The juvenile opened the door more for me to walk in.

    After the officer entered the home he ask "where is your friend?" The juvenile replied "in the bedroom sleeping" The officer asked "can I go see?" The juvenile replied "I guess you can".

    From that point on, everything went down hill.

    My argument is the officer never asked to enter the home in the first place. He just walked in. He didn't actually ask to search anything until he gained access. He needs probable cause and exigent circumstances to warrant an unwarranted entry.

    Another note is before the door opened the officer, according to his own report, had been standing next to a window listening and he shined his light in the window and the kids inside opened the curtain so he could see inside. If he seen any alcohol or exigent circumstances (an emergency) or anything against the law, he could have entered legally to provide aid but he doesn't state any kind of emergency or seeing anything in plain view in his report that would warrant his immediant action or a reason to come inside.

  • 03-02-2010 1:01 PM In reply to

    Re: Unwarranted Search and Seizure

    jnichols:
    When the door opened, I smelled an unknown alcoholic beverage coming from the house

     

    There's the reasonable cause he needed to determine a crime was taking place (minors drinking).

    jnichols:
    The officer asked "can I go see?" The juvenile replied "I guess you can".

    There's the permission!

    jnichols:
    My argument is the officer never asked to enter the home in the first place

    That's a contradiction to the report; he asked and was given permission!

    jnichols:
    If he seen any alcohol or exigent circumstances (an emergency) or anything against the law, he could have entered legally to provide aid but he doesn't state any kind of emergency or seeing anything in plain view in his report that would warrant his immediant action or a reason to come inside

    Having reasonable cause to believe a crime is taking place (again, minors drinking) is all that is needed in most jurisdictions...

    ...and HE WAS GIVE PERMISSION TO ENTER!

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