Can a case be dismissed due to illegal search/seizure & unlawful entry by an officer ?

Asked over 1 year ago - Greenville, NC

my child was jumped by 4 girls after school one day & a neighbor called the police. Since I didn't have my key at first, (dropped breaking up the fight) we sat on the porch to talk. 2 officers kept telling me to calm down & to go into the house. I had to remind them I was on the porch cause I didn't have my key. They said If I couldn't calm down or go in they will just leave. I told them to just leave then and they did. The 2 remaining officers asked more questions. When my keys were brought to me, 1 of them asked could he & the other officer come in to talk. I said yes & we went into my apt. About 15 min. into the conversation my front door opens & 1 of the officers that had left walked in & began wandering around. Didn't come in to ask me any questions. I got a drug par. charge

Attorney answers (5)

  1. Chrystine Denise Carvalho

    Contributor Level 8

    6

    Lawyers agree

    Answered . It is a bit more complicated than that. first, based on the information you have provided it sounds like you invited the officers in for investigation purposes, which means they are not in your home illegally. Second, you do not indicate where the officer found the items you were charged with. If they were in plain view then he did not conduct an illegal search.
    There are many factors that need to be considered regarding the circumstances of this case.

  2. Stephen Michael Corby

    Contributor Level 10

    3

    Lawyers agree

    Answered . The case itself cannot be dismissed for this reason. But the "fruits" of the illegal search can be kept out of court. Without that evidence it usually amounts to the same thing and the DA will dismiss it. I suggest contacting a local defense attorney in your area or talking to a public defender/court appointed attorney when you get offered one during your first court hearing.

    These answers are not intended nor shall it be deemed to be the rendering of legal advise, they are given based on... more
  3. Rebecca A Nitkin

    Pro

    Contributor Level 6

    4

    Lawyers agree

    Answered . The Officers entry was not illegal as the officers asked you if they could come inside and talk and you allowed them to. The other responding officer joined them and had a right to be with his other responding officers. The question is, was that officer in the room with you, or did he wander away without permission? The question is, was the paraphernalia "in plain view" where the officer had a right to be? Or, was it secreted, in a place that the officer actually had to move something, or open something to find it?
    That is what is argued in a Motion to Suppress the Search. If Granted the Paraphernalia is Suppressed and the charge will be dismissed.

  4. Edward Zaryl Kotkin

    Pro

    Contributor Level 11

    4

    Lawyers agree

    Answered . I agreed with one of the answers above. That said, focusing exclusively on the fact of consent limits discussion to the fourth amendment of the US constitution, and leaves an additional issue outside the discussion. The nature and scope of your consent to the entry will also be a big factor in determining whether the evidence seized might ultimately be suppressed or not. Whether the officers were in uniform, had weapons on their person, spoke in raised voices, and/or physically touched you in any way, will all be relevant in determining whether your consent (initial, continuing, etc.) was voluntary or not. Whether your consent was voluntary is relevant under the fifth amendment to the US constitution.

    Turning back to the fourth amendment, the scope of your consent to officer entry into your home is another question. You agreed to having the two officers who remained on the steps with you come in, but your question suggests that a third officer entered on his/her own. It's not clear from your question whether you agreed to that entry, explicitly or implicitly.

    Finally - a question - are you on probation or parole for anything? If you are, the entire issue may be moot because you likely have what are called "search terms."

    Talk to a lawyer. Bottom line: ALL the facts need to be on the table to have an intelligent discussion of suppression of evidence seized. If you want to fight this case, you will need a good attorney.

    Please note that I am in California, and I haven't addressed state law issues at all.

    When I respond to a question posted on Avvo, I provide information for a general purpose. In reviewing my answer,... more
  5. Travis Craig Thompson

    Contributor Level 8

    3

    Lawyers agree

    Answered . I agree with the prior poster, Mr. Corby, except as follows :

    1) were the facts as stark as proposed by the title of the post, and, alleged unlawful entry occurred without a recognized exception (e.g., exigent circumstances, "hot pursuit" of a crime in perpetration, admission) and, considering the relatively low level of criminal charge resulting from your circumstances, I expect the combination of competent prosecuting and defending attorneys could see this matter dismissed without an evidentiary hearing.

    2) HOWEVER, the facts you describe likely do not support "illegal search/seizure & unlawful entry" as you agreed to allow officers into the home. While a competent attorney should point out that the officer discovering the alleged paraphanelia did not have express permission to enter the home, this defense is an uphill battle. Your attorney should consider HOW the officer discovered the alleged paraphanelia--if the item was not in "plain view" then you may have a defense that the officer, even if lawfully present, exceeeded the limits of their invesitgatory powers by searching in manner unrelated to the alleged crime. Here, you're apparently not even a criminal suspect and your daughter's the victim of an assault--neither of these circumstances provide grounds for a broad, unrestricted search of YOUR home.

    This free legal advice does not give create an attorney-client relationship or the privilege protections afforded... more

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