Is this a legal search & seizure? (please read the details below)

Asked about 4 years ago - Modesto, CA

Friend arrested for HS11360, away from his home. Within minutes of the arrest cops said they were obtaining a warrant to search his residense, they took him to a holding cell & he was booked 5 hours later. Meanwhile, the cops went to wait at his property (I guess until the warrant was signed) and encountered the subjects wife comming home. She was asked for consent to search, and they were denied. They had her wait outside for 1-2 hours, then they proceeded to enter & search the property without consent, without showing a warrant to her, or her detained husband, or even verbally stating they had obtained one. No inventory sheet was ever shown to anyone either.

Attorney answers (3)

  1. Harry Edward Hudson Jr

    Contributor Level 20

    Answered . They need a warrant to search unless someone gave consent, there are exigent / emergency circumstances or it is incident to arrest. Does not sound particularly legit to me. Your friend needs an attorney.
    Consent may be implied if your friend was on parole or probation and had given a search waiver .
    If this answer is helpful, please check the thumbs up bax below.

  2. Daniel Alexander Flores

    Pro

    Contributor Level 8

    Answered . Whether the search was legal is going to depend on whether or not the police had a warrant (or a provable valid reason to bypass a warrant such as exigent circumstances) and if they did have a warrant did they stay within the bounds of the warrant. Unfortunately, whether or not the police stated aloud that they had a warrant is not really the issue.

  3. Joseph Briscoe Dane

    Pro

    Contributor Level 20

    Answered . When a person is arrested away from a location and the police have reasonable cause to believe that a person at the location will destroy evidence prior to the obtaining of a warrant, they can legally "freeze" the location pending the issuance of a warrant. That's how they had the wife wait outside while they got the warrant. They can enter and do a "protective sweep" of the location to make sure there's nobody inside before they then lock down the house and await the warrant. It's not a full search authorization though - it just allows them to do a search of the location for any people inside.

    There is no legal requirement they actually show the warrant, but it had better have existed at the time of the search in this case. If they did a full search without it under these facts, the defense would have an excellent shot at suppressing any evidence found in the house.

    They are supposed to leave a detailed list of what was seized, but they may have skirted the edge of the requirements by putting a copy in the arrestee's property at the time of booking, etc.

    With every search question, the specific facts will matter. The defense attorney is going to have to examine the warrant and all the other discovery to fully assess this case.

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