i was arrested while walking with my wife and son.i exited my home.when i was approx. 5 houses away undercover jumped out of the bushes and arrested me on a 21 y.o. warrant...i was searched subject to arrest.i was in possession of approx 3 gm methamphetamine.after i was taken to jail police immediately told my wife whom does not live w me she wanted to get diaper bag inside the door of house.they told her that they needed to do a protective sweep of the house..heres the thing at this time they had no probable cause to get a warrant for my home they conducted this protective sweep using it now stateinf they saw stuff they used on the warrant application to raid my home.clearly 5 houses away where the arrest took place does not necessitate protective sweep of my home additionally note all police at the scene know that i did not want them in my home or on my property.i made that extremely clear
Although your initial selection of Constitutional Law was entirely correct, I took the liberty of changing it to Criminal Defense as it appears that you have the need of such services. In any event, from your description of the surrounding facts and circumstances, the pretext of a protective sweep seems pretty week. There are some important gaps in your recitation, however. It sounds like they got a search warrant for the house based upon observations made during the protective sweep. It also appears, though not stated explicitly, that your wife consented to the protective sweep or broader search. Likewise, you have not made it clear whether the search or whatever sort of your house resulted in the seizure of additional contraband. The search incident to arrest on a warrant would have justified a limited search, unlikely to legitimately reveal three grams of any substance. Taking you into custody would justify a more thorough search, but the nature of the warrant you tell us was 21 years old would also need to be considered in a full analysis of your situation. I hope you have retained qualified criminal defense representation on whatever charges have resulted from this encounter. If you have not, I strongly recommend that you abandon you DIY effort to figure it out. That is one of the primary things your attorney ought to do for you. Good luck.
You do not state if the Police found any items within the residence. If you are a charged with an offense and believe the police committed a misconduct in obtaining evidence, you could file a Motion to Suppress evidence. A qualified criminal defense attorney can discuss with you the facts of the case and any relevant law.
Generally, warrantless searches are not permitted in Pennsylvania. However, there are a limited number of exceptions.
One reason is if a person, who appears to have authority, gives permission or consent. This is known as apparent authority. If your girlfriend appears to have apparent authority, this would permit the police to enter your residence.
Another reason is if police are performing a protective sweep. There are a number of reasons police could perform a protective sweep. One is to ensure that there is noone in the house who could be a danger to them. You state that you were only five doors away from your residence (which I would assume would be within visibility of your residence). However, you also state here that your girlfriend needed to enter the house to get a diaper bag. To ensure she will not be a danger to the police, they could enter the residence with her to perform a protective sweep.
However, this answer is based upon the limited facts that you provide here. A qualified criminal defense attorney could discuss in more detail with you whether a Motion to Suppress is appropriate considering the facts and the applicable law.
Legal disclaimer: Please note: Robert Cronin is licensed to practice law in Pennsylvania. Nothing in this article is to be taken as legal advice. No communication between Robert Cronin and readers of this article is to be inferred to cause an attorney client relationship. If you require legal assistance please contact an attorney who is licensed in your jurisdiction and knowledgeable in the area of law in which you require help.
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