In general, when a defendant wants to challenge a search as an illegal serach and/or seizure, the person has to have a possessory interest in the residence, car, or item searched and/or seized. Some courts hold that you must have legal standing to assert your individual constitutional rights that you assert were violated. If you are being charged with a crime, you need to retain legal counsel to defend you and discuss any constitutional rights that may have been violated.
I am trying to give you a general answer to your question. We do not have an attorney-client relationship by this response on the avvo website. I have not been retained to represent you. I am licensed to practice law in Kentucky and in federal court in this state and the Southern District of Indiana. You need to seek legal advice from an attorney licensed to practice in your area..
That depends. Residing there would give you standing to challenge illegal search and seizure. If you rely on the officer's word alone to establish your residence there, that should be enough to do it. The problem is if you have to testify at the hearing. In that case, you will surely be asked if you live there, and if you deny it, the judge will rely on your admission of non-residence to deny you standing.
If you can establish illegal search without your testimony, then you probably should do it. If your testimony is needed to win a search hearing, you might have to make a choice between testifying at the hearing and testifying at trial. If you need your testimony at trial that you were just a visitor, then you cannot put on your testimony at a hearing that you lived there. In that case, you might have to choose between a motion to suppress for illegal search, and trial, by choosing when to testify, and what to testify to about your residence status. In part, that choice may depend on the assessment by you or your attorney as to which path has the better chance of winning.
In other words, if you have to testify at a motion hearing to win the hearing, you might want to forget about the motion, and just give your testimony at trial that you did not live there, since testifying to that at the hearing will sink your motion anyway. Or, if the chances of a trial win are not so great, you might want to put all your effort into the motion. This is a complex question whose answer depends on many facts we do not have.
I recommend you hire an attorney familiar with local conditions as soon as possible to discuss all aspects of this difficult question for you.
Contact me at 248-399-6930 for a free consultation. You and I do not have an attorney-client relationship formed by our communications on this website. Advice given by me on this website is general advice based on partial information. You should not rely on any advice given without first hiring a lawyer in the area where the case is pending, and providing that lawyer with full information.
Your standing does not depend on what the officer said. It depends on the circumstances of your presence.
If you just were hanging out--you could be searched under the right circumstances (i.e. the police enter on a warrant searching for guns, they pat you down for their own safety, and discover some illegal item--valid search.
Likewise if you stayed there overnight, or were a full time resident you could also be searched.
Your 'standing' to challenge the search would depend on the exact facts related to why you were there, why the police were in the house, how they gained access to the house, whether police had proper documents to enter etc. So if you have been charged you MUST see a criminal defense attorney. His/Her first step will be to determine if the evidence the government has was validly obtained and whether you have standing to challenge the evidence.
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