Probation came to my home looking for a friend of mine. He did not use my address as his resident. Probation entered my home with Sheriffs and searched every room, even made me unlock doors when I didn't want to. I am not on probation, and never been in trouble.
When they made me unlock my personnel office they went in alone and found a bag of dope in my drawer.
I'm now being charged and having to go to court. I want to tell the Judge the report from the Sheriff is wrong in his details.
Will the judge believe me or the Sheriff due to drugs being found. I'm charge with a misdameador.
The judge may or may not believe you - it all depends. I am more interested in the fact that you did not want them to search. That they had you open your locked office. That seems the cops may have violated your rights. Probation searches are based upon prior consent. The probationer consents to the search as a condition of his release.
But when another person in the house objects to the search - then what?
Please read Georgia v. Randolph. Its a 2006 US Supreme Court case which held when adult co-residents of a home are both present, and one denies consent to enter and search and the other purportedly grants consent, police may not enter or search based on the purported consent. The denial of consent by one overrules and overrides what would otherwise be a valid consent by the other.
I'd make that argument if I were you lawyer - in addition to the standard arguments in favor of suppression.
Also - since it is a misdemeanor you really are risking nothing by going to trial. If you are innocent of these charges you sure should push them to trial.
You need an attorney ASAP.
The above information does not establish an attorney client relationship nor is it meant to provide legal advice.
If you are SURE you didn't grant permission, this could be good suppression case.
Get a lawyer NOW, write down the facts while they are fresh in your mind.
Curt Harrington Patent & Tax Law Attorney Certified Tax Specialist by the California Board of Legal Specialization PATENTAX.COM This communication is general information and not legal advice, and does not create an attorney-client relationship. This communication should not be relied upon as any type of legal advice. Please note that no attorney-client relationship exists between the sender and the recipient of this message in the absence of either (1) a signed fee contract and (2) remission of an agreed-upon retainer. Absent such an agreement and retainer, I am not engaged by you as an attorney, nor is any other member of my law firm.
Your attorney should be able to show this is a bad search. I am assuming this was not the residence of the probationer. Even then, as the other attorneys have advised, your locked office was entered without permission. Cops get away with what we let them get away with. We pay. Hire an attorney, or ask the court for a public defender.
We do not have a client/attorney relationship until you make an appointment, we discuss your case face to face, I accept a retainer, and we explictly agree to enter into representation.
I respond to this question only to add that probation searches are "good" only for common areas. If there is an area of the home where the door is locked and the person on probation does not have the key and is not allowed to go, then if the court follows the law, the evidence should be suppressed.
You will want to discuss this with a lawyer. As someone else pointed out, find one now and discuss this with him or her. Do not discuss your case with anyone other than an attorney.
This answer is based upon the minimal information contained within your question. There may be other information which could modify or negate the answer I have given. For particularized legal advice, you're always best advised to consult with an attorney personally, so that the relevant "back and forth" can allow for obtaining all information necessary to a complete answer.
Besides stating the obvious that has already been said by my colleagues, which is good advice, to get an attorney to represent you in this matter, I see no reason why the police should have searched your drawers if they were just looking for your friend. If that is the case, and you didn't give consent to the search, an attorney should be able to have the evidence suppressed based on the facts you gave. Good luck.
Michel & Associates, PC
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In California you can seek to keep evidence out under PC 1538.5 . You should sit down with an attorney that you choose to work out the details and look at filing a motion to suppress this evidence.
The communication above is provided for informational purposes only. It is not legal advise and does not create an attorney client relationship with anyone. Please consider the information above and get competent legal advise from your trusted advisor.
Whose Castle Is It?
This whole scenario seems wrong. If “your friend” did not live with you, and this was your home, you had a right to deny entry unless a search warrant was presented. Since you are not on probation, then you are not subject to relaxed search and seizure rules. Thus, this intrusion constituted a violation of your 4th Amendment rights. Did you tell the probation officer or the sheriff deputies that “your friend” did not live at your home? Did you object to the sheriff’s entry into your home? Of course, the sheriff’s department will claim that you consented to the entry and search. Consent is an exception to a warrantless search, unless accompanied by threats or intimidation by show of force (See Schneckloth v. Bustamonte (1973) 412 U.S. 218, 227 [“[W]here the police have some evidence of illicit activity, but lack probable cause to arrest or search, a search authorized by a valid consent may be the only means of obtaining important and reliable evidence.”]. However, in the case of People v. Gorg (1955) 45 Cal.2d 776, 782 the California Supreme Court stated that “[E]vidence must be presented that will enable the court to determine for itself whether consent was in fact given.” (See also, U.S. v. Guerrero (10th Cir. 2007) 472 F.3d 784, 789 [“There must be clear and positive testimony that consent was unequivocal and specific”].)
If your friend was living on the premises, then the terms of his probation may have provided for the consent to search his house upon request by a police officer. However, if you are also living at the premises, and are present, your consent is also needed. The case cited by Mr. Bogan, Georgia v. Randolph, 547 U.S. 103 (2006), is right on point. An evidentiary seizure is unlawful even with the permission of one occupant when the other occupant, who later seeks to suppress the evidence, is present at the scene and expressly refuses to consent to enter the premises. The key to this case is “present at the scene.” The Fourth Amendment recognizes a valid warrantless entry and search of a premises when the police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, common authority over the property, and no present co-tenant objects. (See United States v. Matlock, 415 U. S. 164, at 70; Illinois v. Rodriguez, 497 U. S. 177, 186.)
You need an attorney. Your attorney has to file a motion to suppress under Penal Code section 1538.5. I have provided authority which you can provided to your attorney. It will come down to whether the judge believes that you objected to the entry and search. Good luck. Next time bring up the drawbridge and set fire to the moat.
Drew Allan Cicconi
Attorney at Law
Disclaimer: This is a general discussion of legal principles by a California lawyer and does not create an attorney/client relationship. This is not intended to be legal advice in your specific case. It's impossible to give detailed, accurate advice based on a few sentences on a website. You should always seek advice from an attorney licensed in your jurisdiction who can give you an informed opinion after reviewing all of the relevant information in your case.
First of all, you need to hire an attorney if you do not have or ask for a court appointed attorney if you cannot afford one yet because you will not be able to defend yourself in your case since an average person charged with the crime does not know how to deal with the legal motions in criminal court.
Your attorney should file a motion to suppress evidence because it is very clear based on your description of the events that the probation department and the sheriffs search your residence without your consent.
Since you are not on probation and your friend does not live in your home, the probation department and Sheriffs did not have the right to conduct any search without your consent and violated your 4th Amendment right against unreasonable searches and seizures. Even if your friend shared your residence with you, the probation department and Sheriffs could only search the common areas and his bedroom, but not your bedroom or any other area that is in your exclusive control, and they can do it only if your friend has a search and seizure as condition of his or her probation (which means that they can search his/her car and a place of residence with or without warrant, with or without consent, with or without probable cause that a crime is or has been committed)
Regarding your question whether the judge is going to believe your or the Sheriff, please be aware that judges have a tendency to believe law enforcement officers more than they believe criminal defendants. If there were any other people in your home in time of the search, and they are willing to testify at your suppression motion hearing that they heard that you did not consent to the search of your residence and that your friend does not live with you, it is going to help you if they are credible and trustworthy, especially if they have never had any problems with the law and are not on probation. If you were the only person present, and you did not give consent to the search of your home, your attorney will probably advise you to testify at your suppression motion, then it will all depends on how credible and trustworthy you are and how well you present yourself in court.
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