QUESTION
Can charges be dropped if the police conducted an illegal search?
Asked on Oct 26th, 2011 on Criminal Law - California
More details to this question:
Outside of the home, police stopped and said we jumped our own 6 foot fence in our backyard which was a lie. Then they smelled marijuana on someone who was with me. Which I understand would be probable cause. But to enter in a home they would have had to get written consent or call to get a search warrant. Neither was done. Isn't it an illegal search? Can't the charges be dropped because the procedure they did wasn't correct? Can they get in trouble? I feel like our rights was violated.
26 ANSWERS
Criminal Law Attorney serving Howell, MI
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Law Offices of Jules N. Fiani
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Yes.
Answered on Jun 03rd, 2013 at 12:12 AM
Yes, you might have a case of an illegal search.
Answered on Jun 03rd, 2013 at 12:04 AM
Geoffrey MacLaren Yaryan
Yes.
Answered on Jun 03rd, 2013 at 12:04 AM
Jacob P. Sartz
Ultimately, whether a search was legal is an issue for a properly filed motion to suppress. If this motion, filed by the defense, is successful, any seized evidence may be excluded from being admitted at trial. Ultimately, it depends on the circumstances.
Answered on Nov 04th, 2011 at 4:08 PM
It's possible. If the search was illegal, and you can prove that in court, you may be able to suppress any evidence that was obtained as a result of the search. If successful, and there isn't any other evidence against you, the case could be dismissed. If, however, the state can try the case even without the wrongly discovered evidence, the state is likely to proceed. A good attorney can analyze the facts of the search for you and advise accordingly.
Answered on Nov 01st, 2011 at 9:59 PM
Drug Charges Attorney serving Houston, TX
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Cynthia Henley
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Hire a lawyer who can review all of the facts to determine if there were exigent circumstances giving the cops the right to enter. If not, then a motion to suppress is in order.
Answered on Oct 31st, 2011 at 2:58 PM
If the search was illegal, the results of that search can be suppressed. Volumes have been written on search and seizure law. You will likely need an attorney to analyze the facts of your case in order to advise you and make the appropriate motion.
Answered on Oct 31st, 2011 at 2:27 PM
Adoptions Attorney serving Lansing, MI
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Austin Legal Services, PLC
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You will need to have an experienced criminal attorney thoroughly review the police reports and evidence to determine if there was a Fourth Amendment violation. If so, then it's quite possible to have any evidence obtained as a result of that violation suppressed and excluded. Depending on what you have been charged with, there may or may not be enough evidence to proceed even if the evidence was suppressed. There is no way for me to make that determination here from the brief description of the events which are a little confusing. Have an attorney review the record to determine what you should do. If the police violated your rights, you can always file a complaint. Keep in mind that it is hard to sue the police because they have immunity unless the violation is beyond mere negligence. It has to be really flagrant. Speak with an attorney who does civil rights police cases to see if you have a case.
Answered on Oct 28th, 2011 at 3:02 PM
Police need probable cause or a search warrant to conduct any search. The police also need probable cause to demand a person to stop. The police report will say that they saw you jump the fence. This is suspicious and is probable cause to stop and question. Smelling marijuana on someone is probable cause for a person search. If you told the police that you lived in the home that they saw you jump the fence of they could assume that there would be marijuana in the house too. At that time they could search the home if they got a search warrant, if they had verbal consent from someone that lives in the home or if they had reasonable cause to believe that evidence or illegal substances would be disposed of or destroyed. When you go to court you will find that the police report will include information that validates the search.
Answered on Oct 28th, 2011 at 12:06 PM
Criminal Law Attorney serving Los Angeles, CA
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Law Office of Edward J. Blum
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It sounds like they lack probable cause to search inside the house when you were detained outside the house. I think even the scent of marijuana on a person, particularly if they are not residing in this house, is sketchy for probable cause. Remember, they also have to have a reasonable suspicion to detain you and your friends in the first place. If they don't, the fact that you ran and everything that comes afterwards is suppressible because they lack that initial reasonable suspicion.
Answered on Oct 27th, 2011 at 11:50 PM
Criminal Defense Attorney serving Montrose, NY
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Law Office of Jared Altman
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If they entered the house illegally then it's possible that some evidence may be suppressed which may kill the prosecution's case.
Answered on Oct 27th, 2011 at 10:43 PM
3 Awards
They certainly can, but you need a skilled drug trial attorney to fight this case for you and make the argument. The DA won't listen to you and the cops will lie. Hire the best attorney you can afford.
Answered on Oct 27th, 2011 at 9:03 PM
Michael J. Breczinski
According to your facts they should have gotten a warrant to search the property. And yes that could be used to suppress anything they found.
Answered on Oct 27th, 2011 at 9:03 PM
Drug Crimes Attorney serving Philadelphia, PA
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Laguzzi Law, P.C.
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The charges wouldn't get dropped necessarily. You would file a motion to suppress any physical evidence that was recovered. If the motion is granted and the Commonwealth does not appeal that decision, then they would move to dismiss the case. Consult with an experienced criminal defense attorney.
Answered on Oct 27th, 2011 at 9:03 PM
Probable cause means they do not need your consent, within certain limits. You need to hire a lawyer to argue 4th Amedment, because yes, charges can be dropped (when certain evidence gets excluded) after a motion is filed based on an illegal search. You really do need a lawyer to present this.
Answered on Oct 27th, 2011 at 8:53 PM
Criminal Defense Attorney serving Orange, CA
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Law Office of Joe Dane
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The remedy for an illegal search is exclusion of any evidence found, but not necessarily invalidating the rest of the case. You don't say what (if anything) was found in the house that could be suppressed. Search issues are very fact specific, so this will take more than an on-line answer. You'll need to discuss all the details with your attorney.
Answered on Oct 27th, 2011 at 8:45 PM
Criminal Defense Attorney serving Santa Ana, CA
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Law Offices of Paula Drake
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There could be exceptions to the warrant requirement to search the house; call an attorney to discuss the specific details. If they did seize evidence from the house without a warrant or consent and there is no exception to the requirement under the facts of the case, a motion to suppress the evidence could be filed and the issue litigated. Even if the evidence from the house is suppressed, there may be other evidence that they could use against you (e.g. statements, physical evidence) from the initial contact. In order for an attorney to analyze all of the issues, you should contact counsel with more detailed accounting of the facts.
Answered on Oct 27th, 2011 at 8:25 PM
Criminal Law Attorney serving Oakland, CA
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Dennis Roberts A Professional Corporation
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If you can prove all of facts, you win. But remember the three rules that Judges generallyfollow: 1. All defendants lie. 2. All cops lie. 3. Ignore number two because of number one. Just make sure your attorney or public defender knows all of these facts.
Answered on Oct 27th, 2011 at 8:23 PM
The entrance to the home requires more facts. If they did what's called a protective sweep then it would not be illegal. There are several caveats to search of a home, but you are right in that if the search does not fall into one of the exceptions then it was illegal.
Answered on Oct 27th, 2011 at 6:50 PM
Appellate Attorney serving University Place, WA
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Baner and Baner Law Firm
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They may have. Frankly, these sorts of questions come up all the time online. What do people think criminal defense attorneys do exactly? We read police reports, conduct investigations, do suppression hearings to suppress illegally obtained evidence, etc. If you know that searches may be unauthorized, then you must already know that charges may be dismissed if a COURT rules that the evidence is unauthorized (court or prosecutor may dismiss). In your particular circumstances, it is impossible to tell anything about what will happen because the police report is an absolutely crucial piece of evidence to review.
Answered on Oct 27th, 2011 at 5:42 PM
Bankruptcy Attorney serving Federal Way, WA
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Freeborn Law Offices P.S.
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Not necessarily. If the arresting officers are "in pursuit" based upon the commission of a crime, they may be able to follow you into the home, especially if there is fear for the safety of individuals, including the officers. If an illegal search was conducted, it may or may not result in the dismissal of the case. If the search was found to be illegal, then a judge could rule that any evidence obtained as a result of the illegal search is inadmissible. If the evidence that is ruled inadmissible is critical to the prosecutor's case, the case could be thrown out or dismissed. If the evidence is not critical to the case, then the case moves forward without the evidence. My advice: consult with an attorney.
Answered on Oct 27th, 2011 at 5:42 PM
Transportation Attorney serving Mamaroneck, NY
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Palumbo & Associates, PC
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If evidence was gleaned as part of an illegal search then it should be suppressed under the "fruit of the poisonous tree" doctrine. Give us a call if you would like to discuss retaining our office to represent you.
Answered on Oct 27th, 2011 at 4:24 PM
Daniel Kieth Martin
Smelling the weed outside would not justify the search of the home. I am not entirely clear of the order of things or what was written in the police reports. You definitely should meet with a criminal defense attorney and discuss your case. You may be able to suppress the evidence. Of course it would only be evidence of what they found in your house.
Answered on Oct 27th, 2011 at 3:18 PM
Criminal Defense Attorney serving Irvine, CA
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Todd A. Landgren A Professional Law Corporation
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Sure, the evidence can be suppressed IF the search was illegal! But that has to be litigated! The prosecutor isn't going to just "drop" the charges because YOU feel the search was illegal. If that were the case, no charges would ever be filed. Get a lawyer who can contest the legality of the search!
Answered on Oct 27th, 2011 at 2:56 PM
Gary Moore
You are entitled to ask the judge to suppress all evidence seized from the premises of your house, based upon the failure to obtain a search warrant.
Answered on Oct 27th, 2011 at 2:27 PM
Drivers License Suspension Attorney serving Redlands, CA
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Law Offices of Matthew Murillo
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Your sort of right. A search warrant is needed to enter a home and search, HOWEVER, there are several exceptions to this requirement. Without much more information, there is no way to know whether one applies, but it sounds like it might. At least, the DA could make an argument that an exception applies. As far as dismissing the case entirely, the DA will not do so automatically. You should consult a few attorneys to see what they think about the case, after getting the details. You may need to file a Motion to Suppress Evidence in order to "force" the DA to dismiss the case.
Answered on Oct 27th, 2011 at 2:25 PM