Did they do an illegal search if my son was not home?

Question

My son is being charged with a  misdemeanor. He was not at home when his room was searched. Was it legal?

Mark R. Thiessen · Answer

He does not have to be present, but they do need a warrant.  This will be very fact specific.

Daniel Kieth Martin · Answer

That depends on many factors, was he already on probation? Did anyone give them permission to search?

John Bussman · Answer

Impossible to guess without a lot more information.  The rules re: search & seizure are pretty complicated.

Aaron Black · Answer

There is not enough information here to give you an answer. Did the police have a warrant? Did someone give the police permission to be in the house?

Leonard Harden · Answer

It really depends, did police obtain consent to search?  Did person who consented have authority to permit search?  There are lots of facts which make a difference.

Stephen Richards · Answer

If they had a search warrant, it was.

Joseph Dane · Answer

His presence isn't the determining factor.  It's the legality of the search itself. Why did they search?  Was he on probation subject to being searched?  Parole?  Was there a warrant?  Did they claim to have consent?  Your son's lawyer is going to have to examine the whole case and determine if there are any search issues - not just whether or not your son was home.

Jules N. Fiani · Answer

Yes.

Jacob P. Sartz · Answer

I'd recommend your son consult with his attorney regarding this issue. If your son does not have an attorney and cannot afford to retain an attorney, he may be able to obtain a court-appointed attorney depending upon the procedures of the applicable court. Whether a search was legal depends on a litany of factors. Searches are frequently issues with motions to suppress. If a motion to suppress is successfully filed by the defense, evidence taken during an illegal search may not be introduced at a potential trial. However, these suppression motions carry certain risks and should only be filed as part of a coherent trial strategy. Your son should consult with his attorney regarding this issue.

Gregory Casale · Answer

Just like the last question that I answered, the police need either a search warrant, permission or exigent circumstances to search without a warrant. If a homeowner or roommate gave the police permission, the search may be legal. You certainly need a good defense lawyer to preserve your son's Constitutional rights if they were violated.

Kathryn Hudson · Answer

A search is legal if anyone in the dwelling gave permission for the search. If your son occupied  a room at a university, college, or fraternity, permission for a search could be granted by anyone in authority.  If none of these conditions were present then the answer is no, the search was illegal and any evidence seized would be inadmissible as fruits of an poison tree.

Eric Sterkenburg · Answer

If the police had a search warrant the person in charge of the property need not be present during the search. If the police did not have a search warrant then they can search if the search falls within one of the exceptions of search warrant requirements.

Craig Elhart · Answer

Whether it was legal would depend on whether they had a search warrant or proper permission.

Jared Altman · Answer

Depends if there was a warrant or not.

Louis Leibowitz · Answer

If you gave the police permission to search your son's room or if they had a warrant, he did not need to be home.

John DeVito · Answer

If the police entered your home without permission and without a warrant, and searched your son's room, the search would be illegal and any evidenced seized as a result of that search would be suppressed.(not allowed as evidence) If a parent or owner of the house gave the police permission to search his room, then the search may be legal and any evidence seized can be used at trial. The facts of the case will be important and may determine whether the search was legal or illegal.

Mark Broughton · Answer

Without a warrant, consent, or some other "exigent circumstance," a search would be unlawful. If he was on probation at the time, most of not all terms now include a search/seizure waiver that would allow a search without a warrant. Other times, a family member gives consent to the police to enter and search. But standing on it's own, that would not allow them to search his home.

Cynthia Henley · Answer

Unless they have a warrant or permission to search the room, the police could not likely conduct a lawful search. (There are some exceptions.)

Jared Austin · Answer

The police can search a house with permission of the owner, a valid search warrant, or a valid exception to the search warrant requirement. Whether or not your son was home while it was searched, is irrelevant. If you are in doubt of the validity of the search, have a criminal attorney review the case file.

Michael Garber · Answer

If someone with authority let them search, it's a valid search; otherwise, there would have to be a search warrant issued.

Mechislav Furman · Answer

Without a search warrant it was probably an illegal search.

Cindy L. Barton-Coombs · Answer

You don't really give enough facts to tell if it was legal or not. Was it his home? Did someone that had legal control of the home give permission? The question that the court asks is did he have a reasonable expectation of privacy that was violated.

Thomas Tomko · Answer

A search can legally be performed for a number of reasons.  A Warrant can give authority to search, even if the person who lives there is not at home.  There can be a consent search by the person in possession and control of the area.  Hot pursuit can also be a valid reason to search. Your issue involves someone who is not home but a search was made.  If it was by permission or pursuant to  warrant, then it may be legally permitted.  However, if the search was done under pretext or it exceeded authority to search or the person giving authority to search did not have the actual authority, then the search may be deemed invalid and a suppression motion may exclude the evidence from being admitted at trial.

Jason Overton · Answer

It depends.  You'll need to provide more information.  They may have had a warrant, or, more likely, someone that was there consented to the search.  You need to speak with an attorney.

James Lochead · Answer

If the Authorities had a Search Warrant, or your son was on Probation or Parole, thus having no right to object, the search would be legal, since his presence is not necessary to conduct the search, if otherwise legal.

Jason Savela · Answer

Assuming this is a shared apartment (not a dorm), where son has his own room that is not shared with anyone else and he has the right to keep people out of, then consent to search that room by anyone else is not valid.    If the police entered the room based on a reason other than consent, such as items in plain view, or a search warrant, then possibly valid.

Steven Raiser · Answer

That will depend on whether the police had a warrant or were given permission to enter and search by the home owner (although there are limitations to searching his room).

Christopher Hoglin · Answer

A search of someone's room does not necessarily depend on whether the occupant/owner of that room was present. The police may search someone's room if they receive proper consent, they have a search warrant, or exigent circumstances exist at the time they conduct the search. Law enforcement may also conduct a search of a room if they observe something illegal that is in plain sight. There are a number of factors the court will consider before dismissing evidence or dismissing a case where there may have been an illegal search.  If your son is being charged with a Misdemeanor, he should get a Criminal Defense Lawyer to evaluate the circumstances surrounding the search of his room, as this may be a pivotal key in determining the outcome of his criminal case.

Kevin Ellmann · Answer

Possibly.  It depends upon whether someone with apparent authority or actual authority consented to the search.  This is a legal standard that needs to be analyzed based upon the circumstances of law enforcements actions.

Jeff Yeh · Answer

It depends if they had a warrant for a search, and if not, if someone was foolish enough to allow the cops to do a search consensually.

Michael Lynch · Answer

The occupant of a residence need not be present in order for a valid  search warrant to be served.

Stephen Freeborn · Answer

If they had a warrant that authorized the search, then it was proper.  Also, if someone let them into the home so they could search it, even without a warrant, the search was proper.   You have given me no facts to provide any more definitive answer.

Harley Gutin · Answer

Does not appear under these facts to be legal unless the officers had a warrant or a person with authority authorized it or some other exception.

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Did they do an illegal search if my son was not home?

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