Eminent Danger?

[tacason]

What is the name of your state? California

I had just returned from AZ. after a 14 hr drive with family property(trust) of my father that had recently passed. I am 36 with a felony 13 yrs ago, no assaults. My lifestyle is no longer what it once was. Life is good. I have a friend and her son living with me at this time to help with some of there difficulties. Her husband is on parole and violated. The Police came looking and found him at my place of residence. I myself am not on on probation/parole. I'm clean. After they apprehended him they asked if they could search my room. My thought was for them to make sure that no one else was in the house for their safety. WRONG. They actually searched my belongings. There was a briefcase that brought back from AZ. with a .38 cal revolver not loaded with bullets in a leather case and I told them about a .22 in my safe I had put in there earlier not loaded with bullets in the leather case. That was the way m father had left it. Regardless to say, I was arrested with poss. of a firearm. Did 7 days before I bailed out for $50,000. I now have 2 charges, 1 poss. of a firearm and 1 for having bullets, (2) Felonies counts. I went to AZ., my sister has 2 kids and married. I suppose that I didn't get the trust property to my sister fast enough but then again after I woke up from the drive home they were here in an hour. I have access to any and all paper work in regards to my father passing and my sister as the benificiary to the trust. I'm recieving character letters from evryone I know to give the courts some kind of reference of who I am and how I've changed over the past 13 years. HELP.............

 

[CdwJava]

Specifically what statute (number) are you being charged with? I presume you have been charged with at least one count of being a felon in possession of a firearm (PC 12021) - though $50,000 bail is quite steep for that!

Unfortunately for you, there is no legal reason for you to possess a firearm regardless of the fact that it is a 13-year-old felony. You would have to get the conviction overturned, pardoned, or reduced in some manner for this to be permitted.

- Carl

 

[tacason]

I am being charged for 1 count apiece for the firearm and the bullets. Carl, so it's to my understanding that regardless what the case is even though there was no intent to commit a crime, my life as I know will remain tainted due to my past regardless of how my life is to this day? The property is 3rd generation stuff. I would consider them antiques tho i'm pretty sure they would work. Is there any consideration of the type and age of a firearm?
Respectfully,
Dennis

 

[CdwJava]

I am being charged for 1 count apiece for the firearm and the bullets. Carl, so it's to my understanding that regardless what the case is even though there was no intent to commit a crime, my life as I know will remain tainted due to my past regardless of how my life is to this day? The property is 3rd generation stuff. I would consider them antiques tho i'm pretty sure they would work. Is there any consideration of the type and age of a firearm?
Respectfully,
Dennis

There are few exceptions for the firearms in possession of a felon. And intent is not one of them.

The only consideration might be if the weapon were an antique or curio firearm:

PC 12020(b)(5) Any antique firearm. For purposes of this section, "antique
firearm" means any firearm not designed or redesigned for using
rimfire or conventional center fire ignition with fixed ammunition
and manufactured in or before 1898 (including any matchlock,
flintlock, percussion cap, or similar type of ignition system or
replica thereof, whether actually manufactured before or after the
year 1898) and also any firearm using fixed ammunition manufactured
in or before 1898, for which ammunition is no longer manufactured in
the United States and is not readily available in the ordinary
channels of commercial trade.

(7) Any firearm or ammunition that is a curio or relic as defined
in Section 478.11 of Title 27 of the Code of Federal Regulations and
which is in the possession of a person permitted to possess the
items pursuant to Chapter 44 (commencing with Section 921) of Title
18 of the United States Code and the regulations issued pursuant
thereto. Any person prohibited by Section 12021, 12021.1, or 12101
of this code or Section 8100 or 8103 of the Welfare and Institutions
Code from possessing firearms or ammunition who obtains title to
these items by bequest or intestate succession may retain title for
not more than one year, but actual possession of these items at any
time is punishable pursuant to Section 12021, 12021.1, or 12101 of
this code or Section 8100 or 8103 of the Welfare and Institutions
Code. Within the year, the person shall transfer title to the
firearms or ammunition by sale, gift, or other disposition. Any
person who violates this paragraph is in violation of subdivision
(a).

However, PC 12021 doesn't specifically exemot these firearms as PC 12020 does ... but, it might be possible if your weapons fit into this category - which they don't appear to.

- Carl

 

[tacason]

I appreciate the replies, thank you. Ok, you seem to have shut the door on that and that's ok. With my consent, my intentions for them to search my room was for their security and piece of mind that there were no more individuals in the residence. Not being on probation what right did they have to go thru personal property? I was not the one in question. I understand the plain view of site search but there wasn't any security reasons for them to open a briefcase and search for something while they were there, is there? Not on probation/parole why was my 4th amendment violated? As I see it, unreasonable seach? You bet. Even tho there wasn't any search warrant and I granted consent, my room was down the hall and I noticed they kept staring at the doorway, so why not let solve there curiosity to see that nobody was in my bed & bathroom for their safety. Human beings do not fit in briefcases, so what, he took a stab in the dark and got lucky? For what was he doing searching the briefcase? You don't believe that was unreasonable? There was no further probable cause to seek any further wrong dueings unless in plain site.?. So what exactly are your procedures to continue the search after the suspect was already detained? Isn't it game over unless their is probable cause?
Thanks,
Dennis

 

[CdwJava]

When they asked if they could take a look around, that gave them pretty much open consent until you withdrew it. Unless you told them they couldn't look in this, that or the other thing, they may well have had free reign of the residence until that consent was withdrawn.

The other problem was the fact that you had a parolee living with you. Anyplace he had access to may have been open for search as well.

- Carl

 

[tacason]

How am I to know that they were going to look into everything? They still had their guns drawn to continue their sweep of the house. They ask permission to continue the sweep into my bedroom. They didn't have their guns put away and then ask me. They still felt as tho a threat was still present, hence the permission to continue the search. Once they recognized that the imediate threat was over a request to search personal belongings should have been requested. They didn't have that consent for personal stuff. I would have asked for a search warrant for my stuff which there never was one in the first place and no, the parolee is not a resident at my place. Only you might know how they got my address to come look at my place, I am off the radar and I earned that. I now even volunteer for the San Bernadino Forest Dept. Now they seem to be driving up and down my street at their leasure which isn't a crime. 13 yrs ago when I made the decision to straighten my life out I moved from the city where I was known. Moved about 10 miles to another city and within a week or so my new place of residence was visited by 4 detectives there to introduce themselves to me, go figure, I wasn't even home but my fiance' was. So now i'm 10 years clean from the drugs, 3 years and change from drinking alcohol and still attend A.A. meetings regularly just because. This is just for a laugh, nothing more to be read into. My attorney agreed that if I was to go and commit certain crimes and make a big money and turn my self in that I would still do the same amount of time and the D.A. offered 6 months. By then everything that I have accomplished and made of myself would be lost (constrution biz, real estate biz, vehicles, tools(+/- 7K ), and a 2 bedroom house of furnishings, and my 2 dogs. So I ask you, did he or didn't he search more than what was required due to the nature of the call. Please accept my apology if this is a little too direct.

 

[CdwJava]

They ask permission to continue the sweep into my bedroom. They didn't have their guns put away and then ask me.

A protective sweep for additional suspects or dangers is not the same thing as a search.

They are apparently alleging you freely gave consent for them to look around. Your attorney can argue that consent was not freely given because they were intimidating, but that is an argument you will have to assert in court.

However, you still have that nasty problem of a parolee living at your home. Any place he is living is subject to his search conditions. If he had been living under your roof, any place in that home that he could conceivably access would be subject to search. The exception might be if he was hiding out in your place (in which case you have committed another crime by shielding an absconding parolee), so you may want to be careful about asserting that claim.

They still felt as tho a threat was still present, hence the permission to continue the search. Once they recognized that the imediate threat was over a request to search personal belongings should have been requested.

All they have to ask is permission to look around. Apparently they did that. They do not have to give you a rundown of what they intend to look for and how they intend to do it. You can certainly ask, and you can deny the request. Now, you will have to assert in court that consent was not freely given. And they will have to either fall back on the status of the parolee or drop the charges ... though the weapons will be gone.

no, the parolee is not a resident at my place.

Only his wife and child lived there? He never stayed there at all?

Only you might know how they got my address to come look at my place, I am off the radar and I earned that. I now even volunteer for the San Bernadino Forest Dept.

How would *I* know how they got your name and stuff. I can only presume they tracked down the parolee at large.

So now i'm 10 years clean from the drugs, 3 years and change from drinking alcohol and still attend A.A. meetings regularly just because.

That's truly commendable.

But you still are not allowed to posses sfirearms.

So I ask you, did he or didn't he search more than what was required due to the nature of the call. Please accept my apology if this is a little too direct.

He did what I would have done. We tend to find that where parolees lay low (particularly absconding parolees) there are crimes being committed. Whenever possible we are going to conduct a search of the residence. What they were "required" to do and what they were legally able to do are different matters. The sad fact is that parolees commit crimes and they surround themselves with people who themeselves commit crimes or assist them in commiting crimes.

Whether the consent was valid will be based upon the totality of the circumstances in your case. But, most officers in a similar situation would also have asked for a consent to search the residence ... and if the parolee was living there, asking for consent would be an exercise in manners because consent would not generally have to be provided.

- Carl

 

[tacason]

Carl, I believe at this time youhave answered and solved quite a few curiosities. I consider you a very knowledgable individual and am greatly appreciative for the time you have given to me and my circumstances. Once again, thank you very much. Until I have another Q&A, thanks again.
Respectfully,
Dennis

 

[tacason]

I was informed about some kind of suppression, p.c. 1538? Does this have to do with an illegal search and seizure?

 

[CdwJava]

I was informed about some kind of suppression, p.c. 1538? Does this have to do with an illegal search and seizure?

PC 1538 has to do with a list of items seized in a search warrant that must be turned over by a judge to the person who had the property seized. In this case, there was no search warrant so that section does not apply.

1538. The magistrate must thereupon, if required, deliver a copy of
the inventory to the person from whose possession the property was
taken, and to the applicant for the warrant.


- Carl

 

[garrula lingua]

PC 1538.5 - Motion to Suppress (no probable cause for search )

Usu you will receive the best offer for settlement on the day of the suppression motion - (tho 99.99% appear to be denied {fail}).

If the DA who has discretion regarding an offer on your case, is aware of the circs, s/he may make a good offer, such as an "ESS" sentence:
(execution of sentence suspended - 16 mo (or other) of state prison, suspended - you don't serve the time unless you violate probation - the time hangs over your head for the three years of probation, but with your ability to walk the straight & narrow, this may work for you).......

Good luck.

 

[CdwJava]

I agree. I would think that a deal would be very likely here - especially if she has been off the radar screen for several years and out of trouble.

But ... I still keep coming back to this parolee-at-large issue. The last few times we have had homes where the resident allowed PAL subjetcs to remain, we also had other "fun" events ... standoffs with the police, child stealing, molestations, congregations of wanted hoods, etc. It's not something that we (the police) are keen on.

- Carl

 

[tacason]

California

Hello everyone who has been involved with this and to give you an update of the current situation. Other than going to court every week and a half for due process. I finally have a break in time to where I can actually work again being a self employed Contractor. Going back to court in Feb. for pretrial. Being that i'm in my 3rd courtroom I now have my 3rd public defender. she put in a motion for a 1538 suppression. Don't that's going to work. Still need to meet with her and talk. The 4th amendment is? Unfortunately, I was mailed a suppena(sp?) for the violator in Chino, Ca. I didn't even make to the panel. His attorney came and I informed him that under advisement of my attorney I plead the 5th amendment. His jaw dropped. Didn't do your homework, I said. He looked at me and walked away knowing I was right.