Illegal Search And Seizure??????

[Eman75]

What is the name of your state?Texas
TEXAS.....I was minding my business one day playing MP3's on my computer. My PC's sound card is wired to my stereo surround system which packs quite a punch. The music was a loud so I couldnt hear my neighbor's family fighting in the back yard. After about 20 minutes I started to hear aggressive banging on the front door as I was in the back den. As i neared the front door to look out the peephole, and right as I put my eye to the hole they banged again furiously. Startled, I thought it might be my wife getting off from work early so i just opened the door. As the regret kicked in, I was looking at 2 police officers. He asked if I lived there and I responded with "Yes". He claims they got a call for loud music but it was only 8:30 p.m. and I knew that my connecting neighbor wouldnt call the laws cause their my friends. He then asked for I.D. and I told him I'd go get it. As I went to shut the door he put his foot in it and pushed it open with his hand. He stated that he smelled marijuana. I told him he was not to enter and I proceeded the back den to retrieve my I.D. As I went to put an ashtray away behind some disks on my PC desk it tipped over and made some noise. When I turned around to head back towards the door i noticed the officer already coming back through the hallway. He asked if I was alone and again I said "Yes". He then asked if he could look around and I said "No. Not if you dont have a search warrant". He ignored my warnings and took his flashlight specifically looking through my PC desk. After digging around for a minute he found a joint and my ashtray of roaches. He looked further behind my books and found a half of pound of marijuana. They then cuffed me and sat me down while they searched the rest of the house. After only finding my scales did they stop and placed me in the squad car. I noticed on his portable PC in his car that they had been dispatched for the distubance at my neighbors but overheard my music and decided to ruin my night. Whats funny is that they told me i was being charged for Felony Possesion & Intent to Distribute, but later I later found that they ONLY charged me with Misdemenor Possesion. Was the search illegal? Or did they have probable cause? On the report they claim they heard noise and thought I was destroying evidence or retrieveing a weapon, but if he was where he was suppossed to be (still at the front door) theres no way he couldve heard the astray tip over. Please help.

 

[CdwJava]

The officer will have to justify the search of the room, but he did have every right to follow you inside while you retrieved your ID. The first time someone on a "nothing" call returns with a gun you'll understand why.

If he could see or smell the marijuana in the room you were in, that could be sufficient to justify a limited search. And they may have dropped the charge to possession for the joint in the ashtray because the DA decided the search behind stuff was questionable ... or, they didn't want to fight the searh matter in court.

I presume you have obtained counsel? If not, you probably should.

- Carl

 

[Jack_David]

The officer will have to justify the search of the room, but he did have every right to follow you inside while you retrieved your ID. The first time someone on a "nothing" call returns with a gun you'll understand why.

You are wrong.

No one has a right to force thier way into your homes. Unless the officer had a search warrent, was invited in, or had some serious probable cause (like hearing someone screaming in the background) he had no right to enter the home.

Additionally unless you are driving in a car they have no right to demand to see your ID.

This is the United States of America, not some 3rd world dictatorship, you have no requirement to produce your "papers" for the police.

That being said in the current state of the world the police will usually look for any excuse to search your car or your home if the opportunity presents itself. The police love going on "fishing expiditions."

That is why it is best when you have an actual encounter with the police at your home that you go outside to meet them and then close and possibly lock your door behind you.

 

[CdwJava]

You are wrong.

I guess the USSC is wrong, too.

No one has a right to force thier way into your homes. Unless the officer had a search warrent, was invited in, or had some serious probable cause (like hearing someone screaming in the background) he had no right to enter the home.

Not true. There are other allowances and one of them is for officer safety.

Additionally unless you are driving in a car they have no right to demand to see your ID.

Also not true. There are other circumstances where the police can demand to see ID. Whether this was one of them or not, I can't say as I am not familiar with TX law on this issue. But, once the occupant agreed to get the ID from another room, the police had a right to follow them inside for their own safety. The occupant could have refused to provide ID ... but that may have made matters just as bad (depending on what the officers were legally able to do under the circumstances).

This is the United States of America, not some 3rd world dictatorship, you have no requirement to produce your "papers" for the police.

Under certain circumstances you have a choice: Provide documents of identity or go to jail until the figure it out.

That is why it is best when you have an actual encounter with the police at your home that you go outside to meet them and then close and possibly lock your door behind you.

But, that's not what happened here.

- Carl

 

[Kane]

In Texas, possession of marijuana between 4 ounces and 5 pounds is a state jail felony, punishable from 6 months to 2 years.

However, it sounds like an illegal search, to me.

The Court of Criminal Appeals has said that the smell of marijuana is not enough to justify a warrantless entry into someone's home. State v. Steelman, 93 SW3d 102.

I don't think that Carl's argument is going to fly, either - at least, I've never heard of anything that says you can go into somebody's home so you can follow them around while they get their wallet.

This was a noise complaint. You can get a long way with "officer safety," but not that far.


Edit: As Carl said, you need a lawyer. It'll be up to him to file the motion to suppress, and argue it in court.

 

[BelizeBreeze]

You are wrong.

No one has a right to force thier way into your homes. Unless the officer had a search warrent, was invited in, or had some serious probable cause (like hearing someone screaming in the background) he had no right to enter the home.

Want to provide any legal basis for that ASSUMPTION?

Additionally unless you are driving in a car they have no right to demand to see your ID.

And the U.S. Supreme Court tells ME that YOU are an idiot who doesn't know what he's talking about.

This is the United States of America, not some 3rd world dictatorship, you have no requirement to produce your "papers" for the police.

Again, take it up with the U.S. Supreme Court.

That being said in the current state of the world the police will usually look for any excuse to search your car or your home if the opportunity presents itself. The police love going on "fishing expiditions."

and in this instance with the stated facts, they went 'fishing' with legally valid bait.

That is why it is best when you have an actual encounter with the police at your home that you go outside to meet them and then close and possibly lock your door behind you.

And this is so stupid it doesn't even deserve a comment

 

[CdwJava]

I don't think that Carl's argument is going to fly, either - at least, I've never heard of anything that says you can go into somebody's home so you can follow them around while they get their wallet.

This was a noise complaint. You can get a long way with "officer safety," but not that far.

Yes, you can. The federal courts have said that we may follow the person in (I have the cite at the office) for our safety. We can't SNEAK in, but we can certainly follow behind the person - we do it all the time and it is pretty well-settled law. However, there may be some federal appelate court decisions in TX that are different than our wonderful 9th Circuit out here so there could be some regional idiosyncracies on the issue.

Whether the circumstances to justify the entry are present here would be up to a court to decide. But, in general, we are under NO legal obligation to allow a subject to leave our sight and wander about a house without our presence. The resident could have then refused to fetch his ID but then he might have been taken in to custody for the noise violation until his ID could be ascertained (depending on state law).

- carl

 

[smutlydog]

The officer will have to justify the search of the room, but he did have every right to follow you inside while you retrieved your ID. The first time someone on a "nothing" call returns with a gun you'll understand why.

If he could see or smell the marijuana in the room you were in, that could be sufficient to justify a limited search. And they may have dropped the charge to possession for the joint in the ashtray because the DA decided the search behind stuff was questionable ... or, they didn't want to fight the searh matter in court.

I presume you have obtained counsel? If not, you probably should.

- Carl

If he could see or smell the marijuana in the room you were in, that could be sufficient to justify a limited search.

http://www.law.com/jsp/tx/PubArticleTX.jsp?id=1032128830719

 

[BelizeBreeze]

And from my cursory search of the case law, Texas seems to be one of only a handful of states that do not allow smell to be reasonable grounds for a search....so, start backing up the trailers from Arkansas because GW just turned texas into a trailer state.

 

[Jack_David]

And the U.S. Supreme Court tells ME that YOU are an idiot who doesn't know what he's talking about.

It seems to me that it is you who doesnt know what you are talking about. In the United States it has never been required to show picture ID to anyone.

You have to show it to a police officer if you are driving a car but that is only because driving is a supposed "priviledge" and that is part of the agreement when getting a liscense.

Sure in most cases sheep like yourself will take the easy road and just show ID to whomever asks for it just to make things go quicker and more simpler. Hell I do it alot of times too, however I realize that when I do it isnt because some random person in whatever real or imagined position of authority has the legal right to see my ID.

I'm going to assume you are refering to the Hiibel case. That ruling only means that Nevada's law was found to be constitutional, and said law had little to do with "showing ID," and had to do with the the fact that Hiibel refused to tell the officer's his name.

That being said Texas has a similar law, but it is not the same. That Supreme Court ruling didnt change anything in Texas.

http://www.capitol.state.tx.us/statutes/docs/PE/content/htm/pe.008.00.000038.00.htm

§ 38.02. FAILURE TO IDENTIFY.
(a) A person commits an
offense if he intentionally refuses to give his name, residence
address, or date of birth to a peace officer who has lawfully
arrested the person and requested the information.
(b) A person commits an offense if he intentionally gives a
false or fictitious name, residence address, or date of birth to a
peace officer who has:
(1) lawfully arrested the person;
(2) lawfully detained the person; or
(3) requested the information from a person that the
peace officer has good cause to believe is a witness to a criminal
offense.

If you are arrested in Texas you have to give your name, address, and DOB. You do not have to show ID.

However if you are not arrested and merely detained, then you do not have to give your info, however by this law it would be a crime to give out false information. Remember giving false information and no information are not the same thing.

 

[Jack_David]

And from my cursory search of the case law, Texas seems to be one of only a handful of states that do not allow smell to be reasonable grounds for a search....so, start backing up the trailers from Arkansas because GW just turned texas into a trailer state.

Awww whats wrong? You seem to have a problem with people being secure in their persons, houses, papers, and effects, against unreasonable searches and seizures?

What a person does in the privacy of thier own homes as long as it doesnt harm anyone else is no one's business but thier own.

I hate nanny state liberals that want to take away our rights.

 

[CdwJava]

If you are arrested in Texas you have to give your name, address, and DOB. You do not have to show ID.

However, if you are detained for a violation that you can be cited out for, and you fail to produce acceptable identification, then the officer can instead arrest you until your identification is verified.

So while the law wouldn't require you to present ID, there might be repercussions for not producing it. And in this particular case at hand, the resident said he was going to a back room to get it and the officer followed him. Unless TX law is different than the rest of the country, there is a very good chance that will be permissable.

I have no idea on the discovery of the marijuana as it an arguable matter whether the officer conducted a "search" by looking behind things or whether the stuff was in plain sight. But the entry by itself is likely going to be lawful. Had the occupant refused to get his ID, and the officers could not make an arrest due to no crime, then they could only have said, "See ya."

- Carl