Court Date on 1/7/10**************... 11358 H&S************** Please Help

[daknarian]

What is the name of your state (only U.S. law)? California

Well I have a story for you guys...

12/14/09 - LAPD Gang Unit is at my door step to serve an arrest warrant for my father, a 66 year old man who was convicted of a felony 14 yrs ago. He had purchased ammunition at a local Big 5 to go to the shooting range. Not knowing that this could come back to harm him.

My wife answers the door, and tells the officers he is not here, but let me give you his phone number so you can clear this up.

Officers barge in with a computer print out, stating this is an arrest warrant and it allows us to check the house for him.

* Question #1... Does that allow the officers to enter the premisis and open doors?

They open the door to the room and stumble upon my little grow setup. In my house.

I get a call from my wife, who states the police are in the house. I rush home from work, walk in the door. Get handcuffed and placed under arrest.

LAPD Gang unit calls in the Narcotics Detectives, who come in and see the grow operation.

I get questioned, I tell the detective that the marijuana in the room is for personal use. And I have an appointment with my physician to get my Recommendation on 12/29/09.

I had put off the appointment due to starting a new job, and was worried it would pop up somewhere.

Total # of plants = 45
Total weight of plants = 156.68 grams

-No Buds on the plants
-No Dried product
-No Packaging for sale
-No Scales
-No Large amounts of Cash
-No theft of utility services
-No Prior violent crime related arrests
-No Prior drug related convictions of any kind
-1 Prior Arrest for Reckless Driving 7 years ago
-Steady Job
-Family

The plants were babies, and were just transplanted on 11/30/09. So there weren't that big.

*Question #2 - Will I be charged with Intent to sell? Is there substantial evidence to make that stick?

#Question #3 - What are some scenarios that might be looking at? I will be pleading No Contest to the 11358 Cultivation charge.

If anyone can chime in with some help, I would greatly appreciate it...

Thank you
DakWhat is the name of your state (only U.S. law)?

 

[FlyingRon]

12/14/09 - LAPD Gang Unit is at my door step to serve an arrest warrant for my father, a 66 year old man who was convicted of a felony 14 yrs ago. He had purchased ammunition at a local Big 5 to go to the shooting range. Not knowing that this could come back to harm him.

Your father is prohibited from possessing a firearm. While the ammo itself isn't a problem, he can't be shooting it even if it's a borrowed gun under ANY circumstances.

Officers barge in with a computer print out, stating this is an arrest warrant and it allows us to check the house for him.

If they had the warrant and reasonable cause to think he was there, they can.

* Question #1... Does that allow the officers to enter the premisis and open doors?

Any place that the person could be reasonably hiding. They can open doors to rooms for sure. Looking on dressers, for example, would not be.

I get questioned, I tell the detective that the marijuana in the room is for personal use. And I have an appointment with my physician to get my Recommendation on 12/29/09.

I had put off the appointment due to starting a new job, and was worried it would pop up somewhere.

It's going to pop up for sure now.


Total # of plants = 45
Total weight of plants = 156.68 grams

*Question #2 - Will I be charged with Intent to sell? Is there substantial evidence to make that stick?

It's possible. 45 plants is a lot for personal consumption. But if you can show that you're such a pot head that you would consume all that (when they are grown), it might be a defense.

#Question #3 - What are some scenarios that might be looking at? I will be pleading No Contest to the 11358 Cultivation charge.

Probation is likely, but up to three years in jail is possible

I don't recommend anybody screw around with felonies. Get lawyers.

 

[daknarian]

I already have retained an attorney, i'm still a little freaked out. I'm aware of the 3 years maximum sentence it can carry.

With the amount being less than a pound, even less than half a pound. Does that have any bearing? Including my past history with the law?

Dak

 

[cyjeff]

A massive (and yes, 45 plants are massive) indoor growth setup does not look like personal use... well, unless you have a serious problem.

I have to ask...

You have an appointment with a physician?

What, you wanted to beat the rush and already have your plants ready to harvest before you saw him/her?

That is crap.

What would you expect a judge to say if you were popped with a pocket full of Oxy and said, "I am going to a doctor tomorrow to get the prescription."

I swear... medical MJ has screwed up more people's idea of how the law works than anything else.

 

[cyjeff]

By the way, you chances of getting a medical MJ card is none.

 

[daknarian]

I want to thank you for taking the time and posting something that doesn't answer any of my 3 questions. Happy New Year to you...

My previous MJ Recommendation expired 11/15/09.

I'm not trying to mess with the system for it to be in my favor, I just want some people with experiance to respond.

Once again thanks for stopping by...

Dak

 

[CdwJava]

12/14/09 - LAPD Gang Unit is at my door step to serve an arrest warrant for my father, a 66 year old man who was convicted of a felony 14 yrs ago. He had purchased ammunition at a local Big 5 to go to the shooting range. Not knowing that this could come back to harm him.

He is not permitted to possess ammunition or a firearm. Even if ...

* Question #1... Does that allow the officers to enter the premisis and open doors?

Yes, an arrest warrant can grant the officers the right to search the premises for him if it is also the residence of the subject on the arrest warrant.

They open the door to the room and stumble upon my little grow setup. In my house.

Oops!

I get a call from my wife, who states the police are in the house. I rush home from work, walk in the door. Get handcuffed and placed under arrest.

Yep.

LAPD Gang unit calls in the Narcotics Detectives, who come in and see the grow operation.

I get questioned, I tell the detective that the marijuana in the room is for personal use. And I have an appointment with my physician to get my Recommendation on 12/29/09.

Maybe you can convince a judge of the valdity of the claim. But, the charge is good in the meantime.

Total # of plants = 45
Total weight of plants = 156.68 grams

And how many plants are you supposed to have?

*Question #2 - Will I be charged with Intent to sell? Is there substantial evidence to make that stick?

No way to predict the future. There is sufficient evidence to support cultivation, but, maybe not sales.

#Question #3 - What are some scenarios that might be looking at? I will be pleading No Contest to the 11358 Cultivation charge.

That is the same as a guilty plea. Your attorney might have some better ideas. Maybe a plea to possession and probation and Prop 36 deferral.

 

[dave33]

They still have time to charge you, so there is no9 way to predict what they will do. You should consult an attorney a.s.a.p. I would talk to him about the legality about them entering w/out a warrant. A good lawyer will be able to at least put up a fight. I did not research your state law or current appeal rulings, but I do not believe unless they saw him enter or he was there and they can say they saw him physically, than they can not enter. Was he there? If not than you may have a leg to stand on.goodluck.

 

[CdwJava]

I did not research your state law or current appeal rulings, but I do not believe unless they saw him enter or he was there and they can say they saw him physically, than they can not enter. Was he there? If not than you may have a leg to stand on.goodluck.

In CA the police need only articulate "probable cause" to believe that the suspect is inside (Jacobs (1987) 43 Cal.3d 472, 478-479). That is a relatively low burden of proof. But, if they cannot sufficiently articulate it, then MAYBE a court would toss the search.

 

[daknarian]

He was not in the house, my wife made that clear when they knocked on the door. There was no cars in the driveway or on the street.

We called him and he promptly showed up.

Dak

 

[dave33]

Well than it is time to look at the finances. You need a lawyer, so you should put something together. You have a long way to go. You need to look at the officer's statment, basically you need the discovery package. Usually the state does not make this a friendly procedure. You need to subpeona this sometimes more than once. Not sure about there but here basically the judge gives the state more time and almost never are sanctions taken. Maybe taking a strong and aggressive stance will make your plea more attractive. No way to tell. goodluck.

 

[FlyingRon]

He was not in the house, my wife made that clear when they knocked on the door. There was no cars in the driveway or on the street.

The police are not obliged and frankly would be foolish to accept the "He's not here" line when they have a warrant to arrest someone.

As pointed out, they had all the probable cause they needed to look for him inside. Just because police have a warrant for something or someone else doesn't invalidate things they learned when reasonably executing the search under that warrant.

 

[CdwJava]

Well than it is time to look at the finances. You need a lawyer, so you should put something together. You have a long way to go. You need to look at the officer's statment, basically you need the discovery package. Usually the state does not make this a friendly procedure. You need to subpeona this sometimes more than once. Not sure about there but here basically the judge gives the state more time and almost never are sanctions taken. Maybe taking a strong and aggressive stance will make your plea more attractive. No way to tell. goodluck.

Discovery in CA is almost always automatic and generally does not require a subpoena or further court action. It would be stupid for a prosecutor to withhold discovery because they would find their case dismissed. There might be parts of the case that will not be included in initial discovery (test results, subsequent reports, photos, recording, etc.), but the reports and documents associated with the investigation should be included. In the counties where I have worked, the discovery documents are submitted to the court at the time of the request for charges so they can be made available immediately to defense counsel at arraignment. No fuss, no muss, no arguments and no delays.

And, as the burden to compel entry is simply "probable cause" they can rely on such information as a vehicle registered to him being in the driveway, a recent sighting there, or most any other reasonable cause to believe he might be present.

 

[dave33]

Thanks Carl, things are different here. Than to the o.p., make sure everything is included. Actually, hopefully your lawyer will do that. Carl and Ron know that state's law, actually any law much better than myself. Also, they have both made it clear that the threshhold for entry is minimal when a warrant has been issued. The fact of the matter is, once you open the door they are coming in. I still respectfully disagree with the police entering a residence with no other expectation that the person will be there. Even if the report reads exactly how it happened, it probably is still legal. I just don't see how.

 

[CdwJava]

Dave, it is because the legal standard for entry into a suspect residence to search for the suspect is simply "probable cause" to believe that the person is home. If they are unable to articulate sufficient cause, then a court may very well entertain a motion to dismiss by the defense.