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  1. #1
    happyinorbit is offline Member
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    breaking and entering with a key?

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

    For reasons unrelated to the story, my sibling and I have exchanged house keys to each others homes. Several months ago we had a serious falling out and at that time he entered my home with his key and removed items that did not belong to him. When I heard he was out of town I went to his home to retrieve my items and other items he had borrowed and had not returned after several requests. While I was in the house, I found things that were extremely disturbing and detrimental to the wellbeing of a child he has with his former wife. There is an ugly custody battle going on and both parents will be undergoing a custody evaluation to determine what is best for the child involved. I really am worried about the child and feel the mother should know what I found. what i need to know is since he has given me a key to the house, can he have me arrested because I entered while he was away. If not, then can i invite the mom in so she can see for herself and take pictures as evidence. If this is not the right forum, please let me know where I would have better luck posting. Thanks!
  2. #2
    CdwJava is offline Senior Member
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    You might consider consulting an attorney to determine your liability here. But, if the danger is real and not just part of a squabble and one upsmanship, then I'd take the risk of a trespassing beef in order to protect a child.
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  3. #3
    happyinorbit is offline Member
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    for heavens sake, i do not think the child is in mortal danger. Sorry for making it seem so serious. I have evidence of drug use by what i am assuming is the parents, and reckless displays of alcohol. the child in question is 13, has a history of drug and alcohol abuse and has a diagnosed mental disorder that predisposes her to such usages. i also found a note in the childs handwriting (written within the last week or two) that she would like to cut back drinking to 3 times per week. the child is left home, unsupervised daily and the father refuses to acknowledge the child has a problem with her mental state or substance abuse....even thought it is all well documented by 3 professional mental health experts. i feel this information will bolster the mothers case for sole custody so that she can get the child the help she needs.
    So, it sounds as if my brother can send the police to my house and have me arrested for trespassing? Can I not then do the same to him since he also entered my home without permission...a fact that i can prove with witnesses.
  4. #4
    AlmostALawyer is offline Member
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    I agree, you need to consult with an attorney. This situation has disaster written all over it. I don't how the law treats trespass when you have a key. But, arguably, this is still trespass. You could be sued, possibly arrested....the possibilities are endless. Additionally, you may be acquiring this evidence illegally. It may not be admissible in court proceedings. All of this can be avoided if you see an attorney.
  5. #5
    AlmostALawyer is offline Member
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    Quote Originally Posted by happyinorbit View Post
    Can I not then do the same to him since he also entered my home without permission...a fact that i can prove with witnesses.
    Personally, I would have asked for the items to be returned to me, or threatened to sue him for the possession and conversion of those items. Additionally, I may have called the police. In this case, two wrongs don't make a right. Just because someone does something to you, does not mean that you can lawfully do it back (exception: self-defense). This is NOT a defense in court, unless it is self-defense.
  6. #6
    happyinorbit is offline Member
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    the mothers attorney said to get pictures and said it is not breaking and entering.... but the attorney is family law.
    mother simply wants a drug test for father and child and attorney believes this will compel the court. let me fill in a little more detail to see if it helps the perception of what happened.
    I did not mention that my mother was with me at the time and also saw all of this. she also has been provided key and is not presently on bad terms with my brother (though i suspect she will be if she has to get involved). she went to the house to pick up a check that my brother left for her. he knew she was coming to the home and had actually spoken to my mother on the phone while she was in the home. He does not, however, know that I was there.
  7. #7
    happyinorbit is offline Member
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    Quote Originally Posted by AlmostALawyer View Post
    Personally, I would have asked for the items to be returned to me, or threatened to sue him for the possession and conversion of those items. Additionally, I may have called the police. In this case, two wrongs don't make a right. Just because someone does something to you, does not mean that you can lawfully do it back (exception: self-defense). This is NOT a defense in court, unless it is self-defense.
    As I mentioned, I have asked repeatedly for the items back. I am not trying to justify my behavior,or assuming that just because he did, that I could get away with it in court. What my comment was intended to determine is, if he pursues this course of action against me, cant I also pursue the same course of action against him? I believe if he thinks that he too will get in trouble he will not involve the police. Or at the very least, if he sees that I have counter filed a complaint, he will drop the whole thing.
  8. #8
    AlmostALawyer is offline Member
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    You could sue him for conversion, as he has exercised control over property that belonged to you. Thus, if deterrence is your motive, you can file a complaint/counter-compliant against your relative.

    If the family lawyer has told you something is legal, then you have the right to do as he states. I'm not a lawyer, nor have I passed the bar, nor can I be sued for malpractice. Thus, you may want to listen to him and ask him these questions.
  9. #9
    happyinorbit is offline Member
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    gotcha and wouldnt dream of suing you....oh anonymous one. I appreciate the advice. all i know for certain is that the attorney said it was not breaking and entering since i have a key (but didnt say that is wasnt something else, such as trespassing) and to get pictures. of course the attorney represents the best interest of my former sister in law. thanks.

    also-- do you think it makes a discernable difference that I was there with my mother. I would like to keep her out of this because my brother is such and ahole and he will retaliate against her if he feels she was involved.
    Last edited by happyinorbit; 07-11-2010 at 02:46 PM.
  10. #10
    CdwJava is offline Senior Member
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    Quote Originally Posted by happyinorbit View Post
    the mothers attorney said to get pictures and said it is not breaking and entering.... but the attorney is family law.
    Plus the attorney is not YOUR attorney! That attorney can probably use the photos whether or not you are in jail for trespassing! I don't see that he said, "Bring my client with you and take the pictures ..." did he?

    Having a key is but one test for consent to enter, but is not absolute. He can allege you copied a key that he loaned, you he can allege he asked for it back but you refused, etc. In my state this would be a misdemeanor for trespassing in an occupied dwelling, but it may be a more serious offense in your state.

    mother simply wants a drug test for father and child and attorney believes this will compel the court. let me fill in a little more detail to see if it helps the perception of what happened.
    It again comes back to the risk-reward analysis. Is the risk of criminal of civil prosecution outweighed by the benefits? If the answer is "yes" then go for it.

    But, to find out what kind of potential liability you might face - if any at all - you would need to consult an attorney that YOU engage or consult, and not the ex-wife's attorney.

    I did not mention that my mother was with me at the time and also saw all of this. she also has been provided key and is not presently on bad terms with my brother (though i suspect she will be if she has to get involved). she went to the house to pick up a check that my brother left for her. he knew she was coming to the home and had actually spoken to my mother on the phone while she was in the home. He does not, however, know that I was there.
    Then let mom take the lead on it. And even if she wants to stay out of it, if you go on the record with your observations she WILL be part of it. If you leave her out and it is later revealed she was there and you intentionally failed to mention her, your credibility goes into the toilet.

    I can only say that if this were my situation, I would be consulting an attorney before I said anything more to anyone.
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  11. #11
    justalayman is offline Senior Member
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    if you used the key in the manner expressly or implicitly allowed when you exchanged the keys, entering the house would not be illegal and taking your property would not be illegal.

    If you used the key in a manner not intended or at least understood to be within the intent, then you did trespass and as such, could be charged as such.

    That will not not necessarily cause the evidence seen to be unusable, especially in a civil case, such as child custody. I doubt that it would since the evidence is not going to be used for criminal charges but only for support to ask that some action (drug testing I would guess) be ordered by the court.

    and to bringing in any other party; unless you brother gave his permission, then that person is trespassing and you are aiding in the crime.

    as Carl suggested, you might contact an attorney about your possibly criminal liability but depending on the situation, you may have nothing to worry about that even.

    Has your brother noticed you retrieved your property? Has he said anything about it? Has he called the police?

    If not, I would suggest that any police report well after being aware of your entry and his knowledge of it would not be taken seriously as criminal act. His failure to act quickly after learning of your entrance would be seen as tacit approval.
  12. #12
    happyinorbit is offline Member
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    thanks for the clarification. Very helpful. He is still out of town. I dont think he would pursue any action against me because I came to retreive my belongings. He is too lazy to be bothered. However, if I provide the documentation to his ex wife and it comes up in court (which is the day after he is due to arrive from his trip)....that is when I think I should expect trouble. in any case, what you have stated certainly helps matters. I did not use my key. My mother used her key and I came along with her. My brother knew she was coming and had permission to enter the home. She knew the items I took from the house belong to me. She knows I have asked repeatedly for him to return the items. I think I feel better about this now. Thanks for all the advice.
  13. #13
    CdwJava is offline Senior Member
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    Then if SHE had specific access to the house, mother is going to almost certainly have to be brought in to this. I reiterate that you need to double check with an attorney to determine your liability here if you gather evidence for the ex or if you try and pretend your mother was never there.
    A Nor Cal Cop Sergeant

    "Make mine a double mocha ...
    And a croissant!"

    Seek justice,
    Love mercy,
    Walk humbly with your God

    -- Courageous, by Casting Crowns ... http://www.youtube.com/watch?v=pkM-gDcmJeM
  14. #14
    happyinorbit is offline Member
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    that is kinda what I am saying. i will have to say that I was there with her.. which I was. I was just hoping to get around it. As I mentioned my brother will only retaliate against my mother. probaly keep the grand kids from her for awhile and yell and scream at her. appreciate all the advice i recieved here today.
  15. #15
    Isis1 is offline Senior Member
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    Quote Originally Posted by happyinorbit View Post
    that is kinda what I am saying. i will have to say that I was there with her.. which I was. I was just hoping to get around it. As I mentioned my brother will only retaliate against my mother. probaly keep the grand kids from her for awhile and yell and scream at her. appreciate all the advice i recieved here today.
    As a mother, i'd take the retaliation if the end result was the child getting the help they needed, i'd report it. Then i'd kiss every inch of mom's butt so i can see my grandchildren on her time.

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