Is this a legal search?

What is the name of your state? AZ

MY home was broken into around the 6th of December. I came home while it was in progress. I was able to retain one of the intruders while waiting for the cops. Once the cops arrived I entered the home to take an inventory of what was stolen. While doing the inventory I found another intruder in my closet. I yelled for an officer to come make the arrest. At that time the officer found drug paraphernalia. The cop questioned my fiancé who stated it was mine. The officer confiscated the items.

Today I received a summons to appear. I never gave the officer permission to search my home. The intruder took the items from a chest in my closet. Before that they were not in plain view. After finding the items in my closet the officer searched the rest of the house and found two more items in a shoebox in my garage.

Do I have any chance of getting the charged dropped due to an illegal search and seizure?

Q: Do I have any chance of getting the charged dropped due to an illegal search and seizure?

A: I am assuming the dope stuff was in the closet where the intruder was; you invited the cop in. He was on your premises at your request and because a crime was being committed. Thus, there is no search.

Now, you don't give specifics on the rest of the stuff, but since the cop was there legally and he arrested you, the rest of the stuff could be considered to have been gotten under a search incident to an arrest.

In other words, you are going to be hard pressed to convince a judge that you wanted the cops there to protect you but while they were there they could only look in certain places.

Bottom line: Get a lawyer and file a motion to quash.

senior judge said:

Q: Do I have any chance of getting the charged dropped due to an illegal search and seizure?

A: I am assuming the dope stuff was in the closet where the intruder was; you invited the cop in. He was on your premises at your request and because a crime was being committed. Thus, there is no search.

Now, you don't give specifics on the rest of the stuff, but since the cop was there legally and he arrested you, the rest of the stuff could be considered to have been gotten under a search incident to an arrest.

In other words, you are going to be hard pressed to convince a judge that you wanted the cops there to protect you but while they were there they could only look in certain places.

Bottom line: Get a lawyer and file a motion to quash.

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Thanks for the reply. I am talking to a lawyer on Wednesday, however I know people who have burned by putting all their trust in a lawyer. (no offense)

I know that if they were there legally, since I asked them to make an arrest. And I know that while in the home they don't need a search warrant if its in plain view but that leads me to two questions.

1) Considering I told the cop exactly where the person was, why was there any need to search at all?

2) I didnt have the items in plain view, the intruder did. Wouldn't that now make them his not mine? (I know you can't answer for sure)
I know you dont have to leave a store to be arrested for shoplifting. Why does he have to leave my house before its considered his?

Is there any on line site that has case law I could look up. I have a couple months till I have to appear in court, and would like to educate myself as much as possible.

BTW....Not sure if this makes a difference, but I was never arrested. Just got this letter out of the blue.

Thanks again

1) Considering I told the cop exactly where the person was, why was there any need to search at all?

A: Oh, come on....


2) I didnt have the items in plain view, the intruder did. Wouldn't that now make them his not mine? (I know you can't answer for sure)

A: You're right; I can't answer for sure.



Q: Why does he have to leave my house before its considered his?

A: It's never considered his.





I do find it interesting that you call him/them "intruders". This means they were your dope buddies, right?

seniorjudge said:

1) Considering I told the cop exactly where the person was, why was there any need to search at all?

A: Oh, come on....


2) I didnt have the items in plain view, the intruder did. Wouldn't that now make them his not mine? (I know you can't answer for sure)

A: You're right; I can't answer for sure.



Q: Why does he have to leave my house before its considered his?

A: It's never considered his.





I do find it interesting that you call him/them "intruders". This means they were your dope buddies, right?

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Yeah I had my "dope" buddies arrested. And they just went along with it???

I can see why you spend all day on here. lol

I guess its those that can do, those that cant type.

PhxGuy520 said:

MY home was broken into around the 6th of December. I came home while it was in progress. I was able to retain one of the intruders while waiting for the cops. Once the cops arrived I entered the home to take an inventory of what was stolen. While doing the inventory I found another intruder in my closet. I yelled for an officer to come make the arrest. At that time the officer found drug paraphernalia. The cop questioned my fiancé who stated it was mine. The officer confiscated the items.

Today I received a summons to appear. I never gave the officer permission to search my home. The intruder took the items from a chest in my closet. Before that they were not in plain view. After finding the items in my closet the officer searched the rest of the house and found two more items in a shoebox in my garage.

Do I have any chance of getting the charged dropped due to an illegal search and seizure?

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The officer had a lawful right to be in the home - you invited him because you had been the victim of a burglary. The officer found the dope stuff in plain view or incident to the arrest of the burglars. The fact that the dope was removed from hiding by the crook is irrelevent, it's now in view and now fair game for the cops.

Additionalyl, when you are a victim of a burglary, frequently the cops ARE snooping around the house ... we look for this little thing called "evidence" ... how did they make entry? Did they leave evidence? Are there any other suspects? And so it goes.

If the dope or paraphernalia was foound on the burglar and he said he stole it from you, then the cops have a right to inquire further. When your fiance' confirmed the stuff was yours, then there was probable cause to arrest you for the paraphernalia. In fact, the officers could arrest you and the burglar for possession fo the same paraphernalia.

Hire an attorney and work ona plea deal. If you are eligible, you can probably get drug diversion and avoid an arrest record.

These kinds of cases are the ones that cops and DAs talk to their peers about ... like the time a guy called to report that his marijuana plants had been stolen ...

- Carl

CdwJava said:

These kinds of cases are the ones that cops and DAs talk to their peers about ... like the time a guy called to report that his marijuana plants had been stolen ...

- Carl

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http://www.wxyz.com/news/story.aspx?content_id=34c749cd-cb81-4dea-8461-babd2508b53b

I can understand the plain view argument for the items the intruder had. But once the cop identified it, isn't it necessary for him to take control of the evidence and then secure a search warrant for the rest of the house. The additional items found should be suppressed. If that stuff is suppressed, the DA still needs to demonstrate that the drug paraphernalia belonged to the residents and not the intruder - but sounds as if the OP and/or his fiance have already acknowledged that.

The items in the shoebox in the garage might be subject to suppression ... but, there may be an exception here. Perhaps the fiance gave permission (assuming she had the right to do so), or perhaps there was some other justification or consent. But, at best it might only reduce the number of counts of possession of paraphernalia.

- Carl

You Are Guilty said:

http://www.wxyz.com/news/story.aspx?content_id=34c749cd-cb81-4dea-8461-babd2508b53b

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Wonderful.

I guess I should have just let the punks go, and made the cops go looking for them. I chased down one of the morons that came running out of my house so this would not happen to someone else. And was kicked and punched in the process.

What do I get for my problems? A record.

What a country.

Yeah ... go figure! It's the system's fault that YOU had dope paraphernalia in your house!

I don't suppose kickin' the dope habit has crossed your mind, has it?

And just WHAT would you tell the cops was stolen? Your valuable glass pipe collection?

- Carl

Like Carl said, the pipes or whatever that were found in the closet with the burglar you're stuck with. The police were legitimately, lawfully in your house, and they were in plain view. If you want to blame anyone (other than yourself), blame your girlfriend. If you want to go to court and argue the paraphenalia wasn't yours, go ahead. But there's no suppression issue there.

The stuff that was in a box in the garage is another matter. But it's not likely to make a difference, since you're in possession either way.

If we're just talking about paraphenalia here, most likely you're looking at a fine. Considering the whole scenario, that's a relatively benign outcome, imo.

Kane said:

Like Carl said, the pipes or whatever that were found in the closet with the burglar you're stuck with. The police were legitimately, lawfully in your house, and they were in plain view. If you want to blame anyone (other than yourself), blame your girlfriend. If you want to go to court and argue the paraphenalia wasn't yours, go ahead. But there's no suppression issue there.

The stuff that was in a box in the garage is another matter. But it's not likely to make a difference, since you're in possession either way.

If we're just talking about paraphenalia here, most likely you're looking at a fine. Considering the whole scenario, that's a relatively benign outcome, imo.

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I came here looking for advice and I seem to be getting a lot of judgment passed on me. I don't have a "habit", and I am not some junky. I am educated, volunteer my time, and I am raising two kids who are constantly praised for their behavior. I don't drink alcohol. And make well above the median income in my state.

As for it being benign I don't know. Lawyers want to charge me 5 grand just to "try" to get it thrown out. 2500 just to get me a class. Other tell me not to get a lawyer, which seems scary, but based on the charge doesnt seem to crazy, but I have no clue. Add to that the $750 or more just to take the class. I will now have this on my record which means someone who very dearly loved working with kids no longer can.

That seems crazy based on the offense, when I bet the average person has no idea how or why marijuana became illegal in the first place.

I guess thats my rant...Now I think I will light up a smoke and see if I can give my loved one some second hand smoke lung cancer. :/

PhxGuy520 said:

I came here looking for advice and I seem to be getting a lot of judgment passed on me. I don't have a "habit", and I am not some junky. I am educated, volunteer my time, and I am raising two kids who are constantly praised for their behavior. I don't drink alcohol. And make well above the median income in my state.

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You are jeopardizing your kids and setting a bad example by doing illegal drugs. Alcohol is legal, drugs are not. Clean up your act! You may consider it benign, but by and large, us parents do not want you druggies working with our kids.

Other tell me not to get a lawyer, which seems scary, but based on the charge doesnt seem to crazy, but I have no clue. Add to that the $750 or more just to take the class. I will now have this on my record which means someone who very dearly loved working with kids no longer can.

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I don't know who "Other" is, but it sounds like in your situation, an aggressive defense by the best lawyer you can get (even if you have to borrow money to get him) is your best answer.

That seems crazy based on the offense, when I bet the average person has no idea how or why marijuana became illegal in the first place.

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How is that the least bit material? I know exactly how it became illegal. I know how alcohol became legal. I know the moral as well as legal implciations of both. You apprently are in denial. Ok, the save yourself $5000, plead guilty, and keep your stupid-assed behavior where it can't corrupt children.

I guess thats my rant...Now I think I will light up a smoke and see if I can give my loved one some second hand smoke lung cancer. :/

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Better yet, go get your BAC up to .50 and run into a tree.