is this legal??

[crowman]

sunday march 19th three boys (age 10-11)came beating on doors. I told my son to see who that was, he looked out the window and saw three boys. He told me that two of them were trouble makers from his school, and he did not want to play with them. I told him to ignore them and they would leave. They did. About 15 min. later i herd voices comming from the kitchen area of my home. I went to see what was going on. As i passed the dresser i grabbed an antique replica black powder pistol which was not loaded. I went downstairs and as i rounded the corner i could see the back door was open 16-18 inches and the storm door was wide open. I pulled the inside door the rest of the way open, their stood a boy i had not seen before. I asked him if he was in the habit of walking into another mans home. The whole time the pistol at my side. He said he didnt, I told him to move on and that he didnt belong here. At this point his frend who had been midway down my driveway rode up and asked if my son was home. I told him no and i closed the doors. I watched the two boys leave my property. About 4 hours later the police called me on the phone. They told me they were looking into a complaint made by 3 boys and would i come out and talk with them. I said i would and proceded out my back door. The officers handcuffed me and told me i was not under arrest but that they would hear my side of the story. They told me they had a warrant to search my home for a silver pistol. At this point they called in swat who went strait into my home and took all my guns. They frightened my wife and two children. They questioned me in my kitchen, Then took me and my guns off to jail. I was not told my rights nor was i told the charges. They booked me into the jail and on munday the investigator took me to his office to get my statement. I still had no idea of the charges, but was told i could have a lawyer presant. Tuesday i went befor a judge and met with the lawyer my wife had goten,neather he nor I had herd the charges until the judge read them 2nd degree assult. It dosent seem to me that they acted properly. I am 50, years old a viet nam era vet. I am also a foster parrent licensed by the state of minn. But they take the word of 3 boys ( one of which was not even on the property at the time) over mine. I have had to mortgage my home to get the money to pay a lawyer to defend myself against the lies told by these lads. what say you? did they do right? Thanks mike

 

[crowman]

is this legal by crowman should in no way be confused with is this legal by big tex. now on page 1. crowman

 

[lawrat]

I am a law school graduate awaiting Bar results. What I offer is only information and guidance not to be construed as forming an attorney-client relationship.


1. The police cannot enter your home without a valid arrest warrant -- they must show it....apparantly they did not, which leads me to believe it was an illegal arrest.

2. They also need a search warrant, if they do not have a proper arrest warrant or they were not in hot pursuit and they were searching other areas of the home that they weren't supposed to go to. Meaning, if they were arresting you and searching for a gun, they cannot look more if they found THAT gun.

3. You have the right to a court appointed attorney/public defender or payment from the public fund if you choose to get a private atty. you also have the right to change attorneys at any time.

4. you have an action against the boys who entered your home (trespass and potential felonies -- burglary which is defined as the break and entering a dwelling house with the intent to commit a felony therein). the felony here sounds like a battery and assault against your son or quite possibly anyone in their way.

5. You have a right to keep a deadly weapon and use a deadly weapon (here you did less than that-just brandished it) within your home. It is called a defense of habitation and should be considered a complete defense. That is how I understand the law to be.

I suggest immediately contacting a criminal defense attorney in your area at attorneypages.com and go from there. you need to clear your name and record.

 

[jd]

I am concerned that someone represented by counsel in a criminal matter would seek advice beyond the attorney-client privilege. Your attorney is in the best position to evaluate your situation and determine if an illegal arrest has occurred or if you consitutionla rights were in any way violated. Seeking advice from laypersons or other attorneys could be misleading to you, especially when the persons you are seeking the advice from have not had an opportunity to review all the documents and evidence. I suggest you address any issues you have with your consel of record, creating an open and honest attorney-client relationship that will allow you to assist in your own defense.

 

[lawrat]

i agree with jd, however, i must add that if your counsel of record still does not whole heartedly and zealously represent you, your representation is not complete.

You must maintain honesty with your atty, but you also shouldn't sit back and not be an active participant in your own defense.

 

[crowman]

The first attorney i had did little, he did get my bail reduced. His next plan was to sit back and wait for the d.a. to offer a plea. This was not my idea of defense. I have a different attorney now and have checked her through martendale- hubbell. she is not from this county and seems to be doing a good job. The main reason i came to you people is that i beleve knolidge is potential power. What you do with the knolidge you have is the power. If you do not have info on a matter you must seek. thank you for your input. crowman

 

[Tracey]

A number of comments:

1) Most states give a person an absolute right to defend their home from intruders. Some states do not allow the homeowner to use deadly force unless s/he is presented with deadly force. It's a self defense argument. However, since you didn't even point the pistol at the boy, you weren't using deadly force. That should dispose of the assault charge.

2) While it's true police need a warrant to arrest you in your home, you gave up that protection when you stepped outside. The arrest was valid.

3) You might lose the guns if you don't have a license to own a gun. You should also check whether antique guns are covered under the law and whether you had to register them. OTOH, if you get the warrant quashed, you might get them back because they were illegally siezed.

4) CrR 3.6: The search was facially valid, since police had a warrant. However, you may be able to get the warrant quashed by arguing that there was insufficient evidence of a crime, as using a gun to get a trespasser to leave your house is legal. Have your lawyer review the warrant application closely. If the warrant is thrown out, all evidence following the warrant (the guns and maybe your statements to police) are thrown out too.

Next time you chase someone out of your house with a gun, CALL POLICE and file a report!

5) CrR 3.5: I believe the questioning in your kitchen was unconstitutional. Police must give you Miranda warnings before a custodial interrogation. You were in custody the moment you were handcuffed. Any statements you made in the kitchen OR SUBSEQUENTLY AT THE STATION should be excluded under the 5th amendment.

6) You might be able to get your attorney fees paid by the State if you win on your self defense claim. Check your state laws.


In future: NEVER talk to police without a lawyer. It cannot help you and almost always hurts you. (All that stuff on NYPD Blue about how 'we can't help you once you call a lawyer' is BS. The cops have no power whatsoever to help you. Only the DA can do that.) If police don't Mirandize you, it's because they are going to argue that you weren't "in custody." If they don't Mirandize you, ask them, "Am I in custody or am I free to leave?" If they say you can leave, leave. If they say you can't leave, say nothing other than "I want a lawyer." It's your mantra. Repeat it as often as necessary.

When police claim they have a warrant to search, demand they show it to you. Don't step outside -- stand in the doorway and make them hand you the warrant. (Have them shove it under the door if you can.) Read it carefully. Make sure they listed your name and address correctly. If the warrant authorizes them to look for a shotgun, they can't look anyplace that's too small to conceal a shotgun. If you recognize the item the warrant lists, inform police that you will be happy to get it for them. They may decide to send one officer in with you to pick it up to make sure you don't also grab a weapon to use against them. (This avoids giving them opportunity to 'search' the house looking for the item.)

When cops ask you for consent to search, it means they don't have enough evidence to get a warrant. Never consent to a search.


Enjoy these tidbits of knowledge from a part-time prosecutor......

Tracey

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This is not legal advice and you are not my client. Double check everything with your own attorney and your state's laws.

[This message has been edited by Tracey (edited April 18, 2000).]