T-Nation: I find myself in a legal bind tonight after getting out of jail a few hours ago. On Saturday I was arrested for growing marijuana in my home, and I think that I may have been searched illegally. I know that I need to talk to a lawyer, but I won't be able to do so until I can get some money (proably a week), and I am anxious to get opinions on this. So, here is my story:
I share a house with my brother, who has a problem with hard drugs and has been totally off the wall lately. The other night we got in a fight that ended with him stealing my wallet and fleeing the house on foot, and I subsequently called the cops on him. I stress that I had NO intention of letting the cops into the house; I simply wanted them to pick up my brother and recover my wallet.
So I called 911 from my cellular phone and reported that my brother had stolen my wallet and run off on foot.
I told the dispatcher that I didn't know where my brother had gone, but I was very clear that he was no longer at the residence. During the call, the dispatcher asked me if I had called 911 earlier in the day and reported that my brother had struck me. I confirmed that I had done so, but clarified that I had cancelled the call and that no police intervention was necessary.
After making the call, I walked roughly 50-100 meters up the street as to meet the police away from the house. Between the time that I called 911 and the time that police arrived, my brother returned to the house. When he arrived, I stayed up the street as to meet the police and keep them from coming to the house.
Shortly thereafter, approximately five Sheriffs units pulled up to my location. I stuck to my original story and told them that my brother had stolen my wallet and fled the house. I did NOT tell them that he had returned to the house. I wanted to keep them from entering the house for obvious reasons.
After taking note of my complaint, the deputies started walking toward my house. I asked what they were doing, and one of the deputies replied, "We need to see what's going on inside the house." I told them that there was no need to enter the house because nobody was there. I asked the deputies if they were sure that they had to enter the house, and they insisted that they did have to do so. They did not ask for my permission to enter the house, and they neither informed me that they needed permission to enter nor that I had the right to refuse them entry. They simply stated that they had to enter the house and proceeded to do so without permission.
As we approached the house, one of the officers who had been to the house before pointed at two windows and asked which room was mine and which was my brother's. I told them that the room on the left was mine, and the room on the right belonged to my brother.
When we entered the house, the deputies immediately went upstairs and entered my bedroom. I told them that the room was mine, that my brother wasn't in there, and that they didn't need to enter that room. The deputies insisted that they had to "sweep" the premises, even though they had not done so downstairs. They yelled
"SHERIFF'S DEPARTMENT!" as they moved from my room to the adjacent bathroom, and from the bathroom to the spare room which housed 40 cannabis plants. OH SHIT, I thought to myself.
A minute later the deputies placed me under arrest and read me my Miranda right. At this point they informed me that I could either sign consent for the police to search or that I could refuse to do so and force the deputies to call the judge for a warrant. They told me that if I refused, they would simply stay at the house until they obtained the warrant, which they assured me that the judge would issue. I told them that I didn't know what to do, because I wanted to be cooperative, but I didn't want to sign my life away. The deputies told me that I was going down either way, and advised me that my cooperation might "score points? in court. One of the deputies also emphasized that that my parents (who own the house, but do not live there) could bear responsibility in the situation. He told me that, because marijuana was growing in their house, that my parents could be arrested and their house could be seized. He did not explicitly threaten to arrest my parents if I didn't sign consent, but I felt that this was the underlying implication. I felt that he was telling me that my parents would be less likely to face penalties if I signed. So I decided to sign consent to search.
After signing, I answered all of the deputies' questions at the scene: I told them that I had purchased seeds on the internet, that I obtained my growing equipment from the a particular hydroponics shop, that I had been growing for approximately 2-3 months, and that I had sought growing information from www.overgrow.com, among other information. I took full responsibility for the grow operation and admitted to everything on the spot.
It would seem that the cops have my nuts stapled to the wall. But, while reflecting on the events in jail, I realized that their entry into my house may have been unlawful, though I am not sure. They didn't have a search warrant, and they didn't have consent to enter. They may have had some kind of probable cause on the grounds that I called the police from my house, but that is questionable given that I reported that my brother had fled the house on foot. Another factor complicating the situation is that, unbeknownst to me at the time, my brother had a bench warrant out for missing a court date. This would allow them to arrest him, but I'm not sure that it would allow them to search a residence for him, particularly one that he doesn't own. This would be equivalent to searching a third party (my parents), which I would think would be illegal.
And, if I am right that their entry was illegal, then they only gained my consent to search as a result of prior misconduct, and my signature might be considered "fruit of the poisonous tree". If so, then the case should be thrown out.
My questions are:
1) Was the cops' entry illegal due to the fact that they neither had a search warrant nor consent to enter?
2) Does the bench warrant give them the right to search my house without consent?
3) If the entry was illegal, is my consent to search negated??
Do I have a chance to beat this??
I fully expect to get flamed for all the stupid things I did leading my arrest: calling the cops on my brother (please don't take this at face value, you don't understand the situation with him), calling the cops to a house in which I was growin pot, and signing consent to search. all I can say in my defense is that it was a very emotional situation, it happend very fast, and I didn't know how to handle the cops. I didn't even know that I had a right to refuse them entry into my house. So lets just pretend that I already feel stupid enough, and that there's no need to expound on it.