T Nation

Did The Cops Search Me Illegally??


#1

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.


#2

It was a domestic dispute, so they had to go in and make sure everything was ok.

--That's my guess.


#3

They don't sweep the entire house for domestic disputes. They probably already had a tip on him. His non-protest of them searching the premises allowed them to do so. Had he said "no, you can't search my house without a warrant", they would have had to obtain one to search his entire house. That is why you need to be aware of your own rights. They damn sure won't inform you of what rights you have if it benefits them for you to be ignorant of them. Calling 911 twice in one day is pretty damn suspicious as well. Hell, your brother may have told the police what was in the house.


#4

Let me stress first that i'm not a lawyer - so go see one.

Here are my thoughts, though:

Their search was legit because of the earlier (albeit cancelled) 911 call. There were two domestic situations in one day at that residence, so they needed to be sure that nothing else was going on there.

Secondly, although their search was legit, I don't believe they are allowed to coerse you (and they did coerse you) into signing anything, giving a statement or giving a confession. That's what your miranda rights are for, to protect you and give you the right to keep silent if you wish.

Third, if you ever get arrested again, don't say ANYTHING until you're with your lawyer. No matter what the Cop says, DO NOT TELL THEM ANYTHING.

Lastly, and just to clear this up, you're an absolute idiot for growing pot.


#5

I'll start - yep you are an idiot. The irony of the whole thing is that it is probably all the pot you are smoking that has fucked your brain! 40 plants - thats a lot for one person, you are probably a dealer as well. Be a man and take responsibility for what you have done.


#6

The events do appear to be HIGHLY indicative that the cops knew that I was growing; why did a caravan of 5-6 cop cars show up over a stolen wallet?

On the other hand...... it is next to impossible that they had been tipped off. My brother and I had a very clear understanding that NOBODY was to know about the grow. No friends, no girlfriends, no dealers, no customers, and sure as hell no cops. I didn't tell a soul, and, although I haven't talked to him since this shit went down (he is still locked up), I trust that he didn't tell anyone, either. Yes it is possible that the little fucker blabbed, but unlikely.


#7

No, I am not a dealer and I have never sold in my life. This was my first grow, and the reason we did it, in fact, was to be self-sufficient and avoid involvement with dealers in the future.

40 unsexed plants equals fewer than 20 plants after you remove the males and hermaphrodites(sp?). That was for my brother and I and our firends, and it was to last a while so we wouldn't have to grow again in the near future. We did not intend to sell.


#8

You should contact the ACLU or NORML to see if they can get you any legal advice.

Good luck.


#9

40 plants is probably real, federal, butt pounding prison. He needs to figure any way out of this he can.

As to the problem, here:
If your brother tipped them off, then they had probable cause to get a warrant and enter the home... which would mean they probably wouldn've already had a warrant, and wouldn't have needed you to sign anything.

It seems unlikely that they had any reason to believe that a crime was being committed inside the house. If your brother has priors for drug offenses, however, they were probably using this as an excuse to search his room and see if they could bust him again.

NEVER sign something without having a lawyer present. If someone tries to make it sound like a "limited time offer," then they are trying to SCREW you. Get a lawyer, ASAP, and let us know what he/she says. We don't know what, exactly, you signed, nor do we know what, exactly, you said to the police.

If your brother had priors and you had called earlier about a domestic dispute, that really might constitute probable cause for a search of the premises, which you may have tacitly approved by calling for emergency assistance. If you get a good lawyer, he/she may be able to convince the prosecutor that this was not clearly a legal search, and that rather than conducting a long trial, it would be easier to plead you down to possession and no intent to distribute. But honestly, I'm speaking out of my ass, here. Get a lawyer, ASAP.


#10

I am not a lawyer, but here is my fairly well-informed opinion:

If your account of the events is accurate, then the search was illegal. Reporting a domestic dispute does not give the police authority to enter your house without permission unless there is an emergency. Non-protest also does not qualify as permission to enter. A bench warrant definitely is not legal grounds to search a residence, even if the person named in the warrant is the owner of the house. They can only enter your house if they have a warrant or explicit consent, or if there are extingent circumstances which neccessitate their entry (i.e. an emergency). Barring any of those, the search was illegal.

Unfortunately, however, you are still far from off the hook. You are at the mercy of the police to produce an incident report that coincides with your story, and frankly that is extremely unlikely. They are not going to be honest about what happened if they committed such a flagarent violation of your privacy in the first place. And, even though it is clear (based on your account of the incident) that the search was illegal, your case isn't very strong because the story is too easily modifiable. It will be easy for the police to manufacture a version of the incident that will be reasonble-sounding enough to fly with most judges at a suppression hearing. They will probably say that you gave them consent or that you wanted them to go in after your brother (who they did discover at the house despite the fact that you told the 911 dispatcher that he wasn't there). And make no mistake, the judge WILL take their word over yours.

I highly doubt that you can beat this based on what you wrote. However, the fact that there is an issue with the search is a good thing, becuase you can use it to cop a plea bargain. The prosecutor doesn't want your case to go to trial because it will be a lot of work for him and cost the court a lot of money. So, if you can convince him that there is a chance that you could get your case kicked, he will probably offer you a deal.

Good luck


#11

Oh and depending on your state, you are probably not looking at PRISON time unless your case really goes bad (they stick you with intent to distribute, found guns at the residence, etc. or otherwise upgrade the charge somehow). 40 plants is a small grow op. It will be a felony in most states, but I doubt that you would get anything more than a matter of months in county jail. If this is your first offense and you do everything right, it's entirely concievable that you could get off with probation or a suspended sentence


#12

Sorry Neophorm - this is the attitude that sucks IMO, [heavy sarcasm] the problem is not that HE chose to grow 40 plants - no the problem is that he got caught! Solution - call the fucking lawyers and try to weasel out of it!

Did you ever stop and think that there is a reason why 40 plants might mean a trip to 'real butt pounding' prison as you so eloquently put it. OK, he says he is not a dealer, but who knows - down the track. Sounds like your brother might be the sort to try and sell the stuff down the track - he pinched your wallett for starters and it probably wasn't to buy early birthday presents. It is fuckwits like this (who do deal) that get innocent kids hooked on these so called soft drugs before they get stuck into the hard stuff. His brother sounds like a walking time bomb, and what is he doing to help, growing fuckin weed.

If he ends up in prison, then for each 'butt pounding' he cops he should remember why he is in there. Not his brothers fault, not the cops fault - it was his fault.


#13

A lot of these issues are state dependant...I don't suppose you'd care to tell us the state in which this occurred?

In California, an arrest warrant for your brother means the cops can go inside the house he lives in (regardless of who owns it) if they can establish residency. They can't search for contraband, only for the subject of the warrant, in this case your brother. When found, the cops can search the immediate area that the arrested person had access to possibly stash something. Other than that, there are very few exceptions to the need for a warrant to go into someone's house. Without a warrant cops need consent (obviously an issue here based on your account), exigent circumstances (which could be articulated based on the how the 911 call came in coupled with the prior call and any prior history of violence involving you or your brother), or they could articulate a need to go in based on evidence preservation, however a warrant would still be required to seize property. The fact that you were under arrest your consent was coerced, however I have seen similar cases not thrown out due to the rule of "eventual discovery", meaning if the cops were inside the house lawfully, even though your consent was coereced, had you not consented they already saw the contraband in plain sight and would've gotten a warrant thereby coming to the same eventual conclusion. The above is applicable in California.

There's also medicinal marijuana laws in California but that's another story entirely. Sorry for the rambling, it's late.


#14

Since this guy joined a bodybuilding/lifting site for the apparent sole purpose of asking legal advice about grow-op I have one thing to say:

TSB

Thanks.


#15

If you want the protection of the law, then don't commit federal crime.

Calling the cops was a monumentally stupid thing to do. All he did was nick your wallet and now because of your stupidity and complete ineptitude to deal with the situation you've landed yourself with a federal drug charge. They probably had a line on you anyway and then you gave them a great opportunity to get possibly the easiest drug bust they'll ever have.

This isn't a contructive post and for that I apologise, but holy shit you are one stupid mofo.

lmfao.

Growing large quantities of drugs = deserve what you get, in my opinion.

Stu.


#16

Clearly he is a member who registered a new screen name for the purposes of making this post.


#17

No the problem is that this govt deems it appropriate to legislate what substances an adult can and cannot put into his own body. That's the problem.

... that and the fact that you're a moron for involving the cops in this dispute with your brother in the first place.


#18

Just as they deem it appropriate to legislate what people can and can't do to other people. If it's a crime, for whatever reason the government decided to make it one, don't fucking do it and then bitch about getting caught. You knew it was illegal when you purchased the seeds in the first place.


#19

Grow pot in house. Debatably stupid.

Call cops from said house. Twice. Stupid.

Consent to search. Incredibly stupid.

Confess to cops. Beyond stupid.

Get a good lawyer. Plead to a lesser charge. Stay out of jail and do community service.

Never do it again!!!

I know there is a lot of discussion about pot on this forum.

As long as pot is illegal it is dumb to smoke it even if it is not too bad for you. The laws may be stupid but violating them can really fuck up your life.

I hope some people can learn from this poor guys mistake.


#20

If anyone on this site wants to grow his pot himself, PM me. I am very confident that I know how to do this without getting caught. Jesus.

40 plants, with a junkie next door....

Mwuahahahhahahaha...

And he is right 40 plants are around 15-20 females and since he probably has no idea what he is doing he would not have a yield of more than 150-200g which is enough to entertain his friends for a while but not more. This guy is definitely no dealer.