Weapons, Guns, Firearms can they do this

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cali4niagirl420

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Im having back surgery and will be in the hospital for several days. My boyfriend who is a parolee has gotten together with my mother and was at my home painting and cleaning up my home for me to come home from having major back surgery. Police come knocking at door stating they are there on a disturbance call this is not likely since I have no neighbors to complain and as I stated he was painting not throwing a party. It was when they asked for him by name that he closed the door and got his cell phone out and called me. I told him to leave the phone on and go outside shutting the door behind him which he did. They placed him under arrest and a female officer got on the phone I identified myself as the home owner and she asked if I would give my permission to go into my home and search I REFUSED! They continued to try to convince me that it would be in my best interest to allow them to search and I still said no. They went into my home and had the fire dept. come out so that they could search my attic which they found a shotgun. Now theyve charged him as felon in possession of weapon plus more and have scared him into taking a 3 yr 8 month violation. My question is at court they told my boyfriend that I okayed the search which is false. He was out of the house when placed under arrest. How is it they can lie and get away with this ? Is there anything I can do to pursue the misconduct of the officers and possibly get these false charges dropped of the boyfriend
 
You can certainly look in to it, but parolees have special search terms, and we don't know exactly what was said.
Get yourself a copy of the police reports from this incident, review the officer's explanations for the warrantless search, and make a formal complaint to the agency if there are discrepancies.
You weren't present and they didn't try to pin anything on you... so you really don't have any argument to make in the way of violation of rights. Your boyfriend, however, may be able to assert that the search of the house was illegal, which you could support with your statements, and anything found in the search that is being used against him could possibly be withheld.
Just curious though... if it is your home (assuming he doesn't normally live there)... why are they accusing him of possession of the shotgun? It was your attic, not his.
If he has been staying there though... that changes things.
 
You are a little lat in asking the question if he has already taken a 3 year 8 month violation. However, with all due respect to Moose and CDW, the police lie on occasion just like anyone else. If you boyfriend lives there, the shotgun could possibly be a problem for him because it is technically under his control. If he doesn't live there and was just painting, he isn't responsible for anything in the house. With the 420 in your name I'm surprised they didn't find some of that and try to pin it on him.

His attorney should get a continuance until you can be present to contradict the other testimony. Please clear up some of the holes in your story and Ill try to be more specific.
 
More Questions Than Answers!

I really don't mean to be sarcastic or crass here, but this scenario has more holes in it than a chunk of Swiss cheese and is more ambiguous than a presidential candidate's campaign speech, because every time I read the post over, I came away with more questions. But the two questions that stood out most in my mind were: Why would she tell him to leave the house and lock (or shut) the door behind him, and why search the attic?

The way I see it, is that the police were there to pick him up (arrest him) because he had already violated the terms of his parole, which is why he was arrested when he stepped outside and locked the door behind him per your advice. Because you knew that as a felon on parole, your boyfriend is also a "Fourth Waiver" which makes his person, house, and effects subject to warrantless search at any time. You also knew that a person's Fourth Waiver attaches to any vehicle or structure (home, office, etc) he happens to be in, whether his own or not.

Another point to ponder was the reason the police did not leave after making the arrest and were hell bent on searching not only the house, but the attic as well. And this is where the act of closing the door on the police comes in to shed some light on the matter.

Closing the door on the police who are only making inquiries and holds no warrant for entry is not a criminal act in and of itself. In fact, you can not only refuse to open the door to them, you can even instruct them through the window to get off your property. But when your boyfriend stepped out and identified himself, he was arrested for parole violation and a search of the house became inevitable retrospectively based on the time period between closing the door on the police and stepping out and closing it.

The police suspected that the period was used to conceal or destroy any incriminating evidence, and your boyfriend did not disappoint since he closed the door on the police in order to go up to the attic to hide the shotgun which he had with him in the house. The gun was not yours to begin with because you said the police found "a shotgun" and not "a shotgun that belongs to me" and I suspect your boyfriend was charged with that offense when fingerprints on the shotgun came back to him.

Now, I highly agree with Jharris in that some cops do indeed lie, and I will go further and say that some of them are not averse even to filing false reports, fabrication of evidence, and even the occasional planting and framing. But it does not make sense in this instance for them to lie about you being the one who gave them permission to search the house because it is just too easy to disprove by way of your statement to the contrary. Which brings us to the main question: Can they do this?

You said that he is being cajoled into taking an offer of 3&8; such offers are made by the D.A.'s office at the Trial Readiness stage, which is the step after arraignment and bail hearing and it sounds like he did not accept this offer. So, next stop is Evidentiary Hearing in which the judge decides if there is enough substantial evidence to set the case for trial; you should and must appear for the defense and deny giving consent for the search which will effectively end the case on the basis of Illegal Search and Seizure.

Next to last point: If you did not give consent for the search and the police entered anyway, then the entry was by force and you did not mention any broken front door or lock, or a broken window or any other sign of a forced entry. But you did mention your mother was in the house painting at the time the police knocked on the door; could it be that she was scared into giving consent to search the house? Where was she when all this was happening?

And finally; fire department does not help law enforcement conduct searches of a premises, but can be called to a situation where the police suspect that the evidence in question might be, or contain chemically hazardous material! The kind found in…

fredrikklaw
 
mightymoose said:
You can certainly look in to it, but parolees have special search terms, and we don't know exactly what was said.
Get yourself a copy of the police reports from this incident, review the officer's explanations for the warrantless search, and make a formal complaint to the agency if there are discrepancies.
You weren't present and they didn't try to pin anything on you... so you really don't have any argument to make in the way of violation of rights. Your boyfriend, however, may be able to assert that the search of the house was illegal, which you could support with your statements, and anything found in the search that is being used against him could possibly be withheld.
Just curious though... if it is your home (assuming he doesn't normally live there)... why are they accusing him of possession of the shotgun? It was your attic, not his.
If he has been staying there though... that changes things.
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Dear Mightymoose , All this is true, he lives with his parents which is per his parole and it was before 9:eek:o pm that this happened even still I think that even a parolee can spend the night somewhere lol all kidding aside, as you stated it is my house and everything in it including him I told them was mine and I continously refused them the right to search and spoke to a male and female officer. Regardless, when my boyfriend was shown the reports they stated that I okayed the search!!!!!!!!!! This added to his priors alone caused him to accept the deal offered to him of 44 months since the 13 years they threatened to charge him with if he should loose. Now if you could answer me this........ Is there anything I can do about them LYING I never never ever said it was ok. As I said it sad I had no idea he was there it was to be a suprise to me to come home to a freshly painted clean house and for his simply caring about me and wanting to make it nice for me he has to do this. Im totally heartbroken. Thank you for you response.
 
jharris352 said:
You are a little lat in asking the question if he has already taken a 3 year 8 month violation. However, with all due respect to Moose and CDW, the police lie on occasion just like anyone else. If you boyfriend lives there, the shotgun could possibly be a problem for him because it is technically under his control. If he doesn't live there and was just painting, he isn't responsible for anything in the house. With the 420 in your name I'm surprised they didn't find some of that and try to pin it on him.

His attorney should get a continuance until you can be present to contradict the other testimony. Please clear up some of the holes in your story and Ill try to be more specific.
Click to expand...

Thank you for your response. As I stated he does not live with me, its way to soon for that, we've only been together for a few months. Funny you should mention the 420........... Just to clear things up while online I've often been asked my a/s/l so........cali4nia=location girl=sex 420= my birthday I was unable to put down the year I was born because it would be to many characters but I understand where you might think it stood for something else. As to my situation, the police report shown to him in court last week showed that I said it was okay to search, with that and his priors and having no trust in our justice system he took the deal offered to him of 44 months. I'm completely heartbroken and here at home with a half painted kitchen and 15 hrs of titanium rods and screws keeping me from doing much about it. I wish I knew how to prove that I never okayed the search and that they provided false information but I was in a hospital room alone when he called and have no witness to this. If I knew how to pursue this I would but Im afraid Im just in to much pain both physical and mental to do anything at all. But again, I Thank You for your response
 
It really doesnt matter because when brought into court the police report shown to him stated that I okayed the search, this is a false. I told him to go outside and shut the door because of my pets my bulldog and siamese cat and feared that they would somehow become a problem thinking I would call my sister to go and make sure they were okay while I stayed in th hospital. After a 15 hour all level spinal fusion I'm actually suprised I managed to give any sort of advise to be honest but unlike the officers involved I was being honest and that is what I said! He has a residence and it not with me mainly because we have only been dating a short time and I think its too soon to be jumping into that regardless with the evidence shown to him in court and his lack of trust in our judicial system he took the 44 months they offered, I guess the 13 yrs if he was to loose seemed like a long to him I imagine it would to anyone. So Im home now with a half painted kitchen trying to get over this surgery and he's headed somewhere for something he honestly had nothing to do with I wish they tried to get fingerprints because that in itself would prove he never touched the gun. I wish I could do something that could be done to the officer who lied as to my giving permission to search. Its sad that one who is supposed to be the one who enforces the law chooses to break it I guess there really is no justice and as far as laws go what does it matter when police break the laws as much as the would be criminal. Anyways. I Thank You for your response
 
Police can't get permission to search a home via telephone. If anything, they were playing games with your boyfriend. They will say something like "we took parolee's phone and spoke with a female on the other end. From what she told us, we were even more suspicious of parolee." Maybe not exactly like that, but you see my point is the police use every shred of information against you (or him). What works in court: You need to provide your leaseholder/owner information during the time of arrest to prove you were the owner and your boyfriend was not sharing residence. Also, prove that your boyfriend is a leaseholder/owner of his own residence. Based on this, the police now never had permission to enter the home.

However, like stated somewhere above, people on parole have no 4th amendment. If police thought that he was hiding something inside the house, and the homeowner was not around to vehemently keep the police out the home - they will say they had a right to search an area of wingspan of the parolee. Like, if he was in the foyer for a few mins before walking outside to the police, they can check that foyer for contraband he may have discarded. I really don't see them having ANY right to go inside the attic unless they had a tip - in which case they would have arrived with a warrant based on the tip.
 
All because YOU say he does not live there, if there is sufficient evidence to show he DOES reside there, and he has self-admitted to living there on some other document or enrollment papers, then your residence could be treated as his.

Now, since you seem to have the police report and it says you gave consent, if it does not argue his 4th waiver status, then that justification may be out the window. At this point, if your parolee boyfriend chooses to reject the deal, his attorney can always file for a motion to suppress the evidence as a result of an unlawful search.

As was previously stated, there was some reason for them to believe something was in the attic ... I strongly suspect there is more to this than meets the eye, and if there is, then going to trial might be a bad idea.
 
ananas238 said:
Are you serious? How do they know who's on the other end of the phone?
Sounds like it would be overturned in a court. Explain how they do this.
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There are a number of ways to verify it. If you know the voice on the other end, if you have one or more people identifying the person on the other end as the homeowner or responsible party, etc. Of course the person spoken to can always go to trial and testify that they never spoke to the police, but when the prosecutor produces phone records showing the call the person might face a perjury beef.

Consent in any form is subject to dismissal. The more information the officer provides to verify the identity of the person he or she is speaking to helps, but is not required. I have been at this for nearly 19 years and have spoken to people over the phone for all manner of things - including consent - without any problems. There is no law preventing it, and unless the person allegedly spoken to takes the stand and denies the conversation, it can be good. In this case, we do not have a denial of the conversation, only a denial of what was said during the conversation. That will be the issue at trial.

This is why I always try to record requests for consent - even if over the phone (my recorder has a sensitive mic, and most cell phones have speaker functions anyway). It is hard to argue with a recording.
 
ananas238 said:
Are you serious? How do they know who's on the other end of the phone?
Sounds like it would be overturned in a court. Explain how they do this.
Click to expand...

Police in the field place a call to an on-call judge, explain the situation and reason for the search, and obtain a verbal green light from the judge. After the search the police follow-up with a written request for the warrant which states the same information previously given over the phone along with the warrant return.

When the judge reviews it he will see the same information that was provided verbally and will sign off.

The typical procedure is to freeze the house and go find a judge to sign a warrant request, but that is not always practical, sometimes due to time constraints or location. In the area I work it would take an unreasonable amount of time to get a written document to a judge for signature. Telephonic warrants are common, but not used unless absolutely necessary.
 
As MightyMoose said, there are times when such a warrant is necessary for expediency. A typical warrant might take a MINIMUM of four hours to prepare, have reviewed by senior officers and a DA, then be signed by a judge. That is a long time to stand a perimeter or run the risk of evidence being destroyed or compromised if the location is not yet secured. A telephonic warrant must later be supported by documentation, but it has the virtue of immediacy.

One such example was a case run by the feds when I was in so. cal some years back. They had a search warrant in one city for two locations in San Diego. They served the warrants and seized one of the suspects (a Russian). Unfortunately, the booking staff at the jail did no keep him away from a phone in the holding cell and he made a couple of calls, allegedly to companions in neighboring cities. Evidence found at the first two sites served indicated that additional evidence would be found at these two additional locations, but the phone call made by the suspect in custody made time a crucial factor. So, while they were traveling north on I-5 they were on the phone to local police to secure the perimeter of these residences in two cities and seeking telephonic search warrants to justify no-knock search warrants of the two additional locations.

Had we not had those warrants, it is very likely that a Russian fraudulent document outfit would have gone on. As it was, half the suspects were rounded, the others fled leaving their families behind to take the rap and get deported ... wonderful guys.
 
They had no warrant said they were here on disturbance? Better still when boyfriend was showed police report in court it stated that I (female on phone however they worded it) approved search. Regardless fearing no chance of proving his case (ex. felon word vs officer) he took the 44 months at 80 percent. I'm still mad over them lying about what I said. I have a great respect for law enforcement but I have to admit it is dwindling as this goes on. They are still messing with him in that I have to fill out a approval form to visit and 1. I've never been convicted of a felony 2. the misdemeanor I did commit happened 5 yrs ago this month oh yeah public records show the misdemeanor I plead not guilty and charges dismissed. There more as to his parole officer visit with him in jail and threatening him but just try to prove this. Shame the one who is serving the law has to break it. I think having the fire dept come out so they could use a ladder proves the lack of accessabilty. bottom line he's gone for atleast 2 1/2 yrs
 
It is not uncommon for people to give consent to search without realizing they have done so. It can be a little tricky, but is not necessarily illegal. This was a situation that had a lot of variables and there is really no way to know what was said, who said it, and who took what action based on what information. The people involved have a lot more info than we do. I would be a lot more concerned if your boyfriend was insisting he was innocent and was getting railroaded... but all signs point to him having full knowledge of the weapon, that is was most likely his, and that the police had another source of information that told them where to find it.
Getting your consent would have made things much cleaner, but they did not necessarily need it due to his parole status.
If there was a significant issue here regarding an unlawful search I doubt his attorney would have allowed him to take a plea deal without addressing that issue.
 
Thank you for your response, I've made all of these same arguements and wanted to fight but when faced with 13 yrs if the case went to trial and he lost he opted for the 44 months at 80%, he has no trust for the judicial system so I can't fault him. So you know I have found where the gun came from and truely he had no knowledge of it and was at my home trying to make my house nice for me to come home to after having spinal surgery, he had conspired with my mother to do this as a suprise for me I had no idea he was at my home doing this until the night he was arrested. I appreciate you sightful response to my post. Thank you,
 
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