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unlawful entry search asnd seizure

Discussion in 'Constitutional Law & Civil Rights' started by michaelalmond, Apr 3, 2008.

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  1. michaelalmond

    michaelalmond Law Topic Starter New Member

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    west virginia-
    can police rely on a report from a neighbor that a residence is unoccupied to justify forceful entry search and seizure without taking any other investigative steps to determine the state of a residence? are they not required to make contact with the occupant and try to talk to him/her prior to using force to enter and engage in warrantless search and seizure?
    no crime was commited or charges filed.
     
  2. Scooterdog

    Scooterdog New Member

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    PAYTON v. NEW YORK, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639


    Held : The Fourth Amendment, made applicable to the States by the
    Fourteenth Amendment, prohibits the police from making a warrantless and
    nonconsensual entry into a suspect's home in order to make a routine felony arrest. Pp. 583-603.

    (a) The physical entry of the home is the chief evil against which the
    wording of the Fourth Amendment is directed. To be arrested in the home
    involves not only the invasion attendant to all arrests, but also an
    invasion of the sanctity of the home, which is too substantial an invasion
    to allow without a warrant, in the absence of exigent circumstances, even
    when it is accomplished under statutory authority and when probable cause
    is present. In terms that apply equally to seizures of property and to
    seizures of persons, the Fourth Amendment has drawn a firm line at the
    entrance to the house. Absent exigent circumstances, that threshold may not
    reasonably be crossed without a warrant. Pp. 583-590.

    (b) The reasons for upholding warrantless arrests in a public place, cf.
    United States v. Watson, 423 U.S. 411, do not apply to warrantless
    invasions of the privacy of the home. The common-law rule on warrantless
    home arrests was not as clear as the rule on arrests in public places; the
    weight of authority as it appeared to the Framers of the Fourth Amendment
    was to the effect that a warrant was required for a home arrest, or at the
    minimum that there were substantial risks in proceeding without one.
    Although a majority of the States that have taken a position on the
    question permit warrantless home arrest, even in the absence of exigent
    circumstances, there is an obvious declining trend, and there is by no
    means the kind of virtual unanimity on this question that was present in
    United States v. Watson, supra, with regard to warrantless public arrests.
    And, unlike the situation in Watson, no federal statutes have been cited to
    indicate any congressional determination that warrantl ess entries into the
    home are "reasonable." Pp. 590-601.

    (c) For Fourth Amendment purposes, an arrest warrant founded on probable
    cause implicitly carries with it the limited authority to enter a dwelling
    in which the suspect lives when there is reason to believe the suspect is
    within. Pp. 602-603.
     
  3. seniorjudge

    seniorjudge Super Moderator

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    Q: can police rely on a report from a neighbor that a residence is unoccupied to justify forceful entry search and seizure without taking any other investigative steps to determine the state of a residence?

    A: Probably yes; but we'd have to have more facts. WHY did the cops want to go in the place?


    Q: are they not required to make contact with the occupant and try to talk to him/her prior to using force to enter and engage in warrantless search and seizure?

    A: It depends on the circumstances. Give us more facts and details.
     
  4. seniorjudge

    seniorjudge Super Moderator

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    In other words, this case is totally irrelevant to the facts in the post.
     
  5. michaelalmond

    michaelalmond Law Topic Starter New Member

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    Q.why did the cops want to go into the place?
    A.because the neighbor saw a lighted candle through the window and said that i was making methamphetamine. which i was not. there was no fleeing felon or wanted person inside. please remember that no crime was committed and no charges filed . what else do you need to know? also please remember that it was a warrantless search and seizure. is the statement from the neighbor probable cause to take such action?
     
    Last edited: Apr 3, 2008
  6. Scooterdog

    Scooterdog New Member

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    In West Virginia:

    Warrantless Searches

    The general rule is that warrants are required for searches. But search warrants are not required for the following:

    Searches incident to arrest: Police officers are permitted to search your body and/or clothing for weapons or other contraband when making a valid arrest.

    Automobile searches: If you're arrested in a vehicle, the police may search the inside of the vehicle. To perform a complete search of the vehicle (such as in locked glove compartments, for example), probable cause is necessary.

    Exigent circumstances: Searches may be conducted if there are "exigent circumstances" which demand immediate action, such as to avoid the destruction of evidence.

    Plain view: Police do not need a search warrant when they see an object that is in plain view of an officer who has the right to be in the position to have that view.

    Consent: If you consent to a search of your body, your vehicle, or your home, police are not required to have a warrant. You aren't required to consent to any police searches.
     
  7. seniorjudge

    seniorjudge Super Moderator

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    There may have been a search, but your post does not indicate that there was a seizure.

    In other words, nothing happened.

    No harm, no foul.
     
  8. Scooterdog

    Scooterdog New Member

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    Ya, if you live in a third wold country it would be just fine. :cussing:
     
  9. e30bavarian

    e30bavarian New Member

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    The harm is the intrusion of the police. It doesn't matter if they seized anything or not. If it is illegal for them to enter the house without warrant or permission then they broke the law. Did this individual give them permission to enter the house?
     
  10. seniorjudge

    seniorjudge Super Moderator

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    According to our poster, a neighbor saw a flame in what the neighbor thought was an abandoned residence.

    Thus, according to our poster, the cops did nothing wrong.

    He was not arrested and there was nothing seized.
     
  11. michaelalmond

    michaelalmond Law Topic Starter New Member

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    i was seized and battered and detained for 4 hours. so were three of my friends , does this not constitute a seizure?
     
  12. Scooterdog

    Scooterdog New Member

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    Nothing more than a baseless opinion. If you want me to show you wrong as I have in other post's, keep going judge.

    Why can't you ever produce law, or a case to back up your propaganda??? Enough is engough.

    Maybe the neighbor was dropping acid, saw Jesus at the white house restrained. Should we all rush in?

    I don't give a damn who "seen" or thought they seen a light, or who said what. Where are the facts, the signed peace of paper from this neighbor? What about a warrent? Which we know doesn't exsist? What about procedure before you send some to the hanging tree?

    This whole case is a crock of shit. The procedure is all mucked up, and you want someone to just "give in, pay your due's". This isn't China. We don't owe anyone else. Sorry.
     
    Last edited: Apr 5, 2008
  13. Scooterdog

    Scooterdog New Member

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    Yes it does. And I don't care who tell's you it doesn't, as they would be 1-A Laywer, or 2-A government employee. Drones.

    Look at the law. It tells you there is a remedy, you just have to apply the procedure.
     
  14. michaelalmond

    michaelalmond Law Topic Starter New Member

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    no consent was given. they beat on the door and announced their presence as "charleston police dept." when i got to the door it was kicked into my body and face.
     

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