Can charges be dropped if the police conducted an illegal search? 47 Answers as of June 03, 2013

Outside of the home, police stopped and said we jumped our own 6 foot fence in our backyard which was a lie. Then they smelled marijuana on someone who was with me. Which I understand would be probable cause. But to enter in a home they would have had to get written consent or call to get a search warrant. Neither was done. Isn't it an illegal search? Can't the charges be dropped because the procedure they did wasn't correct? Can they get in trouble? I feel like our rights was violated.

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Cornish, Crowley, Rockafellow, & Sartz, PLLC
Cornish, Crowley, Rockafellow, & Sartz, PLLC | Jacob Peter Sartz IV
Ultimately, whether a search was legal is an issue for a properly filed motion to suppress. If this motion, filed by the defense, is successful, any seized evidence may be excluded from being admitted at trial. Ultimately, it depends on the circumstances.
Answer Applies to: Michigan
Replied: 11/4/2011
Levine & McHenry LLC
Levine & McHenry LLC | Matthew McHenry
It's possible. If the search was illegal, and you can prove that in court, you may be able to suppress any evidence that was obtained as a result of the search. If successful, and there isn't any other evidence against you, the case could be dismissed. If, however, the state can try the case even without the wrongly discovered evidence, the state is likely to proceed. A good attorney can analyze the facts of the search for you and advise accordingly.
Answer Applies to: Oregon
Replied: 11/1/2011
Law Office of Richard Williams
Law Office of Richard Williams | Richard Williams
Normally, the police require a search warrant or permission to search premises, however, exceptions to these requirements do exist. In the event there is no exception a motion to suppress could be granted and anything discovered in the search would be suppressed.
Answer Applies to: Alabama
Replied: 10/31/2011
Cynthia Henley, Lawyer
Cynthia Henley, Lawyer | Cynthia Henley
Hire a lawyer who can review all of the facts to determine if there were exigent circumstances giving the cops the right to enter. If not, then a motion to suppress is in order.
Answer Applies to: Texas
Replied: 10/31/2011
Law Office of James A Schoenberger
Law Office of James A Schoenberger | James A Schoenberger
If the search was illegal, the results of that search can be suppressed. Volumes have been written on search and seizure law. You will likely need an attorney to analyze the facts of your case in order to advise you and make the appropriate motion.
Answer Applies to: Washington
Replied: 10/31/2011
    Austin Legal Services, PLC
    Austin Legal Services, PLC | Jared Austin
    You will need to have an experienced criminal attorney thoroughly review the police reports and evidence to determine if there was a Fourth Amendment violation. If so, then it's quite possible to have any evidence obtained as a result of that violation suppressed and excluded. Depending on what you have been charged with, there may or may not be enough evidence to proceed even if the evidence was suppressed. There is no way for me to make that determination here from the brief description of the events which are a little confusing. Have an attorney review the record to determine what you should do. If the police violated your rights, you can always file a complaint. Keep in mind that it is hard to sue the police because they have immunity unless the violation is beyond mere negligence. It has to be really flagrant. Speak with an attorney who does civil rights police cases to see if you have a case.
    Answer Applies to: Michigan
    Replied: 10/28/2011
    Law Office of Peter F. Goldscheider
    Law Office of Peter F. Goldscheider | Peter Goldscheider
    The police need what is called exigent circumstances to enter a home without a warrant or consent. The facts you relate do not seem to include such circumstances unless the police claim they were pursuing a person they had cause to arrest and that person fled into your home.
    Answer Applies to: California
    Replied: 10/28/2011
    Michael R. Nack, Attorney at Law
    Michael R. Nack, Attorney at Law | Michael R. Nack
    Yes, you might have a case of an illegal search.
    Answer Applies to: Missouri
    Replied: 6/3/2013
    Law Office of Eric Sterkenburg
    Law Office of Eric Sterkenburg | Eric Sterkenburg
    Police need probable cause or a search warrant to conduct any search. The police also need probable cause to demand a person to stop. The police report will say that they saw you jump the fence. This is suspicious and is probable cause to stop and question. Smelling marijuana on someone is probable cause for a person search. If you told the police that you lived in the home that they saw you jump the fence of they could assume that there would be marijuana in the house too. At that time they could search the home if they got a search warrant, if they had verbal consent from someone that lives in the home or if they had reasonable cause to believe that evidence or illegal substances would be disposed of or destroyed. When you go to court you will find that the police report will include information that validates the search.
    Answer Applies to: California
    Replied: 10/28/2011
    Law Office of Geoffrey M. Yaryan
    Law Office of Geoffrey M. Yaryan | Geoffrey M. Yaryan
    Yes.
    Answer Applies to: California
    Replied: 6/3/2013
    Law Office of Edward J. Blum
    Law Office of Edward J. Blum | Edward J. Blum
    It sounds like they lack probable cause to search inside the house when you were detained outside the house. I think even the scent of marijuana on a person, particularly if they are not residing in this house, is sketchy for probable cause. Remember, they also have to have a reasonable suspicion to detain you and your friends in the first place. If they don't, the fact that you ran and everything that comes afterwards is suppressible because they lack that initial reasonable suspicion.
    Answer Applies to: California
    Replied: 10/27/2011
    Law Office of Jared Altman
    Law Office of Jared Altman | Jared Altman
    If they entered the house illegally then it's possible that some evidence may be suppressed which may kill the prosecution's case.
    Answer Applies to: New York
    Replied: 10/27/2011
    Law Office of Nixon Ayemi | Nixon Ayeni
    You should talk to a lawyer. The facts as I read is troubling.
    Answer Applies to: Minnesota
    Replied: 10/27/2011
    Michael Breczinski
    Michael Breczinski | Michael Breczinski
    According to your facts they should have gotten a warrant to search the property. And yes that could be used to suppress anything they found.
    Answer Applies to: Michigan
    Replied: 10/27/2011
    Laguzzi Law, P.C.
    Laguzzi Law, P.C. | Carina Laguzzi
    The charges wouldn't get dropped necessarily. You would file a motion to suppress any physical evidence that was recovered. If the motion is granted and the Commonwealth does not appeal that decision, then they would move to dismiss the case. Consult with an experienced criminal defense attorney.
    Answer Applies to: Pennsylvania
    Replied: 10/27/2011
    Mark Thiessen, Attorney at Law
    Mark Thiessen, Attorney at Law | Mark Thiessen
    They certainly can, but you need a skilled drug trial attorney to fight this case for you and make the argument. The DA won't listen to you and the cops will lie. Hire the best attorney you can afford.
    Answer Applies to: Texas
    Replied: 10/27/2011
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    Probable cause means they do not need your consent, within certain limits. You need to hire a lawyer to argue 4th Amedment, because yes, charges can be dropped (when certain evidence gets excluded) after a motion is filed based on an illegal search. You really do need a lawyer to present this.
    Answer Applies to: California
    Replied: 10/27/2011
    Law Office of Joe Dane
    Law Office of Joe Dane | Joe Dane
    The remedy for an illegal search is exclusion of any evidence found, but not necessarily invalidating the rest of the case. You don't say what (if anything) was found in the house that could be suppressed. Search issues are very fact specific, so this will take more than an on-line answer. You'll need to discuss all the details with your attorney.
    Answer Applies to: California
    Replied: 10/27/2011
    Law Office of Phillip Weiser
    Law Office of Phillip Weiser | Phillip L. Weiser
    A short answer is yes, but an attorney would need to carefully review the facts to determine whether a search violation has occurred.
    Answer Applies to: Kansas
    Replied: 10/27/2011
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    Not necessarily. If an unlawful search occurs, a motion may be filed to suppress the evidence discovered as a result of the unlawful search. If sufficient independent evidence to support the charge still exists, the case may proceed forward.
    Answer Applies to: Minnesota
    Replied: 10/27/2011
    The Law Office of Harry E. Hudson, Jr.
    The Law Office of Harry E. Hudson, Jr. | Harry E. Hudson, Jr.
    Yes. But you need attorney. So , hire one.
    Answer Applies to: California
    Replied: 10/27/2011
    The McDonnell Law Firm, PLLC
    The McDonnell Law Firm, PLLC | Patrick J. McDonnell
    You never mentioned anything about what and how the police searched. I can't specifically answer your question. The police don't need WRITTEN consent. To search a home, they just need voluntary consent that was not coerced or made against threat of a person who appears to be in possessory control of the residence.
    Answer Applies to: New York
    Replied: 10/27/2011
    Dennis Roberts, a P.C.
    Dennis Roberts, a P.C. | Dennis Roberts
    If you can prove all of facts, you win. But remember the three rules that Judges generallyfollow: 1. All defendants lie. 2. All cops lie. 3. Ignore number two because of number one. Just make sure your attorney or public defender knows all of these facts.
    Answer Applies to: California
    Replied: 10/27/2011
    Law Offices of Paula Drake
    Law Offices of Paula Drake | Paula Drake
    There could be exceptions to the warrant requirement to search the house; call an attorney to discuss the specific details. If they did seize evidence from the house without a warrant or consent and there is no exception to the requirement under the facts of the case, a motion to suppress the evidence could be filed and the issue litigated. Even if the evidence from the house is suppressed, there may be other evidence that they could use against you (e.g. statements, physical evidence) from the initial contact. In order for an attorney to analyze all of the issues, you should contact counsel with more detailed accounting of the facts.
    Answer Applies to: California
    Replied: 10/27/2011
    Law Offices of John Carney
    Law Offices of John Carney | John Carney
    The police may enter a home if they have a search warrant, an arrest warrant, are in hot pursuit of a criminal, or if they get consent. There is also an "emergency doctrine" that allows them to break down a door or forcibly enter a dwelling if there is a fire, a threat to life, or some emergency. That is because there is no time to get a warrant. They did not have a warrant or probable cause and unless the tenant or owner consented to the search it was illegal. Anything they seized or any evidence or statements that were the product of that illegal search can be suppressed if the judge finds that they violated your rights or made an illegal search.You may even be able to sue the police for violating your rights.
    Answer Applies to: New York
    Replied: 10/27/2011
    Law Office of Ronald Aronds, LLC
    Law Office of Ronald Aronds, LLC | Ronald Aronds
    What you describe sounds like an illegal warrantless search done without probable cause which could result in a suppression of the evidence.
    Answer Applies to: New Jersey
    Replied: 10/27/2011
    The Zwiebel Law Firm, LLC
    The Zwiebel Law Firm, LLC | Elizabeth Zwiebel
    The entrance to the home requires more facts. If they did what's called a protective sweep then it would not be illegal. There are several caveats to search of a home, but you are right in that if the search does not fall into one of the exceptions then it was illegal.
    Answer Applies to: Alabama
    Replied: 10/27/2011
    The Law Offices of Victor J Mazzaraco
    The Law Offices of Victor J Mazzaraco | Victor J Mazzaraco
    You have a good argument that your 4th Amendment right to be free of unlawful searches and seizures was violated. They're trying to use the pot as an "exigent circumstance" justifying entering the home without a warrant. But exigent circumstances usually refer to a situation in which critical evidence of the crime will be lost if the police don't enter the home immediately, like if a pound of coke was being flushed down the toilet, or someone was being tortured inside. It can be argued the police could have left one officer outside the residence to prevent anyone from leaving if they tried to, and the other could have gone and got the warrant. The great thing about a search and seizure violation is that everything that was discovered by police after that illegality is inadmissible. So if a pound of meth was discovered inside a residence but the entry was illegal the meth cannot be introduced as evidence against the homeowner.
    Answer Applies to: California
    Replied: 10/27/2011
    Law Offices of James A Bates
    Law Offices of James A Bates | James A Bates
    The only remedy for an illegal search of your house, at least in criminal court, is the suppression (throwing out of evidence) of anything they found in the house. Your question did not say whether they found anything. Whether they get in trouble or not depends on whether you file a complaint against them or sue them. But they may say thay they got verbal consent to search the house.
    Answer Applies to: California
    Replied: 10/27/2011
    Freeborn Law Offices, P.S.
    Freeborn Law Offices, P.S. | Steve Freeborn
    Not necessarily. If the arresting officers are "in pursuit" based upon the commission of a crime, they may be able to follow you into the home, especially if there is fear for the safety of individuals, including the officers. If an illegal search was conducted, it may or may not result in the dismissal of the case. If the search was found to be illegal, then a judge could rule that any evidence obtained as a result of the illegal search is inadmissible. If the evidence that is ruled inadmissible is critical to the prosecutor's case, the case could be thrown out or dismissed. If the evidence is not critical to the case, then the case moves forward without the evidence. My advice: consult with an attorney.
    Answer Applies to: Washington
    Replied: 10/27/2011
    Baner and Baner
    Baner and Baner | Jonathan Baner
    They may have. Frankly, these sorts of questions come up all the time online. What do people think criminal defense attorneys do exactly? We read police reports, conduct investigations, do suppression hearings to suppress illegally obtained evidence, etc. If you know that searches may be unauthorized, then you must already know that charges may be dismissed if a COURT rules that the evidence is unauthorized (court or prosecutor may dismiss). In your particular circumstances, it is impossible to tell anything about what will happen because the police report is an absolutely crucial piece of evidence to review.
    Answer Applies to: Washington
    Replied: 10/27/2011
    Palumbo and Kosofsky
    Palumbo and Kosofsky | Michael Palumbo
    If evidence was gleaned as part of an illegal search then it should be suppressed under the "fruit of the poisonous tree" doctrine. Give us a call if you would like to discuss retaining our office to represent you.
    Answer Applies to: New York
    Replied: 10/27/2011
    Betts Legal Services
    Betts Legal Services | Shawn M. Betts
    If you were outside of your home, the police would need a warrant to search it regardless of what they found on you or what they may have charged you with. If the search is found to be illegal, then the charges against you will be dismissed.
    Answer Applies to: Minnesota
    Replied: 10/27/2011
    Jules N. Fiani, Attorney at Law
    Jules N. Fiani, Attorney at Law | Jules Fiani
    Yes.
    Answer Applies to: Michigan
    Replied: 6/3/2013
    Law Office of Daniel K Martin
    Law Office of Daniel K Martin | Daniel K Martin
    Smelling the weed outside would not justify the search of the home. I am not entirely clear of the order of things or what was written in the police reports. You definitely should meet with a criminal defense attorney and discuss your case. You may be able to suppress the evidence. Of course it would only be evidence of what they found in your house.
    Answer Applies to: California
    Replied: 10/27/2011
    Todd Landgren, Professional Law Corp.
    Todd Landgren, Professional Law Corp. | Todd Landgren
    Sure, the evidence can be suppressed IF the search was illegal! But that has to be litigated! The prosecutor isn't going to just "drop" the charges because YOU feel the search was illegal. If that were the case, no charges would ever be filed. Get a lawyer who can contest the legality of the search!
    Answer Applies to: California
    Replied: 10/27/2011
    Miller & Harrison, LLC
    Miller & Harrison, LLC | David Harrison
    If the search was illegal and if the only evidence of a crime was found during the illegal search, then the case might be dismissed. You need to hire a good lawyer.
    Answer Applies to: Colorado
    Replied: 10/27/2011
    Andersen Law PLLC
    Andersen Law PLLC | Craig Andersen
    A warrantless search is grounds for suppressing evidence unless consent is given or illegal substances were in plain view.
    Answer Applies to: Washington
    Replied: 10/27/2011
    Law Office of Charles J. Block
    Law Office of Charles J. Block | Charles J. Block
    The charges may be dropped if the evidence is suppressed because of an illegal search - the burden is on you to prove the search is illegal.
    Answer Applies to: New Jersey
    Replied: 10/27/2011
    Michael Edwards, Attorney at Law
    Michael Edwards, Attorney at Law | Michael Edwards
    If evidence against you was obtained pursuant to an illegal search, then our law requires the suppression of the evidence, unless certain exceptions apply. You need to consult with a competent criminal defense attorney, to find out if a motion to suppress the evidence in question is a viable option in your case. If important evidence against you is suppressed by the court, that means that the prosecution cannot use it against you at trial. Sometimes this makes it so that they do not have sufficient evidence to prosecute you, and they dismiss your case. It is less likely that the police will "get in trouble" for what they did, because they have immunity from suit under most circumstances. That is another issue you will need to discuss with a civil rights attorney, if you decide to pursue that. However, I recommend that you take care of your criminal case first, and then decide where to go from there.
    Answer Applies to: Utah
    Replied: 10/27/2011
    Robert Mortland
    Robert Mortland | Law Office of Robert Mortland
    If the search was unlawful, your attorney can file a PC 1538.5 motion to suppress the evidence. The motion will have a formal hearing where the judge will listen to the testimony of the officer as well as any witnesses that you would like to put on. The judge will consider the written motion and the testimony. If the officer did an unlawful search, anything that he found can be suppressed as fruits of the poison tree.
    Answer Applies to: California
    Replied: 10/27/2011
    D T Pham Associates, PLLC
    D T Pham Associates, PLLC | Duncan T Pham
    Whether the search was unlawful is something for the court to determine - you will have to retain an attorney to argue this in court.
    Answer Applies to: Texas
    Replied: 10/27/2011
    Gary Moore, Attorney at Law
    Gary Moore, Attorney at Law | Gary Moore
    You are entitled to ask the judge to suppress all evidence seized from the premises of your house, based upon the failure to obtain a search warrant.
    Answer Applies to: New Jersey
    Replied: 10/27/2011
    Law Offices of Matthew Murillo
    Law Offices of Matthew Murillo | Matthew Murillo
    Your sort of right. A search warrant is needed to enter a home and search, HOWEVER, there are several exceptions to this requirement. Without much more information, there is no way to know whether one applies, but it sounds like it might. At least, the DA could make an argument that an exception applies. As far as dismissing the case entirely, the DA will not do so automatically. You should consult a few attorneys to see what they think about the case, after getting the details. You may need to file a Motion to Suppress Evidence in order to "force" the DA to dismiss the case.
    Answer Applies to: California
    Replied: 10/27/2011
    Fabian & Associates, Inc.
    Fabian & Associates, Inc. | Stephen G. Fabian, Jr.
    It is possible that the evidence obtained through the search could be suppressed.
    Answer Applies to: Oklahoma
    Replied: 10/27/2011
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