Did they do an illegal search if my son was not home? 61 Answers as of July 08, 2013

My son is being charged with a misdemeanor. He was not at home when his room was searched. Was it legal?

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Cornish, Crowley, Rockafellow, & Sartz, PLLC
Cornish, Crowley, Rockafellow, & Sartz, PLLC | Jacob Peter Sartz IV
I'd recommend your son consult with his attorney regarding this issue. If your son does not have an attorney and cannot afford to retain an attorney, he may be able to obtain a court-appointed attorney depending upon the procedures of the applicable court. Whether a search was legal depends on a litany of factors. Searches are frequently issues with motions to suppress. If a motion to suppress is successfully filed by the defense, evidence taken during an illegal search may not be introduced at a potential trial. However, these suppression motions carry certain risks and should only be filed as part of a coherent trial strategy. Your son should consult with his attorney regarding this issue.
Answer Applies to: Michigan
Replied: 1/7/2012
Burdon and Merlitti
Burdon and Merlitti | Adam Van Ho
As a general rule, not unless someone gave the officers permission to search the residence. If they came and looked for him, then they are OK but going through and searching his room on a misdemeanor is excessive.
Answer Applies to: Ohio
Replied: 1/3/2012
Edward  D. Dowling IV Attorney at Law
Edward D. Dowling IV Attorney at Law | Edward D. Dowling IV
The law of search and seizure is complicated and I would need all the details such as did some consent to the search of his room, etc.
Answer Applies to: New York
Replied: 7/8/2013
Timothy J. Thill P.C.
Timothy J. Thill P.C. | Timothy J. Thill
If the police had a warrant to search the house, it is clearly a legal search, or if a parent or other adult in the family gave the police consent to search, it is a legal search. Without further information, it is difficult to determine if the search was legal or not, and would advise your son consult with an attorney for a definite answer to your question.
Answer Applies to: Illinois
Replied: 12/29/2011
Robert Valles and Associates P.C.
Robert Valles and Associates P.C. | Robert Valles Jr.
Depends on many other factors to make that determination such as did they enter with a warrant, did someone else allow them to enter and how did they get in.
Answer Applies to: Texas
Replied: 12/27/2011
    Gregory Casale Attorney at Law
    Gregory Casale Attorney at Law | Gregory Casale
    Just like the last question that I answered, the police need either a search warrant, permission or exigent circumstances to search without a warrant. If a homeowner or roommate gave the police permission, the search may be legal. You certainly need a good defense lawyer to preserve your son's Constitutional rights if they were violated.
    Answer Applies to: Massachusetts
    Replied: 12/27/2011
    Law Office of Peter F. Goldscheider
    Law Office of Peter F. Goldscheider | Peter Goldscheider
    Did you let the police in? Did they have a warrant for his arrest or for a search of your premises? If not their search was illegal. It is not important that he wasn't there.
    Answer Applies to: California
    Replied: 7/2/2013
    Law Office of Phillip Weiser
    Law Office of Phillip Weiser | Phillip L. Weiser
    The legality of the search can be challenged and the judge will have to rule based upon the specific facts surrounding the search.
    Answer Applies to: Kansas
    Replied: 12/27/2011
    Law Office of Tracey S. Sang
    Law Office of Tracey S. Sang | Tracey Sang
    It is hard to say. Searches are often conducted when someone is not home. You do not say what your son is charged with and you may not know whether or not they had a warrant. A good attorney needs to look at all the circumstances to determine whether or not the search was done without probable cause and therefore violated the Fourth Amendment.
    Answer Applies to: California
    Replied: 12/22/2011
    Mark Thiessen, Attorney at Law
    Mark Thiessen, Attorney at Law | Mark Thiessen
    He does not have to be present, but they do need a warrant. This will be very fact specific.
    Answer Applies to: Texas
    Replied: 7/8/2013
    Law Offices of Martina A. Vigil, PC
    Law Offices of Martina A. Vigil, PC | Martina A. Vigil
    It is only a lawful search if the police had a warrant or consent to search the room. If the owner of the house was present and gave consent to search, the search is legal.
    Answer Applies to: California
    Replied: 12/22/2011
    Law Office of Richard Williams
    Law Office of Richard Williams | Richard Williams
    If the police had a search warrant, they could search without your son being home. If they had permission from the owner or tenant of the home, they could search without your son being present.
    Answer Applies to: Alabama
    Replied: 12/22/2011
    Law Office of Ronald Aronds, LLC
    Law Office of Ronald Aronds, LLC | Ronald Aronds
    Maybe. If there was a search warrant covering the specific area of your son't room then it was probably a valid search. I would have to see all of the evidence before I could give a full answer, though.
    Answer Applies to: New Jersey
    Replied: 12/22/2011
    Law Office of Kathryn L. Hudson
    Law Office of Kathryn L. Hudson | Kathryn L. Hudson
    A search is legal if anyone in the dwelling gave permission for the search. If your son occupied a room at a university, college, or fraternity, permission for a search could be granted by anyone in authority. If none of these conditions were present then the answer is no, the search was illegal and any evidence seized would be inadmissible as fruits of an poison tree.
    Answer Applies to: Arkansas
    Replied: 12/22/2011
    Law Office of Eric Sterkenburg
    Law Office of Eric Sterkenburg | Eric Sterkenburg
    If the police had a search warrant the person in charge of the property need not be present during the search. If the police did not have a search warrant then they can search if the search falls within one of the exceptions of search warrant requirements.
    Answer Applies to: California
    Replied: 12/22/2011
    Reeves Law Firm, P.C.
    Reeves Law Firm, P.C. | Roy L. Reeves
    A person does not need to be home for a search to be legal. The questions are: Did the search take place pursuant to permission? Who gave the permission? Did that person have authority to give permission? Was the permission limited in scope? What was the permission based upon? For example, a roommate can give permission to enter and search common areas, but personal space, not so much, it depends on the circumstances. A Judge or Magistrate can give permission, via a warrant, but only if the warrant is based on an affidavit, properly sworn, that gives just cause.
    Answer Applies to: Texas
    Replied: 12/22/2011
    Craig W. Elhart, P.C.
    Craig W. Elhart, P.C. | Craig Elhart
    Whether it was legal would depend on whether they had a search warrant or proper permission.
    Answer Applies to: Michigan
    Replied: 12/22/2011
    Law Office of Jared Altman
    Law Office of Jared Altman | Jared Altman
    Depends if there was a warrant or not.
    Answer Applies to: New York
    Replied: 12/22/2011
    Law Offices of John Carney
    Law Offices of John Carney | John Carney
    The police can search your home if they have a search warrant or an arrest warrant. He does not need to be home and they can break down the door to enter if he is not home if the warrant allows that.
    Answer Applies to: New York
    Replied: 12/22/2011
    H. Scott Basham, Attorney at Law, P.C. | H. Scott Basham
    You don't say whether the search was warrantless or not. There is no general rule that the suspect be present when the search takes place. Sometimes the police can search without a warrant. I need more information before giving a complete answer.
    Answer Applies to: Georgia
    Replied: 12/22/2011
    Law Offices of Louis M. Leibowitz, LLC
    Law Offices of Louis M. Leibowitz, LLC | Louis Leibowitz
    If you gave the police permission to search your son's room or if they had a warrant, he did not need to be home.
    Answer Applies to: Maryland
    Replied: 12/21/2011
    The McDonnell Law Firm, PLLC
    The McDonnell Law Firm, PLLC | Patrick J. McDonnell
    That depends. If they had a search warrant then yes, it was legal. Also if someone who appeared top the police to have lawful exercise and control over the premises gave the police consent to search, it was probably a legal search.
    Answer Applies to: New York
    Replied: 12/21/2011
    Jules N. Fiani, Attorney at Law
    Jules N. Fiani, Attorney at Law | Jules Fiani
    Yes.
    Answer Applies to: Michigan
    Replied: 5/30/2013
    DeVito & Visconti, PA
    DeVito & Visconti, PA | John E DeVito
    If the police entered your home without permission and without a warrant, and searched your son's room, the search would be illegal and any evidenced seized as a result of that search would be suppressed.(not allowed as evidence) If a parent or owner of the house gave the police permission to search his room, then the search may be legal and any evidence seized can be used at trial. The facts of the case will be important and may determine whether the search was legal or illegal.
    Answer Applies to: Massachusetts
    Replied: 12/21/2011
    Ascheman & Smith | Landon Ascheman
    The fact that your son was not present does not make the search illegal. However, there may be other factors that cause the search to be a violation of his rights. I would strongly encourage you to seek legal representation for your son.
    Answer Applies to: Minnesota
    Replied: 12/21/2011
    Adesina Law Office, P.C.
    Adesina Law Office, P.C. | Adebayo Adesina
    I will need more facts to accurately respond to your question. If they had a warrant and a non minor let them into to the house, the search may be legal.
    Answer Applies to: Illinois
    Replied: 12/21/2011
    Law office of Robert D. Scott | Robert Scott
    It depends on whether or not the police had a search warrant at the time of the search.
    Answer Applies to: Maryland
    Replied: 12/21/2011
    Hammerschmidt Broughton Law
    Hammerschmidt Broughton Law | Mark A. Broughton
    Without a warrant, consent, or some other "exigent circumstance," a search would be unlawful. If he was on probation at the time, most of not all terms now include a search/seizure waiver that would allow a search without a warrant. Other times, a family member gives consent to the police to enter and search. But standing on it's own, that would not allow them to search his home.
    Answer Applies to: California
    Replied: 12/21/2011
    Rizio & Nelson
    Rizio & Nelson | John W. Bussman
    Impossible to guess without a lot more information. The rules re: search & seizure are pretty complicated.
    Answer Applies to: California
    Replied: 7/2/2013
    Betts Legal Services
    Betts Legal Services | Shawn M. Betts
    It is legal if the police had a warrant to search or if there were any exigient circumstances which precluded the need for a warrant, such as emergency or spoilation of evidence.
    Answer Applies to: Minnesota
    Replied: 12/21/2011
    Austin Legal Services, PLC
    Austin Legal Services, PLC | Jared Austin
    The police can search a house with permission of the owner, a valid search warrant, or a valid exception to the search warrant requirement. Whether or not your son was home while it was searched, is irrelevant. If you are in doubt of the validity of the search, have a criminal attorney review the case file.
    Answer Applies to: Michigan
    Replied: 12/21/2011
    Cynthia Henley, Lawyer
    Cynthia Henley, Lawyer | Cynthia Henley
    Unless they have a warrant or permission to search the room, the police could not likely conduct a lawful search. (There are some exceptions.)
    Answer Applies to: Texas
    Replied: 12/21/2011
    Law Office of Michael R. Garber
    Law Office of Michael R. Garber | Michael R. Garber
    If someone with authority let them search, it's a valid search; otherwise, there would have to be a search warrant issued.
    Answer Applies to: Louisiana
    Replied: 12/21/2011
    Law Office of Daniel K Martin
    Law Office of Daniel K Martin | Daniel K Martin
    That depends on many factors, was he already on probation? Did anyone give them permission to search?
    Answer Applies to: California
    Replied: 7/2/2013
    Andersen Law PLLC
    Andersen Law PLLC | Craig Andersen
    If you son lives with you, and the police have a warrant to search, it is perfectly legal to search as long as someone is home.
    Answer Applies to: Washington
    Replied: 12/21/2011
    Aaron Black Law
    Aaron Black Law | Aaron Black
    There is not enough information here to give you an answer. Did the police have a warrant? Did someone give the police permission to be in the house?
    Answer Applies to: Arizona
    Replied: 7/2/2013
    Law Offices of Mitch Furman | Mitch Furman
    Without a search warrant it was probably an illegal search.
    Answer Applies to: Illinois
    Replied: 12/21/2011
    Law Office of Christopher G Humphrey PC | Christopher G Humphrey
    If you allowed them to search or another person who lives there allowed the search, yes it is legal. I am assuming you allowed the search. Also, some bond conditions require a person to consent to a search.
    Answer Applies to: Wyoming
    Replied: 12/21/2011
    The Law Office of Cindy Barton
    The Law Office of Cindy Barton | Cindy Barton
    You don't really give enough facts to tell if it was legal or not. Was it his home? Did someone that had legal control of the home give permission? The question that the court asks is did he have a reasonable expectation of privacy that was violated.
    Answer Applies to: Utah
    Replied: 12/21/2011
    Harden Law Offices
    Harden Law Offices | Leonard D. Harden
    It really depends, did police obtain consent to search? Did person who consented have authority to permit search? There are lots of facts which make a difference.
    Answer Applies to: New Hampshire
    Replied: 7/2/2013
    Thomas J. Tomko Attorney At law
    Thomas J. Tomko Attorney At law | Thomas J. Tomko
    A search can legally be performed for a number of reasons. A Warrant can give authority to search, even if the person who lives there is not at home. There can be a consent search by the person in possession and control of the area. Hot pursuit can also be a valid reason to search. Your issue involves someone who is not home but a search was made. If it was by permission or pursuant to warrant, then it may be legally permitted. However, if the search was done under pretext or it exceeded authority to search or the person giving authority to search did not have the actual authority, then the search may be deemed invalid and a suppression motion may exclude the evidence from being admitted at trial.
    Answer Applies to: Michigan
    Replied: 12/21/2011
    The Law Office of Harry E. Hudson, Jr.
    The Law Office of Harry E. Hudson, Jr. | Harry E. Hudson, Jr.
    Insufficient amount of information. Need to know how cops got in. Did they have a warrant? Was he on probation with a search clause in it?
    Answer Applies to: California
    Replied: 7/2/2013
    Law Office of Joe Dane
    Law Office of Joe Dane | Joe Dane
    His presence isn't the determining factor. It's the legality of the search itself. Why did they search? Was he on probation subject to being searched? Parole? Was there a warrant? Did they claim to have consent? Your son's lawyer is going to have to examine the whole case and determine if there are any search issues - not just whether or not your son was home.
    Answer Applies to: California
    Replied: 7/2/2013
    Law Offices of Christopher L. Hoglin, P.C.
    Law Offices of Christopher L. Hoglin, P.C. | Christopher L. Hoglin
    A search of someone's room does not necessarily depend on whether the occupant/owner of that room was present. The police may search someone's room if they receive proper consent, they have a search warrant, or exigent circumstances exist at the time they conduct the search. Law enforcement may also conduct a search of a room if they observe something illegal that is in plain sight. There are a number of factors the court will consider before dismissing evidence or dismissing a case where there may have been an illegal search. If your son is being charged with a Misdemeanor, he should get a Criminal Defense Lawyer to evaluate the circumstances surrounding the search of his room, as this may be a pivotal key in determining the outcome of his criminal case.
    Answer Applies to: California
    Replied: 12/21/2011
    Grant & Grant
    Grant & Grant | Richard L. Grant, Esq.
    It will depend if they had a search warrant, the age of your son, and possibly other factors. It is also depends if exigent circumstances existed to not require a search warrant. I would highly recommend that your son hire an experienced criminal defense attorney or request a Public Defender. A criminal defense attorney who regularly practices in the court where your son's case will be heard can make a difference in the outcome of your son's case.
    Answer Applies to: California
    Replied: 12/21/2011
    Jason Overton, Attorney at Law
    Jason Overton, Attorney at Law | Jason Overton
    It depends. You'll need to provide more information. They may have had a warrant, or, more likely, someone that was there consented to the search. You need to speak with an attorney.
    Answer Applies to: Alabama
    Replied: 12/21/2011
    Rhoades & Miller, LLP
    Rhoades & Miller, LLP | M. Jason Rhoades
    Did the police have a search warrant? Did you consent to the search? If either of these is true, then you are going to face a tough road ahead in challenging the search. Still, depending on the circumstances, there may be ways to attack it. You need to get an attorney working with you and your son who can look at all of the facts and discuss the best way to move forward.
    Answer Applies to: Georgia
    Replied: 12/21/2011
    Law Office of James S. Lochead
    Law Office of James S. Lochead | James S. Lochead
    If the Authorities had a Search Warrant, or your son was on Probation or Parole, thus having no right to object, the search would be legal, since his presence is not necessary to conduct the search, if otherwise legal.
    Answer Applies to: California
    Replied: 12/21/2011
    Connell-Savela
    Connell-Savela | Jason Savela
    Assuming this is a shared apartment (not a dorm), where son has his own room that is not shared with anyone else and he has the right to keep people out of, then consent to search that room by anyone else is not valid. If the police entered the room based on a reason other than consent, such as items in plain view, or a search warrant, then possibly valid.
    Answer Applies to: Colorado
    Replied: 12/21/2011
    The Law Offices of Stephen L. Richards | Stephen L. Richards
    If they had a search warrant, it was.
    Answer Applies to: Illinois
    Replied: 7/2/2013
    Law Office of Brendan M. Kelly
    Law Office of Brendan M. Kelly | Brendan M. Kelly
    You cannot search without permission or warrant. If they did not have either then the search is bad.
    Answer Applies to: Nebraska
    Replied: 12/21/2011
    Raiser & Kenniff, PC
    Raiser & Kenniff, PC | Steve Raiser
    That will depend on whether the police had a warrant or were given permission to enter and search by the home owner (although there are limitations to searching his room).
    Answer Applies to: New York
    Replied: 12/21/2011
    Law Office of Richard Southard
    Law Office of Richard Southard | Richard C Southard
    There's not enough facts to answer this question. Did they have a search warrant? How old is your son? Did someone else in the residence give them permission to do so? Was there an emergency situation that was going on at the time? Was the room locked in any way?
    Answer Applies to: New York
    Replied: 7/2/2013
    Beaulier Law Office
    Beaulier Law Office | Maury Beaulier
    Challenging the validity of a search may often result in the suppression of evidence resulting from the search. Whether or not a search is valid, or whether arguments exist that it was a violation of the fourteenth amendment and State constitutional protections, requires a full review of the facts of the case. Accordingly, you would be wise to hire an experienced criminal defense lawyer. As a general rule, law enforcement may make a search pursuant to a valid search warrant whether any person is home or not. They cannot,however, exceed the scope of the warrant. law enforcement may not make a search without a valid warrant supported by probable cause. There are, however, numerous warrant exceptions including cases where contraband is in plain sight, where the search is related to officer safety, or where exigent circumstances exist supported by additional probable case.
    Answer Applies to: Minnesota
    Replied: 12/21/2011
    Freeborn Law Offices, P.S.
    Freeborn Law Offices, P.S. | Steve Freeborn
    If they had a warrant that authorized the search, then it was proper. Also, if someone let them into the home so they could search it, even without a warrant, the search was proper. You have given me no facts to provide any more definitive answer.
    Answer Applies to: Washington
    Replied: 12/21/2011
    Thomas C. Brandstrader Attorney At Law | Thomas C. Brandstrader
    Did they have a warrant or consent?
    Answer Applies to: Illinois
    Replied: 7/2/2013
    Gutin and Wolverton
    Gutin and Wolverton | Harley Gutin
    Does not appear under these facts to be legal unless the officers had a warrant or a person with authority authorized it or some other exception.
    Answer Applies to: Florida
    Replied: 12/21/2011
    Healan Law Offices
    Healan Law Offices | William D. Healan, III
    The search might or might not have been illegal, but whether or not he was home at the time of the search does not generally matter.
    Answer Applies to: Georgia
    Replied: 12/21/2011
    Law Office of Jeff Yeh
    Law Office of Jeff Yeh | Jeff Yeh
    It depends if they had a warrant for a search, and if not, if someone was foolish enough to allow the cops to do a search consensually.
    Answer Applies to: California
    Replied: 12/21/2011
    LynchLaw
    LynchLaw | Michael Thomas Lynch
    The occupant of a residence need not be present in order for a valid search warrant to be served.
    Answer Applies to: California
    Replied: 12/21/2011
    Ellman and Ellman PC
    Ellman and Ellman PC | Kevin Ellmann
    Possibly. It depends upon whether someone with apparent authority or actual authority consented to the search. This is a legal standard that needs to be analyzed based upon the circumstances of law enforcements actions.
    Answer Applies to: Colorado
    Replied: 12/21/2011
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