Hypothetical question. Suppose for the moment that the search was deemed unlawful (whether this particular one can be deemed as such or not, I have no idea.) If it were unlawful, Mike’s marijuana evidence can’t be used in court since it was found in an unlawful search.
Would that have any impact on Steve’s sword from the last page? It was established that Steve has no standing to challenge the legality of the search, but Mike can challenge it. So I’m not sure if Mike successfully challenging the search would ripple through to Steve’s case.
So let me see if I’ve got this… let’s say that I was over at a friend’s house (just for a quick visit). My friend had been secretly selling firearms without a license to do so, and to unlicensed civilians. While I’m over at my friend’s house — purely by chance — the police come in with a warrant, somehow. If I happen to have something illegal with me (though let’s say that I didn’t know it was illegal), could I be charged with possession of said thing, even though I don’t live in the place that was stated in the warrant?
From what I understand, if you don’t live at the house or are an overnight guest then you are considered to be in public eye, as if you were out on the street. If possessing an illegal object could get you arrested out on the street, it can get you arrested in your friends house (if you don’t have a reason to expect privacy). You not living in the place on the warrant is, ironically, the reason you can be searched, not the thing preventing you from being searched.
I see… okay, thanks!
Bear in mind, though, that in this case, Steve’s sword was in plain sight as soon as the police entered. Had he instead had a concealed weapon, the police would have had no grounds to search him. So you still have an expectation of privacy with respect to your own person.
The police can search Steve as part of the protective sweep.
Not quite, Harris. In general, they need another warrant to search the persons of people found inside during the warrant, even during a protective sweep. (The original warrant can also identify particular people who can be searched, but that wouldn’t cover Steve.)
But this wasn’t so much a search of Steve’s person as it is… well… something else we’ll get to later in this chapter. These pages are just focusing on the issues that have to do with getting and executing a search warrant. Let’s not get ahead of ourselves.
Hey cops: Got a house you want to search but couldn’t get a warrant on your own? Coerce an informant to say what you want and walk right in! Write whatever you need on an affidavit, after all, only Patrick Pogan got caught that one time, so you’ll be fine.
If I wrote about some of the actual shenanigans I’ve seen cops (and informants) pull, you’d think I was some kind of extremist lunatic making up crazy nonsense.
Most cops are decent, and most informants aren’t terribly clever, but the exceptions? Scary.
would you elaborate on these instances? Don’t be specific in names and dates obviously just tactics and scenarios.
I am very curious. Also curious about how one would defend against such activity.
Second probably easier to answer question if you have time for it is how would in most cases you prove that you actually lived or didn’t live at a residence and therefore had an expectation of privacy?
I can think of many instances with roommates moving in and out and people sleeping on couches where there are no names on leases or mortgages per se but they definitely live their. Would that just be based on the word of the person whose name is on the lease/mortgage?
sorry *live there
It seems to me that these “exceptions” are reason enough to invalidate a warrant based on false information.
If the police knew or should have known that their application contained material falsehoods, then they wouldn’t have a good faith basis for thinking the warrant was good. The warrant would be bad, and they wouldn’t have a good faith exception, so the search would be bad.
Would a defense lawyer reliably be able to prove that? Because if not, there’s still a problem.
Are their any provisions to stop police from intentionally using informants to lie? What would be the repercussions if that came out?
Page 8 mentioned that warrants are used for seizing specific evidence. The warrant for the search of the house was for locating evidence of drug crimes. (pg 20) Would that still include the nerd’s sword?
From what I can tell, yes, because he was considered to be in public. His friend was not. Think of it like this, if you are a guest in someone’s home for a few hours, the law treats you the same as being on the street, you have no reason to suspect privacy. So if the cops are allowed to be there (either on the street because it’s public or in the home due to a legal warrant) then whatever they see is fair game. Had the weapon been concealed, he would be off the hook if they searched him and found it.
So if you are at a private party, get drunk, and they cops show up to tell the owner to turn the music down and see you acting like a drunken idiot, they could arrest you for public intoxication. Why not? If you can’t expect privacy, you must be in public.
I’m curious what the legal basis is for no privacy while in a private residence where you don’t live?