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#1 help123_3487

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Posted 18 November 2012 - 08:32 AM

My son was placed on probation for criminal trespassing and the city I live in has their city cleark as there probation officer and they came out to my home which I do not live in the city limits and they wanted me to let them come in to search for drugs and alcohol only because the cheif of police told her to I refused to let them unless they had a warrant and they told me if I didnt they would lock up my house so I could not go back in and they also said they was going to revoke my sons probation because I would not let them search without a warrant and a reason for that purpose only. Did I have the right to make them get a warrant and show the reason for the search?

#2 adjusterjack

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Posted 18 November 2012 - 01:53 PM

Did I have the right to make them get a warrant and show the reason for the search?


No.

Probation searches without warrants are legal and have been upheld by the US Supreme Court.

http://www.chanroble...83/868/case.php

That's a Wisconsin case, but the decision applies to all states that use probation searches.

And while the search has to be reasonable, it isn't likely to have to be your definition of reasonable.

Warning: Legal issues are complicated. Explanations and comments here are simplified and might not fully explain the ramifications of your particular issue. I am not a lawyer. I do not give legal advice. I make comments based on my knowledge and experience. I guarantee nothing. If you act on my comments without the advice of an attorney, you do so at your own risk.


#3 BOR_BOR

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Posted 18 November 2012 - 02:12 PM

IF your son's condition of Probation permits random/non suspicionless searches, then no warrant is required.

As far as locking the house down and not letting you in, the only case law that comes to my mind for that is a US SC case titled, Illinois v. McArthur.

They would not let him enter his home unless an officer accompanied him until they obtained a warrant, the SC ruled that case did not violate the 4th AM. The issue was a possible evidence destruction theory, flushing drugs down the toilet, etc.

It is possible it would apply in your case? Then again, maybe not.

#4 adjusterjack

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Posted 18 November 2012 - 03:38 PM

The difference between the OP's situation and McArthur is that the police, in McArthur, were on the spot and were told by the suspect's spouse that there were drugs in the house. That gave them probable cause to "detain" McArther while they got the warrant.

A probation search requires only a reasonable basis for the search which appears to be less rigorous than probable cause.

Here's the McArthur decision:

http://www.law.corne...99-1132.ZO.html

The OP doesn't say whether the search was actually done with or without a warrant.

Warning: Legal issues are complicated. Explanations and comments here are simplified and might not fully explain the ramifications of your particular issue. I am not a lawyer. I do not give legal advice. I make comments based on my knowledge and experience. I guarantee nothing. If you act on my comments without the advice of an attorney, you do so at your own risk.


#5 BOR_BOR

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Posted 19 November 2012 - 08:58 AM

The difference between the OP's situation and McArthur is that the police, in McArthur, were on the spot and were told by the suspect's spouse that there were drugs in the house. That gave them probable cause to "detain" McArther while they got the warrant.


The question presented to the court was not one of if the seizure of his person transformed an investigative detention into an arrest, so IMO, it may have been an illegal seizure of his person, and even the court did not rule on that, but addressed it.

They ruled on the so called seizure of the home.

#6 Guest_FindLaw_Amir_*

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Posted 19 November 2012 - 12:42 PM

To learn more about this subject matter, you may wish to visit the Criminal Law Center and read Search and Seizure as a good resource.




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