Legal Question in Criminal Law in California

What are the chances of case being dropped?

My friend was off parole and the detectives didnt know. They came and took evidence from his house and searched, assuming he was still on parole. Then they booked him in on a parole hold. He is facing trial next month and his PD is trying to get case dropped for illegal search and seizure. Does this ever happen? It was for a burglary. Does the Exclusionary Rule apply here? Thank you

Asked on 6/21/09, 12:08 am

3 Answers from Attorneys


Re: What are the chances of case being dropped?

Good if he did not waive 4th amendment rights. Contact me directly.

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Answered on 6/21/09, 1:40 pm
Edward Hoffman Law Offices of Edward A. Hoffman

Re: What are the chances of case being dropped?

The exclusionary rule governs probation searches (I presume that you meant probation rather than parole), but that does not mean your friend's motion will succeed. If the officers' mistaken belief that he was on probation was reasonable, then the evidence they found will likely be admissible against your friend. I would need to know more about the facts before I could say whether this was a reasonable mistake.

Even if the mistake was unreasonable, there may be other reasons why the motion should be denied. Here again, I would need to know more about the facts before I could offer any guidance.

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Answered on 6/21/09, 12:14 am
Brian McGinity McGinity Law Office

Re: What are the chances of case being dropped?

In this situation there are many possible outcomes and unfortunately, there really is no simple answer to your question.

As you have described the facts your friend was on Parole at one time and at the time he was subjected to the search he was no longer on Parole.

Generally the terms of Parole and/or Probation include conditions that make it possible for law enforcement to search someone and the area they are in or live in to be searched at any time and without cause or reasonable suspicion. In other words the terms of their Probation include a waiver of their 4th amendment rights. Parole is a little different because the subject is still considered to be under the control of the state. Although it really does not matter because either way the search is not a problem. If they were still incarcerated (Parole and being under the control of the state are basically the same thing and so when an individual is on Parole they are still considered to be in custody for the purposes of a search) they would be subject to the search as well.

The first thing the court will consider is if your friend was no longer on Probation or Parole was it reasonable for Law Enforcement to believe he was on a searchable status at the time of the search. If the court determines it was reasonable the evidence could very well be admissible. However, this also depends on his status. Was your friend formerly on Parole or Probation? A lot of people confuse the two and they are different. Since there is a difference the manner in which a search might be found reasonable could also be different and could change the circumstances under which the officers belief could be considered reasonable or not reasonable.

So let's assume you can get by the first hurdle and the court determines the officer's belief was not reasonable, (this is a big hurdle to get by, believe me) then the court will look to see if something called inevitable discovery would have led to the evidence or if there was some other independent reason to justify the search. The important point to understand is that the court will look for a reason to justify the search and that is also the problem. Since the court will look for a reason to justify the search you are at a disadvantage and that always means you need an attorney to level the playing field.

I suggest you contact a private attorney and consult with them regarding the specific facts involved in your situation. This will help you gain some real insight regarding your specific situation and the problems you are likely to encounter and what if anything will be helpful.

In this situation an attorney needs to ask questions regarding the search and what led up to it and what happened during the search in order to properly analyze the situation. If you are looking for legal representation please feel free to contact my office. Good luck.

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Answered on 6/22/09, 10:42 am

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