Legal Question in Criminal Law in Colorado

Is this an illegal search and seizure?

My boyfriend's car broke down and he left it there, the police ran a search on his plates and found that he had 3 FTA's and came to out house and arrested him. They knocked on the door and entered, they arrested him right a way and asked him if there were any drugs in the house. He said no, but then they found the weed on the floor and looked around our house, in the kitchen, closets, bedrooms on shelves. We asked him if it was illegal for him to search the house, without a warrent, and he said it was probable cause. And took all of our paraphenelia and weed and him. They told us they could smell the pot when they walked into our house. They charged him with possession and intent to sell, it was 3.5 pounds, they also charged him with the paraphenilia charge, after I had told them it was my bong and my papers and my pipes, etc... Also, the same arresting officer had come to the house before, without my boyfriends permission (while nobody was home, the landlord let him in) and smashed another bong he had and gave him a ticket for driving without a license. Is there anything illegal about this?

Asked on 10/25/00, 1:21 pm

2 Answers from Attorneys

Charles Aspinwall Charles S. Aspinwall, J.D., LLC

Re: Is this an illegal search and seizure?

The police are probably OK with the first part of your question, as they entered the premises with a lawful arrest warrant, discovered illegal substances in plain view, and proceeded to seize them under reasonable suspicion that a crime was being committed.

The second part of your question raises doubts, as you indicate the police officer had no warrant to enter. The landlord has no right to let him in without a warrant, and the driving offense does not seem related.

You need the advise of an experienced criminal lawyer at this time.

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Answered on 11/16/00, 8:50 am


Re: Is this an illegal search and seizure?

The police presumably had a valid warrant for the FTAs and came to your house pursuant to the warrants and made a valid arrest of your boyfriend. However, there certainly are several 4th Amendment Constitutional grounds upon which you may be able to collaterally attack the arrest, but it would turn on details that we would have to review, such as the facial validity of the warrants, whether the scope of the warrants gave the police unfettered right to enter the home to make an arrest pursuant to the warrants and if not, whether there was valid consent by someone in the home for their entry, whose home it is, whether there was sufficient identification of your boyfriend, etc.

As to the search and seizure, you have even better grounds for a 4th amendment defense predicated upon their probable cause for the search, the scope and extent of the search, and whether the drugs all were found in plain view and readily identifiable.

In short, you've got some trouble on your hands, but there may be meritorious defenses. I or one of my partners would be glad to speak to you if you wish.

Very truly, Pete Thomas

Petersen, Thomas & Slade

600 Seventeenth Street

Suite 950 South Tower

Denver, Colorado 80202

(303) 260-6424

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Answered on 11/16/00, 9:45 am

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