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WildRover
On and off again


Registered: 09/11/06
Posts: 115
Loc: SE USA
Last seen: 12 years, 10 days
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Quote:
Anonymous said: Like someone else said, they didn't find what was on the warrant, and anything else taken cannot be admitted into court. The warrant was for one thing, they found another, and NOT that one thing.
Your stuff is seized, but you cannot (if memory serves) be charged with it, I think.
Negative. This is wrong on a number of counts. Source (as well as personal experience)
They can and will seize anything illegal that they find in the course of a search. Part of this is the Plan View Doctrine, in that anything that is in plain view is fair game. Like illuminati said, if they are searching for a bike, they can't look in drawers, but if they're looking for a gun, they can check just about anywhere.
This doesn't really apply in illuminati's case, but the other part is that once they arrest you for anything, they are allowed to do a "cursory" search to make sure that nothing is left that can be destroyed later, or to make sure that there isn't a guy in a closet with a gun waiting to shoot them.
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eTarded
Clubbed to death...



Registered: 08/03/09
Posts: 103
Last seen: 10 years, 7 months
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Sorry to hear about your situation, that's really fucked up. Get a lawyer and hope for the best. Good luck to ya bro.
-------------------- Trade List
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Brennus
Student of Life



Registered: 05/31/08
Posts: 3,297
Loc: SE United States
Last seen: 6 years, 2 months
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A good lawyer will get that warrant tossed out if the only reason they got it was for the scum bag friend.
Personally, I would wait a few years and then make sure he doesn't do that to anyone else ever again.
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McDude
Omerta




Registered: 10/19/09
Posts: 752
Loc: Riding the spiral
Last seen: 1 day, 20 hours
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Quote:
WildRover said:
Quote:
Anonymous said: Like someone else said, they didn't find what was on the warrant, and anything else taken cannot be admitted into court. The warrant was for one thing, they found another, and NOT that one thing.
Your stuff is seized, but you cannot (if memory serves) be charged with it, I think.
Negative. This is wrong on a number of counts. Source (as well as personal experience)
They can and will seize anything illegal that they find in the course of a search. Part of this is the Plan View Doctrine, in that anything that is in plain view is fair game. Like illuminati said, if they are searching for a bike, they can't look in drawers, but if they're looking for a gun, they can check just about anywhere.
This doesn't really apply in illuminati's case, but the other part is that once they arrest you for anything, they are allowed to do a "cursory" search to make sure that nothing is left that can be destroyed later, or to make sure that there isn't a guy in a closet with a gun waiting to shoot them.
That sounds right actually. I do recall my friend saying the bong and weed were hidden,they somehow still managed to find it. I know for a fact they didn't take it. Maybe it was like you said,the fact that it was somewhere they had no reason to be looking.
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For cultivation troubleshooting/advice visit us here As below so above I imagine. Drawn outside the lines of reason. Push the envelope, Watch it bend!
 
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illuminati
Strange


Registered: 06/17/07
Posts: 556
Loc: Aboard the T.A.R.D.I.S.
Last seen: 3 years, 8 months
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Re: Busted [Re: McDude]
#11474744 - 11/17/09 03:38 PM (14 years, 6 months ago) |
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UPDATE: Just got back from court where I was supposed to receive my criminal complaint. Apparently they aren't ready, still waiting on testing or some BS. I'm going to talk to this one lawyer tomorrow and see what he says about that warrant.
Also, a few things I forgot to mention in the first post that make this way more BS: When the cops first talked to me, I said "I'm not sure if I want to talk to you without a lawyer, can we get someone here?" To which the cop replied "Are you invoking your right to an attorney?" I then said, "I don't know what that means, does that mean I have to go to jail right now?" I was then cuffed and put in the back of the squad car. Now, I though police had to read you your rights when they arrest you, but maybe if you plead the 5th they assume you know your rights. In either case, I think it's pretty clear I didn't understand my rights. Also, the warrant was NOT SIGNED by a judge when they searched my house. I'm not sure if that matters because they did call the judge and he said he would sign it.
-------------------- I didn't get turned on I just got turned I wasn't as aroused as I was concerned for each one of 'em I've hurt and every time I've been burned I've got a lot to teach but even more to learn
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Alan Rockefeller
Mycologist


Registered: 03/10/07
Posts: 48,392
Last seen: 2 days, 19 hours
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Quote:
If you associate with sketchball people let the answering machine do it's job. Anyone who likes mushrooms or whatever else should consider that S.O.P.
I don't see how not answering the call would have helped him out in any way.
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call ur lawyer ur fine. the warrant was a for a 9 mil pistol that they didnt find. they had no right to take ur grow.
That is not my understanding of how the legal system works. Since the police had a complaint that someone was there with a gun, the warrant will be found valid and all evidence collected during the raid will be able to be presented as evidence.
Just because there was no gun found doesn't mean the warrant will get tossed.
Even if his friend tells the court "Ok I lied, there never was a gun", the police still followed the procedure in good faith, so the exclusionary rule can not be used to suppress the evidence.
Hopefully I am wrong on that point.
It may help to put the guy on the stand and make him describe the gun and everything else to the court and see if you can make him admit he is lying, or poke some holes in his story. But if the warrant is still valid due to the good faith exception to the 4th amendment, that might just be a waste of time and money.
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it sure doesn't make them look too good when they didn't find the one thing they came for.
I don't think that matters much. People point guns at each other all the time, then hide the gun somewhere else in case the person called the cops. Gun or no gun, they just run you through the system.
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Like someone else said, they didn't find what was on the warrant, and anything else taken cannot be admitted into court. The warrant was for one thing, they found another, and NOT that one thing.
The exclusionary rule only exists to deter police misconduct, not citizen misconduct. The "good faith" exception to Fourth Amendment violations was established in United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984).
For more information about the exclusionary rule and United States vs. Leon, read http://law.jrank.org/pages/6644/Exclusionary-Rule.html
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A good lawyer will get that warrant tossed out if the only reason they got it was for the scum bag friend.
How?
Its still highly advisable to hire a private lawyer, but its very likely that all that lawyer will do is negotiate a plea bargain. So try to just pay him for that part, which should be a lot less expensive than going to trial. I'd start by interviewing a half dozen lawyers, and ask all of them how they would handle your case, specifically the warrant issue, and how much they charge if you end up pleading out. Ask the lawyers how United States vs. Leon will affect your case. Don't hire a lawyer that doesn't have a solid answer for that.
Also expect it to take several months to be indicted on the manufacturing charge. The crime labs are usually pretty backed up. Its important to keep your house clean for the next several months, at least.
Focus on exercise, study and jobs instead of sitting around the house or using drugs.
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Adden

Registered: 06/04/03
Posts: 39,201
Loc:
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Alan Rockefeller said: Even if his friend tells the court "Ok I lied, there never was a gun"
I'd sue the bloody shit out of him if that was ever recorded or transmitted.
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illuminati
Strange


Registered: 06/17/07
Posts: 556
Loc: Aboard the T.A.R.D.I.S.
Last seen: 3 years, 8 months
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Wow dude, that is some fantastic advice, thank you.
-------------------- I didn't get turned on I just got turned I wasn't as aroused as I was concerned for each one of 'em I've hurt and every time I've been burned I've got a lot to teach but even more to learn
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naum



Registered: 10/09/07
Posts: 4,069
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*IANAL*
I think there is a chance that it could be dismissed. Probable cause is hard to establish based solely on hearsay, but really it comes down to the court.
In the past, courts used a two-part test (Aguilar-Spinelli test) to issue probable cause based solely on a confidential informant's word. That was explicitly abandoned in favor of "the totality of circumstances" in by the Supreme Court in the Gates v. Illinois decision (1984). Pretty much that means that it is up to the judge; this makes it good deal harder to prove that there was no probably cause. However, some states still use the Aguilar-Spinelli test.
If the OP lives in a state which still employs the Aguilar-Spinelli test, he might be in luck. I would think that the veracity part (at the very least) of the two-part test for probable cause has not been satisfied. If warrant is based on hearsay evidence and the accuser is NOT a reliable source of information in the course of investigation (i.e. a confidential informant) there is no probable cause. Therefore, the search warrant is invalid and the search illegal.
If the OP lives in a state with goes by "totality of circumstances", there is still a possibility that a good lawyer might be able to successfully argue that there was no probable cause.
OP: Seriously, get the best lawyer you can (or can't!) afford.
Edited by naum (12/08/09 06:55 PM)
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TODAY
Battletoad


Registered: 09/25/03
Posts: 10,218
Loc: Metropolis City, USA
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Quote:
Anonymous said: Like someone else said, they didn't find what was on the warrant, and anything else taken cannot be admitted into court. The warrant was for one thing, they found another, and NOT that one thing.
Your stuff is seized, but you cannot (if memory serves) be charged with it, I think.
Have your lawyer look into these things.
Go to the court and talk to a secretary and get copies of EVERYTHING they have to date.
Read the 4th amendment. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
So, bring this to the attention of a lawyer and see if you can't get all of this shit to go away right quickly.
you'll find that the constitution can't be interpreted literally. precedent will always pwn you and a good lawyer will know all the details. lawyer consultations are free too. don't be bullied and do call about 10 lawyers. just finished dealing with the courts myself. good luck OP.
--------------------
ca'rouse (k-rouz) intr.v. To engage in boisterous, drunken merrymaking.
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WildRover
On and off again


Registered: 09/11/06
Posts: 115
Loc: SE USA
Last seen: 12 years, 10 days
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Quote:
illuminati said: Now, I though police had to read you your rights when they arrest you, but maybe if you plead the 5th they assume you know your rights. In either case, I think it's pretty clear I didn't understand my rights.
Unfortunately, I think that they only have to Mirandize you before they begin an interview/interrogation. By law, when you invoke your right to attorney, they have to stop questioning you until you get one. Same goes for invoking the right to remain silent. Anything you say before that point, whether you understand your rights or not, could still be used against you. I don't think that you not knowing your rights is an issue, unless they use something you said against you in court. This is based on my understanding of Miranda rights as outlined in this pinned link, and someone who is more familiar with the nuance of the law could help more.
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Doc_T
Random Dude




Registered: 03/06/09
Posts: 42,395
Loc: Colorado
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^^^ agreed. I doubt you can invoke your rights by name, then turn around and claim ignorance of your rights. If I was on your jury, I know what I'd think about that.
-------------------- You make it all possible. Doesn't it feel good?
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illuminati
Strange


Registered: 06/17/07
Posts: 556
Loc: Aboard the T.A.R.D.I.S.
Last seen: 3 years, 8 months
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Yea, I talked to my lawyer today about that, they only have to read you your rights if they want to continue questioning you after they've arrested you. Anyway, I'm not sure what's going to come of this. I was pretty optimistic that there would be a good chance the warrant would get thrown out when I went in to talk to him, but I'm not so sure now. It's not about proving the kid is nuts, it's about proving he's an unreliable source of information, which I thought was going to be the same, but I have to find some specific examples of times he's lied. I'll keep you guys posted.
EDIT: Doc_T: I didn't invoke them by name, I said, "I'm not sure if I feel comfortable talking to you without a lawyer, can we get someone here?" Which in reality is pretty much the same thing I guess.
-------------------- I didn't get turned on I just got turned I wasn't as aroused as I was concerned for each one of 'em I've hurt and every time I've been burned I've got a lot to teach but even more to learn
Edited by illuminati (11/18/09 10:44 PM)
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Alan Rockefeller
Mycologist


Registered: 03/10/07
Posts: 48,392
Last seen: 2 days, 19 hours
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Quote:
By law, when you invoke your right to attorney, they have to stop questioning you until you get one.
Not anymore, per recent supreme court case.
See http://www.policeshootminorities.com/2009/08/miranda-law-weakened.html
When I was looking for the above link I found this and found it highly amusing:
"In 1963, Ernesto Miranda was arrested in Phoenix, Arizona for stealing $8 from bank worker and charged with armed robbery. He already had a record for armed robbery, and a juvenile record including attempted rape, assault, and burglary. While in police custody he signed a written confession to the robbery, and to kidnapping and raping an 18-year-old woman 11 days before the robbery. After the conviction, his lawyers appealed, on the grounds that Miranda did not know he was protected from self-incrimination.
The case, Miranda v. Arizona, made it all the way to the Supreme Court, where the conviction was overthrown. In a landmark ruling issued in 1966, the court established that the accused have the right to remain silent and that prosecutors may not use statements made by defendants while in police custody unless the police have advised them of their rights, commonly called the Miranda Rights. The case was later re-tried, Miranda was convicted on the basis of other evidence, and served 11 years. He was paroled in 1972, and died in 1976 at the age of 34, after being stabbed in a bar fight. A suspect was arrested but chose to exercise his right to remain silent, and was released. "
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WildRover
On and off again


Registered: 09/11/06
Posts: 115
Loc: SE USA
Last seen: 12 years, 10 days
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Thanks for posting that link , although I don't understand why they're saying that. It seems like the issue for Montejo was that he waived the right to counsel, was questioned, was appointed counsel, again waived the right before an interview, then talked to the cops. It seems like his contention was that although he didn't say that he wanted an attorney, they should have assumed that he did, because he never said that he didn't want one. From my understanding, Montejo thought that his Sixth Amendment right to counsel was violated because of this. This is what the SCOTUS rejected, or in other words, if you don't indicate that you want a lawyer when Mirandized, the police are to assume that you are waiving that right until you say differently.
It seems (to me) from Montejo v. Louisiana that police are still required to cease questions upon invocation of the right to counsel, but only until another critical stage is reached. Then, you have to once again invoke that right.
And there's still the right to remain silent.
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Adden

Registered: 06/04/03
Posts: 39,201
Loc:
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Quote:
A suspect was arrested but chose to exercise his right to remain silent, and was released.
Irony!
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Jabbawaya

Registered: 07/10/05
Posts: 1,479
Last seen: 10 years, 5 months
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Re: Busted [Re: Adden]
#11498219 - 11/21/09 11:33 AM (14 years, 5 months ago) |
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So sorry this happened. Best of luck to you, I hope things work out. Get a good lawyer and stay positive.
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illuminati
Strange


Registered: 06/17/07
Posts: 556
Loc: Aboard the T.A.R.D.I.S.
Last seen: 3 years, 8 months
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Thanks man, I go into court Wednesday to receive my criminal complaint and to find out what they're officially going to charge me with. I'll definitely keep you guys updated. Turns out, when the kid called me in, the cops went to his house to talk to him, and aparently it 'smelled like a pot farm,' so they got a warrant to search his house! Karma's a bitch. I also found out that his open case is because he called the cops on his ex girlfriend and claimed that she tried to kill herself. When the police got there, the found out that she hadn't been threatening to kill herself, but he told her to. I've been looking into lawyers, and I found one who is a judge in a neighboring city, which is great. Only $4k retainer, which isn't too bad considering the circumstances. Finances permitting, I may hire another lawyer in addition.
-------------------- I didn't get turned on I just got turned I wasn't as aroused as I was concerned for each one of 'em I've hurt and every time I've been burned I've got a lot to teach but even more to learn
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naum



Registered: 10/09/07
Posts: 4,069
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I looked but I couldn't find any exact precedent for your case. Hopefully your lawyer(s) will be successful challenging the warrant on the basis that there was no probable cause. Even though Wyoming is a totality of circumstances state, a citizen informant's word (or confidential informant's word for that matter) should not be taken at face value. Depending on the exact circumstances, the local ACLU might be interested in your case. Good luck.
-------------------- Let's upgrade our security practices and move toward client-side PGP for encrypted PMs. My Public PGP Key: hxxps://www.shroomery.org/forums/showflat.php/Number/24002249#24002249
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illuminati
Strange


Registered: 06/17/07
Posts: 556
Loc: Aboard the T.A.R.D.I.S.
Last seen: 3 years, 8 months
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Re: Busted [Re: naum]
#11513559 - 11/23/09 06:34 PM (14 years, 5 months ago) |
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HELL YEA, I didn't even think of the ACLU. I'm going to contact them ASAP. I feel my fourth amendment right has been seriously violated.
EDIT: Didn't really feel like making another post on the end of this, but I just wanted to say how much I really love all of you, and I know that probably doesn't mean much coming from someone you only know on the internet, but I really do. Any time I'm feeling like shit over this, I just re-read this thread and I feel better. Thanks guys, you will never be forgotten.
-------------------- I didn't get turned on I just got turned I wasn't as aroused as I was concerned for each one of 'em I've hurt and every time I've been burned I've got a lot to teach but even more to learn
Edited by illuminati (11/23/09 07:38 PM)
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