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OfflineTri High
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Caught by the Police...What next?!
    #8504611 - 06/09/08 06:24 PM (15 years, 9 months ago)

Okay, here's the run down:

I've had these things goin' since January.  They were still in mycelial stages, but in little tupperware things, colonating horse poop and straw in the dark....

11:30 pm - A friend steals a sign from campus and drags it to our house, leaving scratch marks in the side walk. 

5:00 am - My room mate answers the door to find police outside of it, walks out, closes it behind him.  Police say "I smell weed", put him in hand cuffs, and enter the house.  They proceed to wake us all up out of our beds.  Asked us if we gave consent to search the rooms, and I said I didn't.  Not two minutes later they put me in hand cuffs and arrested me for "receipt of stolen property". 

8:10 am - I am served a search warrant in a jail holding cell.

10:00 am - I am questioned about the sign, and about what I had going on in my room.  Admitted the mushrooms and everything, was given bad news.

12:00 pm - booked in the local jail.  On hold for 24 hours.

6:18 am (next day) - I am released from jail.

15 days later - I receive an inventory of things taken from my room which included all of the pot and paraphernalia from the room adjacent to my own, for which there was no search warrant, and which should not have been on the inventory, as stipulated in the search warrant.  The officer informed me that he had turned the police report in to the prosecuting attorney on this day.

Okay, the way that jail and everything works is that if they get an arrest warrant while you're detained, you must make bond or sit in jail until your court date.  So, they had no warrant after 24 hours.  They still don't.

Today, a month later, I was checking in with the local pd to see if I could receive a copy of their report, and also I was checking with campus to see if they were going to pursue sanctions on me...They said that they didn't know if they could release the report to me, and that they don't know if the report had been submitted to the prosecutor, and that they were waiting for results back from the FBI about my stuff and I guess if it had psilocybin in it yet...in which case it'd be illegal.

So, today, a month later, the Campus hasn't gotten a report, which leads me to believe that the prosecuting attorney hasn't gotten a report either.  Since I'm not in jail now, I assume that the prosecuting attorney isn't going to prosecute me, because of the illegal method of entry (violation of the 4th amendment), and the "fruit of the poisonous tree" addition or part of the 4th.  But I made that assumption because I had thought that he had the official report...Which now it turns out that he might not have...

At any rate, if I do go to jail...Really shitty.  If I don't, I'll let you know what the FBI's report on my mushrooms turns up.  i.e. whether or not the mycellium contains active psychoactives.  It says somewheres on the board that it does, but I'll let you know what the FBI's report says.

I really hope I'm not fucked, and let this serve as a reminder to you all to not let stupid friends fuck your shit up!


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Invisiblejohnm214
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Re: Caught by the Police...What next?! [Re: Tri High]
    #8504990 - 06/09/08 08:02 PM (15 years, 9 months ago)

Quote:

8:10 am - I am served a search warrant in a jail holding cell.




So did they have the warrant prior to entering the house?

What did the warrant say? i.e. did it stipulate what part of the house could be searched?

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OfflineTri High
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Re: Caught by the Police...What next?! [Re: johnm214]
    #8505146 - 06/09/08 08:45 PM (15 years, 9 months ago)

Nope, no warrant prior to entering the house.  Only "we smell weed".  After entrance they saw some seeds, stems, and crap on the table and claimed they saw it before hand...but the lights were all off and what not.

My friend answered the door, walked out, closed it behind him, at which time they claimed to smell weed, put him in cuffs, and entered. 

Woke us up,etc...

In the search warrant for my room, it said that my room, in the back corner of the house was to be searched for marijuana and narcotics, because of their suspicion that I was harboring them there.  It stated that I'd receive an inventory (I understood immediately) of all of the items taken via the search warrant. 

The university cops were the first on the scene, and the city cops were the one that put my room mate in hand cuffs.  The city cops turned the case over to the U-Po, and wanted nothing to do with it"" says my room mate friend (they were at the house until 11 am while I was being held and booked and what not). 

It stipulated that only my room was to be searched. 

When they were looking for other people in the house sleeping they saw a pipe on the desk upstairs, but no guy so they couldn't search it, and they didn't include that room on the warrant (my shit was in that room only a week and a half prior to the whole incident...bad luck, eh?)

My room mate that they put in hand cuffs initially was not taken to jail, but was read his miranda rights while we were being woken up.  Was never taken to jail...

My Probation Officer (yeah, I was on probation prior to the search...) said that if he was under arrest, they had the right to enter...but the lawyer I consulted said that was bs and everything that happened after their illegal entry was "the fruit of the poisonous tree"...

I would like others' opinions though.


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OfflineChemy
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Re: Caught by the Police...What next?! [Re: Tri High]
    #8505147 - 06/09/08 08:45 PM (15 years, 9 months ago)

It can take a very long time for lab results. Especially if you are on bond, while you're in jail they only have a certain time frame to file charges and make first appearance.


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OfflineTri High
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Re: Caught by the Police...What next?! [Re: Chemy]
    #8505159 - 06/09/08 08:48 PM (15 years, 9 months ago)

Not on bond right now..Didn't need to get bonded out.  I was released, no charges..
The guys that stole the sign and dragged it to our house, I was told, had their case dropped by the university police, but still had to pay for the costs of the sign....

I'll be sure to keep everyone on here posted.


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OfflineChemy
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Re: Caught by the Police...What next?! [Re: Tri High]
    #8505170 - 06/09/08 08:50 PM (15 years, 9 months ago)

Are you sure the evidence seized was sent to the FBI?


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Edited by Chemy (06/17/08 06:46 AM)

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Re: Caught by the Police...What next?! [Re: Chemy]
    #8505223 - 06/09/08 09:07 PM (15 years, 9 months ago)

sounds like you have a good case. 

Don't get cocky about the length of time.  They charged someone I knew with a felony 9 months after his arrest, arraignment, and dismissal of charges.


What state is this in?  WOuld help.

SOunds to me like the entry was illegal.  Usually you can't enter houses w/out a warrant unless invited in or in hot persuit.

I don't know if marijuana smoke is enough, and I really hope, and suspect- though I'm not sure, its not.  Additionally, whether they saw shit or not from the outside is hopefully irrrelevant.  They had no reason they couldn't have gotten a warrant, what was the rush?

But if you tell us the state maybe someone can find a case that answers this question.  Might be some federal law too, but I don't know.

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OfflineTri High
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Re: Caught by the Police...What next?! [Re: johnm214]
    #8505476 - 06/09/08 10:18 PM (15 years, 9 months ago)

It was in MO. 
I know of no cases...but, exactly.  What was the rush to get in?  No exigent circumstances, no invitation to enter, and there was no marijuana smoke for them to smell.  The couldn't have seen shit from the outside...The stolen swag was propped up on the other side of a wall that is opposite the window. 

I was told that the evidence was seized and sent to Jefferson City, capitol of MO.  I don't know what Quantico is...Now I do...but they said it was sent to the FBI in Jeff. City, who then could have forwarded it...

And the time, yeah, I know.  I've been told by a few people to not let that get me uppity.  But I'm hoping that since it's already been so long,and the shit's been in the prosecutor's possession (so I'm told, will find out later), that nothing's going to happen...

What's the length of time till someone's off the hook?  5 years, no?
Can someone be expedited to another state if a cop runs a warrant on someone from another state?

Thanks a lot for the help guys.  Truly!

Shitty if the stuff grows and they get me with later stages opposed to the stage it was in when seized!


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Re: Caught by the Police...What next?! [Re: Tri High]
    #8505664 - 06/09/08 11:14 PM (15 years, 9 months ago)

So if the sign was found in a common area and they didn't know who had it that shouldn't be enough to search your room if they had no cause to arrest you for the sign, even presuming they entered legally and got the sign in the common area.

So here's my take:  The officers had no cause to enter even if their was some plain sight view.  There wasn't even a reason to enter if they knew the sign was in there, absent probable cause and a warrant.  They could have entered if someone gave persmission, but when you refused permission to search your room, they couldn't have then searched unless they had legaly entered and had probable cause, i.e. plain sight evidence of illegality.


It sounds pretty good:

The police bear the "heavy" burden to prove that a warrantless in-home arrest, which is presumptively unreasonable, is justified.  Welsh v. Wisconsin (1984) 466 U.S. 740

Even if they had cause to enter the house, they allready found the sign right?  And it was in a common area, right?  So that should have ended the search even if it was intiilally lawful, which I strongly doubt.  An exception to the fourth amendment must be circumscribed to the needs of that exception.  Even if there was some cause to enter that wouldn't justify extending the search to your room:
A warantless search of a home must be"strictly circumscribed by the exigencies which justify its initiation,"
Mincey v. Arizona (1978) 437 U.S. 385

What I imagine they'll argue is that they had cause to arrest you for the sign, and the search of your room was permissable as incident to that arrest.  In this case, you must have been found or arrested in your room, and the arrest and entry must have been lawful.  So while the entry was probably wrong to begin with, mooting this inquiry, were you arrested or found in your room?


So was there any plain view evidence of the items seized in your room?  If not, the case is certainly doomed since you didn't consent to the search, and refused before the search began, right?
Quote:

The "plain view" doctrine does not render the search "reasonable" under the Fourth Amendment...

the search was invalid because, as the State concedes, the policeman had only a "reasonable suspicion" -- i. e., less than probable cause to believe -- that the stereo equipment was stolen. Probable cause is required to invoke the "plain view" doctrine as it applies to seizures.


    Arizona v. Hicks, 480 U.S. 321

And the lack of urgency and the fact that no danger was imminent cousel against finding the warrantless entry was needed to begin with:
Quote:


Under certain circumstances the police may without a warrant seize evidence in "plain view," though not for that reason alone and only when the discovery of the evidence is inadvertent. That exception is inapplicable to the facts of the instant case, where the police had ample opportunity to obtain a valid warrant, knew in advance the car's description and location, intended to seize it when they entered on petitioner's property, and no contraband or dangerous objects were involved.



COOLIDGE v. NEW HAMPSHIRE; 403 U.S. 443

Could you answer these questions, please, you might have in some way allready, but just so we're clear:

Did anyone consent to any search at all, including you?
Did you plainly refuse permission to search your room? 
Does anyone else share your room?
Were any items in your room in plain view? (shoudln't matter but would help if not)
Was there any warrent, arrest or search, issued prior to the entrance into the house at all? 
What were you arrested for? 
Where were you arrested?  Did the police find you in your room or in a common area?



So at the end of my rambling analysis two things:

1.  The entry was probably illegal unless someone consented.  Simple "I smelled smoke" bullshit isn't enough, and is just the pigs usual retort for traffic stop supresions.  DOesn't work, piggies, for homes where no urgency is at hand.
2.  Even if the entry was legal, they had no reason to enter your room and search.  If they had cause to arrest you for the sign they may have had cause to search the room.  Did they find you in your room, and did they arrest you in your room?

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OfflineClammyJoe
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Re: Caught by the Police...What next?! [Re: Tri High]
    #8505667 - 06/09/08 11:16 PM (15 years, 9 months ago)

By the time you go to trial the evidence will probably be worthless.

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Re: Caught by the Police...What next?! [Re: johnm214]
    #8505677 - 06/09/08 11:19 PM (15 years, 9 months ago)

Quote:


My Probation Officer (yeah, I was on probation prior to the search...) said that if he was under arrest, they had the right to enter...but the lawyer I consulted said that was bs and everything that happened after their illegal entry was "the fruit of the poisonous tree"...




Bullshit.  How does smelling smoke allow an entry?  Your probation officer is an idiot and likely is confusing traffic stops w/ home searches.  Your case is similar to the following case.  While the officer may have cause to arrest the guy for the smell of marijuana, arguendo, that doesn't give him cause to search the house, especially your room.


Quote:

1. Where officers detected the odor of burning opium emanating from a hotel room, entered without a search warrant and without knowing who was there, arrested the only occupant, searched the room and found opium and smoking apparatus, the search violated the Fourth Amendment to the Federal Constitution; and a conviction for a violation of the federal narcotic laws based on the evidence thus obtained cannot be sustained. Pp. 11-17.


JOHNSON v. UNITED STATES, 333 U.S. 10

And they probably couldn't have even arrested the guy who answered the door from smelling smoke.  When you don't know where the smoke comes from, if there are more than one persons in the room, you don't have probable cause to arrest for possesion or use when a single person answers the door:

Quote:

4. It being conceded that the officer did not have probable cause to arrest petitioner until he entered the room and found her to be the sole occupant, the search cannot be sustained as being incident to a valid arrest. Pp. 15-16.


  Ibid

Does the terms of your probation require you consent to searches by any officer?  What exactly are your terms in regards to searches?

And answer my previous questions.  Especiallywhy were you arrested?


The probation status may complicate matters, but it shouldn't matter if they had no cause to enter the house in the first place.

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OfflineChemy
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Re: Caught by the Police...What next?! [Re: Tri High]
    #8505680 - 06/09/08 11:20 PM (15 years, 9 months ago)

Quote:

Tri High said:
I was told that the evidence was seized and sent to Jefferson City, capitol of MO.  I don't know what Quantico is...Now I do...but they said it was sent to the FBI in Jeff. City, who then could have forwarded it...




The FBI does handle some drug cases, but for a case like this I think what was seized will wind up in a DEA regional lab.

This sounds like a "pick-up" case where the feds take the case from the municipal agency, happens around here quite a bit, mostly if the case is big enough or involves guns.

Quote:

Tri High said:

What's the length of time till someone's off the hook?  5 years, no?




Depends on whether the case is handled by your state or federal.
Mo statute of limitations (felony)
Class A felony may commence prosecution at any time
All other felonies must commence prosecution within 3 years.


Quote:

Tri High said:

Can someone be expedited to another state if a cop runs a warrant on someone from another state?




Depends on the crime, if it is a big enough case the state will extradite nationwide, if it is federal, the US Marshals will get you and put you in the famous grey jumpsuit.


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OfflineChemy
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Re: Caught by the Police...What next?! [Re: johnm214]
    #8505692 - 06/09/08 11:24 PM (15 years, 9 months ago)

Johnm214 a person on felony probation has no 4th amendment rights, to their car, residence or person.


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Re: Caught by the Police...What next?! [Re: Chemy]
    #8505707 - 06/09/08 11:29 PM (15 years, 9 months ago)

Well it depends on the terms of the probation.  I believe your statement is more correctly that they don't ipso facto have 4th amendment rights on probation- the probation conditions can limit those rights.

All I'm aware of is that:
1. State's may limit the rights of probationers
2. The exclusionary rule doesn't apply to probation revocation hearings, as these aren't really criminal.

So the original poster may have probation revoced on the fruits of the seizure, but that doesn't mean neccesarily that the entry or search of his room/house was legal, especially if the guy who was arrested was smart and affirmativly told the police not to enter/ refused consent.

Nevertheless, the threshold issue of whether the cops could enter is probably no, unless the guy allowed entry.  Just cuz someone has residence in a house, doesn't mean he can consent to the entry if someone else is present and refuses or the cops have no cause to enter the house.

If the poster himself had answered the door it may have been a different matter.

Original poster, did the person who answered the door affirmitivly refuse the police entrance (i.e. "don't enter"  "No, you don't have permission to enter" et cet)?  Did they ask for permission to search or enter?  What was the response?



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OfflineChemy
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Re: Caught by the Police...What next?! [Re: johnm214]
    #8505741 - 06/09/08 11:41 PM (15 years, 9 months ago)

Tons of info on searches in Mo
http://www.showme.net/~capegadm/pa/INETPUBSEARCH&SEIZURE.htm

Quote:

State v. Yule, 905 So. 2d 251, 264 (Fla. App. 2d 2005) (Canady, J., concurring) ("The fact that a probationer shares a residence with another does not nullify the authority of probation and law enforcement officers to conduct a properly justified warrantless search of the probationer's shared residence. A person choosing to live in the same home with another who is subject as a probationer to warrantless searches has a corresponding diminished expectation of privacy




Quote:

People v. Pleasant, 19 Cal. Rptr. 3d 796, 798 (Cal. App. 4th 2004) ("Persons who live with probationers cannot reasonably expect privacy in areas of a residence that they share with probationers. ... Since [co-occupant] gave a search waiver as a condition of probation, law enforcement authorities could, without a warrant or probable cause, search areas used exclusively by [the probationer], areas within 'common authority'[] of the probationer and fellow occupants and areas which she 'normally had access.'");




Quote:

State v. Johnson, 748 P.2d 1069, 1073 (Utah 1987), abrogated on other grounds by State v. Doporto, 935 P.2d 484 (Utah 1997) ("A warrantless search of a parolee may result in an invasion of privacy, at least to some extent, for those living with the parolee."). Those who voluntarily choose to live with probationers, like any other voluntary co-occupant living arrangement, assume the risk they will have diminished their Fourth Amendment rights.




Quote:

Yule, 905 So. 2d at 264 (Canady, J., concurring) ("A person choosing to live in the same home with another who is subject as a probationer to warrantless searches has a corresponding diminished expectation of privacy.").




So even if you just live with someone on probation you have no 4th amendment rights what in the fuck???


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Re: Caught by the Police...What next?! [Re: Chemy]
    #8505799 - 06/10/08 12:00 AM (15 years, 9 months ago)

Damn, that is fucked up! 

EDIT:  Just realized that these don't appear to be MO opinions, except for one.  Chemy, are any of these MO opinions?  Hopefully the terms of his probation or the state law doesn't give a probationer no 4th amendment rights.  This could be a big problem if the pigs and prosecutor succesfully seize it :frown:

The second section is the ONLY one that makes any sense.  The "diminshed privacy" could only come from the commonlaw principle that someone who shares a residence's common areas expects the cotennant to be able to have guests in those areas, not that the police get to enter a probationer's house.  If flows from the rights of a person to consent to guests.

However, the supreme court has ruled that it works the other way too, that a present and objecting cotenant can refuse permission for the police to enter even with one tenant's consent, which is inline with what the normal social rules are:  if your invited into a house by an inhabitant, but the other inhabitant says "get out, you're not welcom in my house" you wouldn't feel welcome, even moreso for the police.

So I think some of those stupid ass rulings are effectivly overruled to the extent they suggest that the police can enter a shared premises over the objections of a present cotenant.

What do you think?


This is why its so important for people to know their rights.  This whole issue is likely moot per the supreme court's reasonable decision that the present and objecting cotenant can prevent police from entering even with the consent of another occupant, IF someone other than the probationer told the police to gtfo or "i refuse consent".  Hopefully the folks in this case were smart.

Makes sense for probation purposes too, the probationer consents automatically to the search per terms of probation, just like a normal search, but that doesn't negate the rights of the other occupant, if present, to refuse.



The other issue is that if the police even know the guy is on probation?  I doubt that is really relevant, though it should be- usually the court's rule that the legality of a search isn't depnendant on what the specific officer knows, only what the facts are to an objective observer.

But, if the original poster shuts up, maybe he'll get really really lucky and the prosecutor won't know he's on probation and if it goes to a supresion hearing the judge won't either- unlikely though.


Chemy, do you agree?  I think another  guy there objecting could refuse the search under the US supreme's rulings, and that the police couldn't do shit about it, except maybe enter the probationer's room through a window or something.

Hopefully the probation issue doesn't get raised.  That could be a big problem under the total bullshit rullings of the MO courts.



So again, original poster, did the guy who was arrested or anyone else in the house affirmitivly refuse the police permission to searhc, or tell them "get out/ I don't consent to your search" ?

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Re: Caught by the Police...What next?! [Re: johnm214]
    #8505838 - 06/10/08 12:19 AM (15 years, 9 months ago)

Chemy, found some information about the federal law as interpreted by the US appeals court for MO.

Basically it supports, though unclearly, what I said in the above:  The terms of probation may be such that the probationer must consent to searches, however; those terms must actually exist, i.e. their must be actual rules or conditions of probation establishing the search waiver, it doesn't follow that all folks on probation, without rules requiring it, must waive their rights.

Makes sense to me, though the opinion is unlear, it does cite a much more clear case out of the second US circuit, which explicitly says this.  what do you think?

Quote:

Thus, Griffin stands for the proposition that HN4Go to this Headnote in the case.reasonableness for probationary searches may be established by statute, rather than by warrant....

Here the district court carefully evaluated the particular needs of Schoenrock, and concluded that only the disputed special conditions [search waiver] would suffice to ensure compliance with the other probation terms. Griffin compels us to hold that the district court's findings leading to the imposition of the special search conditions were sufficient to make those conditions reasonable for fourth amendment purposes.

[In footnote re: this section:]
United States v. Rea, 678 F.2d 382 (2d Cir. 1982), by contrast, ruled unconstitutional a warrantless search carried out by a probation officer in the absence of a probation term authorizing such a search. At least one circuit, however, has allowed such a search if the probation officer reasonably believed the search to be necessary to carry out the purposes of the probation. See United States v. Duff, 831 F.2d 176, 179 (9th Cir. 1987).





USA v. Schoenrock; 8th circuit

The "by contrast" language in the footnote is interesting, cuz the holding of the cited court doesn't seem to conflict with the ruling in the case above.  Perhpas the difference is whether, as the 2nd cir. held, the search waiver must be in a rule of probation, whereas the present case held that the conditions may be imposed by statute, judge, or probation department.

What do you think?  I think this case, while not barring further erosion of probationer's rights, stands for the position that the search must be persuant to a rule, statute, or judge's condition at sentencing.

Seems reasonable.

AND, since the probation terms I've seen only relate to searches at the direction of the probation department, and this doesn't seem to be the case here, even if the probation rules allowed searches, if they were only searches at the direction of the probation office, he might still get off w/ it being illegal.  Since the police presumably didn't know anything about the probation status, and the P.O didn't know about the sign caper, hopefully the evidence will be excluded.

The guy still might get a probation violation out of it, and there's likely nothing he can do about that, but hopefully the thing he's on probation for is minor.

Original poster:  What are you on probation for, or if you don't want to say so as to no ID yourself, what is the maximum penalty you could get for that offense and a probation violation?  Also, what are the terms of your probation- is there any requirment that you consent to searches?  What exactly is the terms?

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Invisiblewickedsick
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Posts: 701
Re: Caught by the Police...What next?! [Re: ClammyJoe]
    #8506853 - 06/10/08 10:21 AM (15 years, 9 months ago)

Quote:

ClammyJoe said:
By the time you go to trial the evidence will probably be worthless.




WORD :smile::thumbup:


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You don't need to drill a lot of holes.  Some growers choose to fan several times per day instead.
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InvisibleLiquidkick
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Re: Caught by the Police...What next?! [Re: Tri High]
    #8507728 - 06/10/08 03:10 PM (15 years, 9 months ago)

Sometimes it takes police months to get their shit together and have the prosecutor charge you.  I have seen charges sent in the mail 7 months after an incident. 

Start saving as much cash as possible now.

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OfflineTri High
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Re: Caught by the Police...What next?! [Re: johnm214]
    #8507947 - 06/10/08 04:24 PM (15 years, 9 months ago)

The two that were home consented to their rooms being searched.  One guy, the one that answered the door, but didn't give permission to enter the house, showed them where all of his weed and pipes and shit were. 

I said, okay, you guys are looking for the sign, here it is.  Some dick drug and left it here last night.  I don't flippin' want it. 

"no, I don't give you consent to searching my room.  I know my rights". 

Then "well, when people don't consent, it usually means they're hiding something..."

Then "you're under arrest for receipt of stolen property".

Then my probation officer came and talked to me while I was being questioned, so the police know that I am on probation.


I'm on probation for a DWI.  So it's a misdemeanor, I believe.  My probation officer and I have made a deal to where she won't violate my probation status if I passed a drug test...well, I did.  And she said that she'll still fault me if the case comes up.  My lawyer said that he can get me off probation when I'm done with all my service, satop, and vip, so that's ballin.

So, the guy that answered the door did allowed them to search his room after they had already entered the house.

My probation provides that my p.o. can come in and search at any time.  it says nothing about the 5-0.  I think the max that can happen because of a dwi while on probation, first offense, is max of 10 days jail time and a conviction on the record.

No, the stuff in my room was under my bed, which is raised a good 4.5 feet from the ground, and it has black sheets going all around it.

When awoken, the cop asked "what is in that case on your desk?"  It was a cd case, full of cd's.

Cops found nothing but my experiment through their efforts.

Called the cop that delivered the inventory last night and he said that it was affirmative that he DID turn in the official report.  I haven't heard from the secretary at the PD about whether or not I can receive the report, which leads me to believe something fishy is up with that...I'll look into it tomorrow because she's already left the office today.

Thanks for the info fellas.  Keep the info comin' if you can, and I still have more of the above to read.

"start savin' all the cash I can"  -  Good call!  and Will do!  ($1500 for my previous, dwi lawyer, who works meth cases)


--------------------
you just need money to get laid - starfire_xes

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