Legal Question in Criminal Law in California

Police misconduct

I live in a rural area on 3 acres. A grass fire led to the discovery of marijuana cultivation. The probable cause for the search warrant was as a result of a local resident (off-duty sheriff) coming on to my property claiming to ''help'' with the fire, while there, he investigated my ATV and called in the VIN number to find out it was stolen. I believe that he was trespassing and therefore searched illegally. The fire dept. did not request him to assist with nor did they need assisstance with the fire, no buildings threatened, etc. He was not in uniform and is not a fireman, what right does he have to come on to my property and start snooping around? Can I file trespassing charges against him?


Asked on 11/19/01, 12:40 am

3 Answers from Attorneys
Robert Miller Robert L. Miller & Associates, A Law Corporation

Re: Police misconduct

Thanks for your posting. You can try to call and have trespassing charges filed, but if there was a fire, the emergency/necessity exemption applies. I would doubt that the police or the D.A. would file that case, and it certainly would not help your defense case for cultivation.

You do have the right to file a formal written motion to challenge the right of the police to do a search and seizure. Such a motion is done under the 4th amendment, and other grounds, and might be appropriate in your case. Your attorney or public defender should discuss this thoroughly with you.

If you'd like more information, representation, or just have any questions, please feel free to call me at 1-877-568-2977 or email me and I'm happy to help.

Sincerely,

Robert Miller

Attorney at Law

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Answered on 11/19/01, 6:12 pm
OCEAN BEACH ASSOCIATES OCEAN BEACH ASSOCIATES

Re: Police misconduct

You may not accomplish anything if you did file tresspass charges. The evidence needs to be excluded as the fruit of an illegal search. You need repesentation. Please call me directly at (619) 222-3504.

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Answered on 11/19/01, 9:50 am
Victor Hobbs Victor E. Hobbs

Re: Police misconduct

You certainly may file charges. The D. A. isn't going to prosecute the off duty police officer. Technically police officers are never off duty. The oath they take to serve and protect is a 24 hour 7 day a week obligation. The officer observed an emergency (exigent circumstances), and although he may have not been needed he didn't know that. He came to help and not to snoop will be his defense.

The matter of an illegal search will have to be raised by a motion when charges are brought against you. Then you've got all the firemen that also may have observed the marijuana. So if the police officer's testimony is struck (and I don't think it will be) you've got all the firemen. The officer's testimony may not be needed.

Sounds to me like the police officer did what he is expected to do. And after 9/11 lots of luck convincing anyone in a jury box/judge's bench that the police should do less to protect the public. Just thank God your name isn't Mohammed.

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Answered on 11/19/01, 10:06 am


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