Legal Question in Criminal Law in California

Search Law Mandates of Execution

Is an officer within the law if they enter a dwelling without the occupants permission, person not at home, no one at home, look around and then get a search warrant to search the premises. The officers came in with no entrance being granted. The occupant at a later time came home and found a document stating what the officers had removed from the home. A search warrant was attached. However, the time of the search warrant being issued was at a time later than when the officers had entered the home. Witnesses will testify that they telephoned the home earlier in the day and that the officers answered ther phone, grilling the caller with questions asking if they knew if ther occupant sold pot or any other drug out of the home. he caller said that not to the knowledge of the person who was being asked the improper question. The officers were in the home when no one else was at home. They entered a locked dwelling. The occupant of the dwelling was charged with 2 felony accounts and remanded to custody when appearing on another charge.

The judge revoked bail and remanded the occupant to custody when appearance was made in court. The person charged with the 2 new felonies then had to post 31,000 dollars bail.


Asked on 7/18/04, 5:38 am

1 Answer from Attorneys
Edward Hoffman Law Offices of Edward A. Hoffman

Re: Search Law Mandates of Execution

There are circumstances under which the conduct you describe would be legal, but they are quite unusual. Police need a very good reason to enter a home without permission and without a warrant, but when they have such reasons (for example, if the building is on fire, if it seems that someone inside urgently needs their help or if they believe in good faith that a felon they are pursuing has gone inside) they can enter. If they see evidence of a crime while in the home, they can obtain a warrant and come back as you describe. Unless they had this type of urgent need to enter the home, their entry was almost certainly illegal.

If the officers discovered the evidence as the result of their illegal entry, then it should be suppressed as the product of an illegal search. The fact that they obtained a warrant before returning doesn't cure the illegality, because the warrant itself would not have been issued had the officers not already entered the home illegally. Here again the rule has exceptions, but this is usually how it works.

I note that your question does not mention why the officers entered the home in the first place. Since you seem to know many other details about what happened, this is a curious omission. My guess is that there is some other relevant information you haven't provided, and if I am right then there is a good chance this information would lead me to a different answer.

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Answered on 7/18/04, 4:11 pm


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