Legal Question in Criminal Law in California

Search Warrant, Who and Where can they search?

I live with my father and we rent to another person who rents and occupies 1 room of our 4 bedroom house. A search warrant was issued and the police searched our entire house. The ONLY name on the warrant was my tenants. The warrant was issued because my Tenant was suspected of a residential burglary and the items would be found inside. I was not involved in the burglary at all. The police entered our home and searched Brads room where they found some of the items they were looking for. Then they went to my room, my door was closed. In my room they found some of the items stolen because we live in the same house and it was just left there by my tenant. So upon going into my room they found the stolen items and also a DEAD UNUSABLE 2 month old pot plant I had forgotten in my closet. It was not setup to grow, no light or watering system I just forgot to throw it away. Did the officers have a right to search my room when I was not named on the warrant and also can a dead marijuana plant be charged against me as ''Cultivation'' The arresting officer even laughed at the plant and knew it was dead. Any help or info you could provide me would be greatly appreciated. Thank you.

-Casey


Asked on 10/27/04, 9:36 pm

3 Answers from Attorneys

Edward Hoffman Law Offices of Edward A. Hoffman

Re: Search Warrant, Who and Where can they search?

The warrant entitled the police to search any part of the house they could reasonably believe were accessible to your tenant. Normally, I would think your room would not qualify, but the fact that the police found some of the items in the room and that you say they were there "because we live in the same house and it was just left there by my tenant" suggests they were on the money.

Did you tell the police your tenant had access to your room? If so, that was all the reason they needed. If not - and if they had no other reason to believe he had such access - then the search strikes me as improper. You may very well be able to have the evidence obtained from your room excluded, along with any other evidence the police found later as a result of going into your room.

Assuming the evidence can be used against you, the fact that your marijuana plant was dead is of no help to you. A conviction requires only proof that you had cultivated the plant, even if it happened to be dead when it was discovered. And if the jury isn't convinced beyond a reasonable doubt that you were cultivating, it can still get you for possession.

And for the record, tenants who supposedly rent only one room do not routinely leave items in other bedrooms in the home. You might want to reconsider your story. And you definitely want to hire an attorney.

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Answered on 10/27/04, 9:50 pm
Robert Miller Robert L. Miller & Associates, A Law Corporation

Re: Search Warrant, Who and Where can they search?

Thank you for your question.

I also agree with Mr. Hoffman that you may benefit greatly from the services of an attorney, but part of the defense is going to be analyzing and presenting the issue of whether or not the warrant "described with particularity" the scope of the search, and the items to be found.

It may be, if the warrant described the particular areas where the items were found, that the search will be upheld, even if your name wasn't on the warrant. But another possibility is that the police exceeded your search, by going "beyond the warrant" in searching your room without your consent or the authority in the warrant.

As you can probably tell from the way you've asked it in your question, the fact that the plant was dead doesn't matter - marijuana cigarettes are filled with dead plant matter, but they're still, in normal circumstances, illegal.

If you have any further questions, or feel that you need legal representation, please feel free to email me directly at [email protected]. It's my pleasure to help if I can.

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Answered on 10/28/04, 1:56 am
OCEAN BEACH ASSOCIATES OCEAN BEACH ASSOCIATES

Re: Search Warrant, Who and Where can they search?

It sounds to me to be exceeding the limits of the warrant. If you are charged with any crime, call me directly at (619) 222-3504.

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Answered on 10/28/04, 2:22 pm


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