Legal Question in Criminal Law in California

No Warrant/DA Reject; Probation Violation Pending; Seized Property :

My husband and I are temporarily staying in an RV in my dad's gated driveway. On 10/4 at 10pm, I was in the house for 15 min when 2 deputies came due to a complaint of ppl living in the RV. They had my husband & our friend come out of the RV and asked for ID, which was inside. The dpty told them to stay put & she went in to get it. She found a bag of drugs that my husband saw our friend take out of her pocket & toss on the counter before going out. No one copped to it. My husband asked them who gave them permission to be in there & she said she gave herself permission. The other dpty told my dad they had a search warrant. All 3 of us went to jail for it. They said they took me ''because of my history'': I'm on misd. probation (no search clause). They took a cell phone and paraphenalia, I think. At the station, I refused to sign permission for the RV search so they made a new booking slip with extra charges ''because I didn't cooperate''. The DA rejected the case after I was bailed out (my husband was ''detained'' over 84 hours) but on 10/25, they're gonna try to give me a 2nd violation. Q.1) If max sent was 1yr and I did a 1yr violation can they violate me again? Q.2) Why me? I wasn't in the RV! Q.3) How do we get the phone back?


Asked on 10/24/04, 8:39 am

2 Answers from Attorneys
Edward Hoffman Law Offices of Edward A. Hoffman

Re: No Warrant/DA Reject; Probation Violation Pending; Seized Property :

You need a lawyer. If you can't afford one, get a public defender.

Assuming you have provided all the pertinent facts, the officer had no right to enter the RV, and any evidence she found while inside should be excluded as the product of an illegal search.

An attorney can bring a motion to exclude the evidence; if the motion succeeds then the probation violation and any other charges will likely be dismissed for lack of evidence. You can try to prepare such a motion yourself, but there are many ways for a layperson to botch such a task. With so much at stake, you need a professional in your corner.

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Answered on 10/24/04, 5:23 pm
Robert Miller Robert L. Miller & Associates, A Law Corporation

Re: No Warrant/DA Reject; Probation Violation Pending; Seized Property :

Thank you for your inquiry, and the opportunity to serve you further. I believe that I can answer your questions as follows:

1. Yes, you can be violated for any proven violation of the terms of your probation. As far as an actual sentence, however, your sentence cannot exceed, in total custody time, the maximum sentence for your original violation.

2. It would be difficult to answer why you are being prosecuted without a more detailed discussion of the facts, but it may be that the contact with law enforcement is enough to violate your probation. Depending on whether or not you had "custody, dominion, or control" over the contents of the R.V., the court may try to make a case for constructive possession also.

3. Your phone can be returned through a stipulation for return of property, or if that fails, a motion to return property. Typically, an attorney will do this for you, although you may be able to do it yourself if you are comfortable with higher level motion writing.

Thanks, and if you'd like legal representation, or have any further questions, feel free to email me directly at [email protected]. It's my pleasure to assist if I can.

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Answered on 10/24/04, 10:10 pm


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