Las Cruces, NM asked in Civil Rights, Constitutional Law, Criminal Law and Federal Crimes for New Mexico

Q: can a charge hold up in court if the findings were obtained thru a search of house while only minor son present no war

cops came to my house (initialy to talk about daughter being pulled over at 4 am with adult male) knocked on door didnt announce they were police, after ? me and my bf about said incident they were going to leave but they said they smelled a foul oder which they believed to be weed. i called my minor son to living room he told cops he was smoking earlier that morning they asked with what he said pipe they said where is it he said my room they said everyone outside we are getting a warrant to search house. while they waited for warnt they allowed me and bf to leave. only minor son was present when they searched the house. they found 2 guns drug paraphanila large amount of heroin. the paperwork they left at house isnt a search warrent. they never supplied one. they left alot of paraphanila behind. they eventualy arested my bf and are charging him with the findings in house. can they do that? can he be charged

1 Lawyer Answer
William Jaksa
William Jaksa
  • Criminal Law Lawyer
  • Toronto

A: The very short answer is yes.

There are certainly triable issues and grounds to argue that the search warrant should never have been issued. Were the police acting within their duties when they originally attended? Where they lawfully within the dwelling when they observations (smelled the weed)? Should they have cautioned everyone before asking questions about the foul smell? Where they truthful to the Judge when asking for the search warrant authorization? What statements/admissions did they obtain from people in the house?

Basic principles of the plain view doctrine are that as long as police are lawfully in a place any observations they make can be used to form the grounds from for further investigations.

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.