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  1. #1
    Join Date
    Mar 2012
    Posts
    4

    Default 4th Amendment Waiver Search if Probationer Isn't Home

    My question involves criminal law for the state of: Georgia.
    Significant other on probation with 4th amendment waiver. Heard a sound in the living room as I was sitting on my bed. Went into living room found five officers there. I said what do you want? one replied we are here to search you and the house on your 4th amendment waiver. I replied "I am not on a waiver, I have never been in trouble, get out of my house". An officer said we are going to search anyway, and another said "Doesn't (#$#$#$) live here? He is on a 4th amendment waiver.
    I responded yes but he isn't here and I refuse to let you search. I was told to set down at the table in the kitchen or I would be handcuffed. They searched my bed room for over and hour, came out and said "handcuff her, we found meth". I asked to see it and they would not do so. They took My 48 inch plasma TV,wall mounts, controls, 4 computers, cash, coins, adult CD's and other items. I asked why they were taking the adult CD's the officer replied" we have to review them, we suspect you of child porn. Asst DA on property return request said that I could have two computers, they were keeping the TV and other 2 computers. Isn't this outside the scope of a search and seizure? The monies and other items were not on the property list and the Officer in charge said that the house must have been burglarized while I was in Jail, that it wasn't their problem. Do I have any recourse, under the law?

  2. #2
    Join Date
    Sep 2011
    Location
    OH10
    Posts
    12,432

    Default Re: Old Problem 4th Amendment Waiver

    You can attempt to sue them for what you claim to be missing. You can file a complaint with the police department. If you do not like being treated like a criminal, you can find someone else to be in a relationship with.
    With enough thrust, pigs fly just fine.
    You may believe that you understood what you think I said. I'm not sure you realize that what you heard is not what I meant.

  3. #3
    Join Date
    Sep 2010
    Posts
    8,674

    Default Re: Old Problem 4th Amendment Waiver

    You need a lawyer.
    If your SO resided there and was on a parole/probation waiver, whether he was present or NOT makes no difference.
    There's no "scope" to a waiver based search. It's considered permissive. They had the right to look at any or all things that may indicate criminal or activity in violation of the parole/probation conditions.

  4. #4
    Join Date
    Mar 2012
    Posts
    4

    Default Re: Old Problem 4th Amendment Waiver

    What about US vs and Ga vs Randolph where both ruled that if the waived person was not present and the non waived person refused entry that evidence was poisoned fruit. Also can they arbitrarily take any property that they want too? and sell it?The question here is whether such an evidentiary seizure is likewise lawful with the permission of one occupant when the other, who later seeks to suppress the evidence, is present at the scene and expressly refuses to consent. We hold that, in the circumstances here at issue, a physically present co-occupant's stated refusal to permit entry prevails, rendering the warrantless search unreasonable and invalid as to him. The search at issue was a search solely for evidence. The objecting party was present and made his objection known clearly and directly to the officers seeking to enter the house. The officers did not justify their search on grounds of possible evidence destruction. Cf. Thornton v. United States, 541 U. S. 615, 620–622 (2004); Skinner v. Railway Labor Executives' Assn., 489 U. S. 602, 623 (1989); Schmerber v. California, 384 U. S. 757, 770–771 (1966) . And, as far as the record reveals, the officers might easily have secured the premises and sought a warrant permitting them to enter. See Illinois v. McArthur, 531 U. S. 326 (2001) . Thus, the "totality of the circumstances" present here do not suffice to justify abandoning the Fourth Amendment's traditional hostility to police entry into a home without a warrant. I stress the totality of the circumstances, however, because, were the circumstances to change significantly, so should the result.
    [edit]Roberts's dissent

  5. #5
    Join Date
    Sep 2010
    Posts
    8,674

    Default Re: Old Problem 4th Amendment Waiver

    You're going to have to read that decision. The decision invokes the case where one says yes and the other says no and they are presumed to be equal coresidents. In the case of parole residence, you may indeed have one of the cases where the prior consent has priority over a later refusal.

    Your lawyer will have to investigate whether he can use Randolph to your advantage.

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