My question involves criminal law for the state of: California
So I was arrested for suspicion of being under the influence, penal code 11550, at my own house. I had just woken up no more then 45 minutes prior to being arrested. Briefly, was in a extremely high stress situation, which was overwhelming to me. I called the cops to my house to have a man and his buddy. Who were both off duty police officers from out of town, removed from my house. They let themselves in uninvited. Yelling at me and people I was living with telling us to "get the **** out of their our own home" The police show up at my home to remove the two men. One accuses me if being on drugs. I end up arrested. While him and his buddy get let go with nothing said!?!!
Here is the detailed story. Sorry if its a bit long. I'm try to make it brief as I can but also feel the background of the situation has a huge impact to the situation. And how I feel I was arrested unlawfully. Which would also make the further more evidence and charges irrelevant as for I should have never been arrested to begin with.
An off duty police officer (Brother of my mothers ex husband, in which she has a restraining order against her ex husband. And her ex husband at the time is in custody.) had arrived at my house one morning, knowing he was not welcomed there, due to the fact he is a family member of my mothers ex husband. *Note: the house belonged to both my mother and her ex.* Well when the off duty officer arrived to my house that morning my brothers gf answered the door, stepping outside closing the door behind her to speak with him. He then steps to the side of her and let's himself into our home. Upon coming inside he begins to take pictures, go throug drawers, making threats telling us we did not belong there and that we had to leave. Telling is to "get the fu** out the house or he was going to call the police." *note I have been living there for the past 3 years, also accompanied with him was another off duty police co-worker of his.* I had then gotten on the phone with my mother, who then informed me to call the cops and have him removed from our home. Because he was not suppose to be there.
I proceed with calling the police briefly explaining my situation. Shortly after the police arrive and I greet them out front, again briefly explaining everything to the officer who after proceeds into home and removes him and his buddy from the home. *Note- I am extremely nervous at the time and overwhelmed with the situation. I don't do well in high stress environments or around police officers. They pull him aside to sidewalk and talk to him for a shirt period and he then makes an accusation pointing at me saying " I THINK he's on drugs. He only met me once in his life prior to that day, and being an officer and illegally letting himself into my home making threats saying to get the fu** out of my home. I feel was way out of place for that accusation.
Well the police then ask me to step outside my own home and ask " So why do you have a problem with him being in your home?" I stated "hum because he is not welcome here and he knows he's not welcome here and aside from that he let himself into our house without permission." They the. Begin asking me about drugs and I admitted to using two days prior. They then arrest me for under the influence of a controlled substance. And later find a .1 of dope (meth) on me in my sock once being in jail. I feel there's something not right about how this all came about. I called the cops to my house because another cop off duty knowing he was not suppose to be there comes into my home, but the. I get arrested and thrown in jail.???!? And nothing happens to him ?
Arrested for Being Under the Influence in My Own House
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02-28-2013, 03:22 PMShane.gibsonArrested for Being Under the Influence in My Own House
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02-28-2013, 06:19 PMcdwjavaRe: Did the Cops Have Proper Grounds to Arrest MeActually, it is Health and Safety Code section 11550.Quote:
Quoting Shane.gibson
Apparently the police thought you were under the influence and felt there was insufficient grounds to hold the other men for anything.Quote:
The police show up at my home to remove the two men. One accuses me if being on drugs. I end up arrested. While him and his buddy get let go with nothing said!?!!
Here is the detailed story. Sorry if its a bit long. I'm try to make it brief as I can but also feel the background of the situation has a huge impact to the situation. And how I feel I was arrested unlawfully. Which would also make the further more evidence and charges irrelevant as for I should have never been arrested to begin with.
You were asleep. You don't know what happened.Quote:
Well when the off duty officer arrived to my house that morning my brothers gf answered the door, stepping outside closing the door behind her to speak with him. He then steps to the side of her and let's himself into our home.
Unless she told him he could not come in and told him to leave, he was not necessarily trespassing.
You're paying rent? You current on the payments?Quote:
Upon coming inside he begins to take pictures, go throug drawers, making threats telling us we did not belong there and that we had to leave.
So far, this sounds like a bad landlord-tenant issue with the landlord (or mom's ex-husband) potentially engaging in improper and unlawful actions and potentially a civil matter. Dumb move for anyone, especially an ex-cop, but it's separate from your criminal charges.
Why might he think that you have no legal right to be there if you have lived there for the past three years? Is there some part of the tale you have not told us?Quote:
Telling is to "get the fu** out the house or he was going to call the police."
I take it you have a history with the police?Quote:
I don't do well in high stress environments or around police officers.
He could have accused you of being overly friendly with goats, but that wouldn't make it unlawful.Quote:
They pull him aside to sidewalk and talk to him for a shirt period and he then makes an accusation pointing at me saying " I THINK he's on drugs. He only met me once in his life prior to that day, and being an officer and illegally letting himself into my home making threats saying to get the fu** out of my home. I feel was way out of place for that accusation.
And, in their experience (as with mine), this claim was likely a lie.Quote:
Begin asking me about drugs and I admitted to using two days prior.
Also, important question: What time of day was this? There is a reason I am asking this, and since it seems the rest of the world was up and around, the time of day you suddenly awoke can play a part in the drug influence evaluation.
Oops! You pretty much made their case for them!Quote:
They then arrest me for under the influence of a controlled substance. And later find a .1 of dope (meth) on me in my sock once being in jail.
You can always go to the police department and demand to make a report against the other guy for trespassing. The police can send it to the DA and the DA can decide to file or not to file. Unfortunately for you, you apparently did not make a demand to place the other parties under private person's arrest for trespassing at the time of the incident (if that was possible under the circumstances ... and it might have been ... maybe).Quote:
I feel there's something not right about how this all came about. I called the cops to my house because another cop off duty knowing he was not suppose to be there comes into my home, but the. I get arrested and thrown in jail.???!? And nothing happens to him ?
At this point, you will likely be facing drug diversion provided you are still eligible. Consider this a wake up call and an opportunity to get clean. -
03-04-2013, 06:36 PMShane.gibsonRe: Did the Cops Have Proper Grounds to Arrest MeHe had been informed prior by my mom (she was not at the house at time all this happened she was out of town on a business leave) that he was not allowed anywhere near our house. Also he had called my neighbor two days prior, stating "he was going to come down and kick us out of our house and that he hopes he finds drugs there." My neighbor came to my house that day (2 days prior) telling me what he had said to him over the phone. Also I had just woken up when he was banging on our door. That's what initially woke me up. My brothers girlfriend answered the door, stepped outside closing the door behind her to speak to him. She informed/reminded him that my mom said she did not want him there at our house and that he was not allowed to be there or anywhere near. (This guy lives out of town about 4 hours) After my brothers girlfriend tried explaining that he was not allowed there, he disregarded her words and stepped aside her opening our front door himself and letting himself and his buddy into our home.Quote:
You were asleep. You don't know what happened.
Unless she told him he could not come in and told him to leave, he was not necessarily trespassing.
The house is in my moms soon to be ex-husbands name. He is incarcerated for domestic violence. He beat my mom, knocked her tooth out, left massive bruises and ect. My mom and him got together 5-6 years ago, they been married for i believe 4. And throughout their whole relationship she has lived there with him. I have also lived there for about 3 1/2 years i did not pay rent, as for they did not ask me to pay rent. as long as i were to help them with anything when they needed it.Quote:
You're paying rent? You current on the payments?
So far, this sounds like a bad landlord-tenant issue with the landlord (or mom's ex-husband) potentially engaging in improper and unlawful actions and potentially a civil matter. Dumb move for anyone, especially an ex-cop, but it's separate from your criminal charges.
My mothers husband is in jail, the guy who arrived at our house that I'm implying trespassed, is my moms husbands brother who is a police officer in another county. his buddy he brought with him was a co-worker. (so they are two off-duty police officers)
He knew I had legal right to be there. I only met him once in my life when we took a trip down to see him. And even then didnt talk to him much so we hardly know each other. But he knows from his brother(my moms husband) that i lived there with them for the past few years. He i believe was upset with his brother being in jail, even though what his brother (my moms husband) had done was wrong and he knows it was wrong. But I think because of his brother being in jail and his own personal issues with my mom he did not want us staying in his brothers house. But thats out of his jurisdiction. I had been there for 3+ years and its not my fault his brother beat my mom and got himself in jail. He's more lucky I wasn't there to see it at time of incident.Quote:
Why might he think that you have no legal right to be there if you have lived there for the past three years? Is there some part of the tale you have not told us?
I take it you have a history with the police?
As a juvenile i had a couple marijuana possessions. I am 22, and got off juvenile probation at age 17. Havent been in trouble since. And i have a clean adult record. And the officers were newer to me. (ive never seen them in the field)
It was about 9a.m. i woke up around 8:30a.m when he arrived banging on our door.Quote:
He could have accused you of being overly friendly with goats, but that wouldn't make it unlawful.
And, in their experience (as with mine), this claim was likely a lie.
Also, important question: What time of day was this? There is a reason I am asking this, and since it seems the rest of the world was up and around, the time of day you suddenly awoke can play a part in the drug influence evaluation.
They have no recording of me admitting to anything, theres no audio or video recordings throughout the entire event and of my arrest. Its their word vs. mine and which the officer at prelim lied a few times, which really bothers me and worries me. Ive already set the case for trial but my public defender is extremely rude, unprepared. Prelim was a joke he made me look horrible, stuttering and shaking, forgetting a question he had just asked. I think im going to write the judge asking for a new Public defender or even go about finding a defense attorney. just limited on money so thats why im trying to conduct research and get as much info as i can to aid me in my defense.Quote:
Oops! You pretty much made their case for them!
I dont believe going and demanding a report on him will aid me in my defense. Or will it? either/or I will probably do so. Also my charges are 11550(a)HS, 11377(a)HS, and 4573PC. They DA offered me 90 days with 5 years felony probation I said no. They stated all offers are off the table, went to the next court date, then they offered me 90 days 3 years probation. I said no, they then come back offering Prop 36. I almost took the deal till after reading it all, I found out that even after completion of Prop 36, and the case is "dismissed from my record and they would drop the felony to a misdemeanor" Its still on my record (so I dont know how thats dismissed but thats another argument) and according to Federal Law still considered a Felony. Therefor California law states I don't have a felony and can still possess a firearm. But Federal Law its still a felony. That being said I basically lose my gun rights. I'll be able to "own" a gun in california but not able to purchase a gun, because in order to purchase a gun you have to be okay by both state and federal law. My whole issue is I dont want to lose my gun rights. I would have signed for prop 36 if the DA would of let me sign to a misdemeanor possession. Versus dropping the felony to a misdemeanor right before getting discharged from prop 36.Quote:
You can always go to the police department and demand to make a report against the other guy for trespassing. The police can send it to the DA and the DA can decide to file or not to file. Unfortunately for you, you apparently did not make a demand to place the other parties under private person's arrest for trespassing at the time of the incident (if that was possible under the circumstances ... and it might have been ... maybe).
At this point, you will likely be facing drug diversion provided you are still eligible. Consider this a wake up call and an opportunity to get clean.
Again thank you for your time, any information you can provide for me, any penal code sections to look at to help aid my defense, is greatly appreciated!!!
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Now that i read that over again. Yes, prior to this even back in 2006, my house was raided. It all ended up being dismissed from court because the raid had no warrant and they scared my parents into signing a consent form to search the house when they were already searching the house prior. But basically I was 16 woken up at gun point, not knowing what was going on so, since then I really do not like being around cops, and I get really nervous. Also i replied to your thread but couldnt figure out how to do the quotes so yeah. But thanks againQuote:
I take it you have a history with the police?
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Explanation or clarification of characters:
Me- I'm the one who was arrested for 11550(A) HS, 113377(A) HS, 4573 PC.
Mothers husband-is the owner of the house, is incarcerated for domestic violence, my mom is divorcing him and has a 25 mile restraining order.
My mother- was not there present at the house the day of my arrest and this whole event, communicated over the phone asking what to do.
Mothers Husband's Brother- off duty police officer from another county. the guy who let himself into our home, was taking pictures going through cabinets and drawers, yelling at us to get out.
Mothers Husbands Brother's Friend- accompanied him while coming into my home. also a co-worker of the Brother, so off-duty officer as well.
My Brothers GF- the girl who answered the door in the beginning, closing it behind her.
I know it can be a bit confusing to understand, hard to explain without names. But i'm trying my best to explain without giving any information out that could personally identify anyone in this situation. -
03-04-2013, 07:11 PMPandorasBoxRe: Did the Cops Have Proper Grounds to Arrest Me
Stuttering and shaking could be seen by the court as you are having drug withdrawal.
Best thing you can do is not asking for a new P.D. But getting yourself into a treatment program. -
03-05-2013, 10:34 PMShane.gibsonRe: Did the Cops Have Proper Grounds to Arrest MeStuttering and shaking, that was my public defender. Thats how he was during prelim. I was shocked with how unprepared he was! I wasn't stuttering and shaking.Quote:
Quoting PandorasBox
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03-05-2013, 10:42 PMMr. KnowitallRe: Did the Cops Have Proper Grounds to Arrest Me
Was he the guy from My Cousin Vinnie?
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03-05-2013, 11:16 PMcdwjavaRe: Did the Cops Have Proper Grounds to Arrest Me
You might also consider the ramifications of being found guilty for possession, being under the influence, and for transporting a controlled substance into a correctional facility (an offense NOT eligible for prop 36). Yeah, you may have turned down their offer, but the police need only have probable cause to believe you were under the influence to make the arrest. And your admission - recorded or not - IS admissible. Your defense attorney can try to claim the officers are lying when they say you admitted to using, but the fact that you were found to be in possession of meth. will sort of throw that claim out the window.
Was a chemical test done? Did you have to take any urine or blood test? or, are they making the case solely on the testimony of the officers? The testimony of the officer can be sufficient for a conviction provided the officer has adequate training and experience to make the case in court. When I was in San Diego County we commonly made these cases with only the testimony of a DRE or DAR trained officer.
Your roll of the dice may stand little chance of winning and you may buy yourself jail time and a felony conviction.
Oh, and as for the Prop 36 dismissal, the court can specifically restore your firearm rights with the dismissal if you ask and they agree. I know plenty of recovered addicts that have done this. Could it be that you would rather risk a lengthy jail term than be forced to give up your drug addiction? -
03-05-2013, 11:35 PMddeckysRe: Arrested for Being Under the Influence in My Own HouseA bit of advice:Quote:
Quoting Shane.gibson
Never "admit" doing anything to the police, it will never end well and will probably get you in trouble. -
03-05-2013, 11:50 PMcdwjavaRe: Arrested for Being Under the Influence in My Own HouseNot that they likely needed the admission, but it certainly helped.Quote:
Quoting ddeckys
Most of the time, when we ask a question like, "When did you last use?" we KNOW the real answer is akin to "recently." -
03-07-2013, 09:50 PMShane.gibsonRe: Did the Cops Have Proper Grounds to Arrest MeI asked to have the sample retested, it was a .11 they say. What are the chances they still possess the sample? And if they do, what are the chances they actually stored it correctly so it could be split and retested? Cause if they didn't properly store it, or if they can no longer provide the sample so I can have it retested. Then they case has to be dismissed. Correct?Quote:
You might also consider the ramifications of being found guilty for possession, being under the influence, and for transporting a controlled substance into a correctional facility (an offense NOT eligible for prop 36). Yeah, you may have turned down their offer, but the police need only have probable cause to believe you were under the influence to make the arrest. And your admission - recorded or not - IS admissible. Your defense attorney can try to claim the officers are lying when they say you admitted to using, but the fact that you were found to be in possession of meth. will sort of throw that claim out the window.
I provided no urine or blood sample. The only test they have is they tested the .11 gram substance at a lab that confirmed it to be methamphetamines. I asked the court I wanted to have the sample split and retested at a seperate lab of my choice. One that was accountable by the courts. Because I simply have had bad experiences with dirty cops and crooked judicial system, and I do not trust there results. So I want it retested because I have that right, and that I would pay for it myself. But if they can't do so, then the case has to be dismissed cause there is no evidence then. And the cop has 4 years of being a police officer. And has no ceritified drug training. He spoke with me 5 minutes prior to pulling the guy and his friend out of my house. Never said a thing. Removes the guy from the house who then accuses me of using drugs, when he doesn't know me and has no evidence of it. Then all the sudden the cop questions me of drugs. And then in his testimony says he thought from the get go I was on drugs. If he thought so in the beginning, then why didn't he ask me then? He also claims he removed me from the situation and I was still really nervous and blah blah. Uhm he questioned me right in front of the guy who was 10 feet away pointing and laughing at me behind the officers back. Then im put in handcuffs and thrown in the cop car. How is that removing me from the situation?Quote:
Was a chemical test done? Did you have to take any urine or blood test? or, are they making the case solely on the testimony of the officers? The testimony of the officer can be sufficient for a conviction provided the officer has adequate training and experience to make the case in court. When I was in San Diego County we commonly made these cases with only the testimony of a DRE or DAR trained officer.
Yes I know this is a roll of the dice, and despite of what I do on my own personal time in my home, is none of the laws business. I was not disrupting anyone, or doing anything wrong. I wasn't even high at the time of arrest. That is why I want to fight this case and get as much info as I possibly can, because I feel it was not right. Matter of fact I know it wasn't right. There is no way that the whole way it went down, that it was completely lawful. I asked for an attorney even after being read my rights and the police officer kept interrogating me asking me things over and over. And got me to eventually talk to him. I don't even know how, he played a word game and basically made me talk to him. How is that okay? It's wrong, I know in my heart my rights were violated. I wake up one morning to some basically stranger in my house going through my kitchen drawers and cabinets. Taking pictures of my house, and yelling at me and my younger brother telling us to "Get the **** out of this house! You don't belong here your squaters, you and your piece of shit mom." But yet I end up in jail at the end of this because I was stuttering a bit and showing signs of "nervousness". Wouldn't anyone have been a little nervous and overwhelmed having woke up to a situation like that? The cop at prelim in his "sworn testimony" lies says I never once said I wanted a attorney present. He lies and says he asked me if I had anything before going into jail and said he told me that it was my last chance to give anything up or else its another charge. He never said anything, and he searched me 3 times beforehand. I was unaware it was even there. Something is not right about this situation. And I need help. Because my public defender won't listen to me. Anytime I try to speak and say something to him when we are meeting he interrupts me and starts yelling at me. Then if I speak up anymore he gets up and storms out of the room? What do I do!?!? This isn't right at all!Quote:
Your roll of the dice may stand little chance of winning and you may buy yourself jail time and a felony conviction.
Oh, and as for the Prop 36 dismissal, the court can specifically restore your firearm rights with the dismissal if you ask and they agree. I know plenty of recovered addicts that have done this. Could it be that you would rather risk a lengthy jail term than be forced to give up your drug addiction?
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03-07-2013, 10:32 PMcdwjavaRe: Did the Cops Have Proper Grounds to Arrest MeChances are they still have it unless they had to consume the entire amount in the initial test. And if they had to consume the remainder - or even if they lost it - this does not mean an automatic dismissal.Quote:
Quoting Shane.gibson
What are you arguing the substance really is? Is your attorney REALLY going to put you on the stand to say you had a bindle or baggy of salt or sugar?
The argument in these instances most often comes down to whether or not it was a usable amount, but if it can be tested, it can be used. I have seen the remnants from a scraper bag considered usable, so this is also a long shot.
Again, do you want to risk jail to avoid rehab?
If it was tested at a lab, then you're pretty much done. But, if there is something left, you are free to pay to have it tested at your own expense wherever you choose ... but ... why?Quote:
I provided no urine or blood sample. The only test they have is they tested the .11 gram substance at a lab that confirmed it to be methamphetamines.
The crime lab IS accountable to the courts!Quote:
I asked the court I wanted to have the sample split and retested at a seperate lab of my choice. One that was accountable by the courts.
Who told you that whopper??Quote:
But if they can't do so, then the case has to be dismissed cause there is no evidence then.
And you know this, how?Quote:
And the cop has 4 years of being a police officer. And has no ceritified drug training.
The officer's training and experience would certainly be a legitimate line of cross examination to attempt to cast doubt on his observations and interpretations of those observations. But, again, when you were found with the dope on your person, you aided the state's case that you were high. Now, it is possible they will offer to drop either the possession or the influence charge in order to get you to plea to Prop 36. They appear to have you cold on the possession charge, and your only hope to avoid jail time might be to seek a plea that results in the charge for bringing dope into a correctional facility is dropped (likely in exchange for a guilty plea to possession and/or being under the influence ... and Prop 36).
Actually, unless the laws change, it IS the law's business.Quote:
Yes I know this is a roll of the dice, and despite of what I do on my own personal time in my home, is none of the laws business.
You were simply in possession ... and claim to have used a couple days earlier (which is typically a lie). When I hear that line, I usually find that the truth is that the use was within the last day ... or less.Quote:
I was not disrupting anyone, or doing anything wrong. I wasn't even high at the time of arrest.
An arrest requires only probable cause - a low burden of proof. Unless you can show that the arrest for being under the influence was objectively unreasonable and lacked probable cause, the discovery of the dope will be in and those charges will be sustained. And, one of those charges is not Prop 36 eligible!Quote:
That is why I want to fight this case and get as much info as I possibly can, because I feel it was not right. Matter of fact I know it wasn't right.
Then, any statements made after you invoked your right to speak to an attorney can be excluded if your attorney makes the proper motion and prevails. But, aside from your statement that you used a couple of days earlier (which may have been made before Miranda was read), there was likely no need to interrogate you. Unless the officer based his 11550 arrest almost solely on your admission of use two days earlier, the statement is not likely to be a key to the probable cause to support the arrest. It might be one piece, but it may not be a large one.Quote:
There is no way that the whole way it went down, that it was completely lawful. I asked for an attorney even after being read my rights and the police officer kept interrogating me asking me things over and over. And got me to eventually talk to him.
The issue of the other guy in your house really will not play any role in the objective evaluation o fthe probable cause for your arrest. Whether the officer failed to take action on another misdemeanor is a separate issue and not directly relevant to the probable cause for your arrest.
If you refuse to accept a plea, your attorney will have no choice but to go to trial. But, he apparently realizes that you are dead to rights on at least the possession charge, even if the influence charge is weak. You would have to prove that there was no probable cause for the arrest in order to get the dope found in your possession tossed, and that will be a difficult case to make. But, if that's the road you want to try and you really would rather risk doing jail time rather than rehab, that is certainly your call. But, all that tells me is that your addiction has taken such a huge hold over you that it has skewed your reasoning.Quote:
Because my public defender won't listen to me. Anytime I try to speak and say something to him when we are meeting he interrupts me and starts yelling at me. Then if I speak up anymore he gets up and storms out of the room? What do I do!?!? This isn't right at all!
As a note, I am not simply an officer, I am also trained as a Drug Recognition Expert, am an instructor in he field sobriety tests, conduct twice-monthly training at our social services office on the effects of drugs and alcohol and on effective intervention, and am quite active in the local drug recovery community. So, I have some level of training, education, and experience in this area of the law and addiction.