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tvc184

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Police are running an undercover (UC) drug operation sometimes called a buy/bust. A UC officer or informant buys drugs and the person who sold the drugs is arrested almost immediately.

So the police are running such an operation. A UC buys cocaine from the drug dealer and gives the signal that a successful deal was made. The UC purchased the drug with identified money.

 The police attempt to arrest the dealer but he runs on foot. After a short chase the dealer runs into a dead end apartment entry area with an apartment door on either side. The officer only a few steps away hears a door slam and as he turns the corner, the dealer is gone. One apartment is completely silent. The one across the hallway has some bumping sounds and the officer claims to be able to smell marijuana. Without seeing the suspect and without obtaining a warrant, the officer kicks in the door of the wrong apartment and finds several people with multiple drugs. Several arrests are made. 

People were convicted but the state supreme court threw out the conviction as an unlawful entry.

It was appealed to the federal system under the Fourth Amendment of unlawful searches and seizures. 

Lawful or unlawful entry? 

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12 hours ago, tvc184 said:

Lawful or unlawful entry? 

Well, this could be educational and entertaining. I watched a couple Law & Order episodes. New York laws aren't the same as the Lone Star State. I'll side with the state on this one... unlawful entry. LE was looking for someone else and had no search warrant???

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I probably need to add this. 

Hopefully this can clear up situations….. hopefully.

 There are federal laws and state laws. They may be similar but one doesn’t depend on the other. The US Constitution is laid out that the states are basically a country within a country. Like the country/state of Texas has the right to make its own laws. They can make virtually any law that they wish as long as it doesn’t violate the US Constitution or Texas Constitution. 

 So there are state courts and federal court systems. If the DEA files a drug case with the US Attorney (USA or the district attorney for federal cases), the USA can’t file the case in state court. Likewise for a violation of state law cannot be filed in federal court. The systems do not cross over. 

As an example a guy in Beaumont is convicted of a crime under Texas state law like theft. He disagrees with the trial judge’s ruling on a piece of evidence and wants to appeal. 

Beaumont is in the 9th Appeals District which is Montgomery, San Jacinto, Polk, Tyler, Jasper, Newton, Orange, Jefferson, Liberty and Hardin counties.  So any appeals from those districts are appealed to the 9th District Court of Appeals in Beaumont. A loss by either party (state or person) can appeal to the supreme courts in Texas (Texas has two supreme courts).

So in the Texas system you have:  

1. Trial Court

2. District Appeals Court

3. Supreme Court (Texas has two as mentioned. The Texas Supreme Court is for civil cases like lawsuits and the Court of Criminal Appeals for crimes)

So the guy convicted of theft in Beaumont has appealed his case all the way to the Texas Court of Criminal Appeals and he loses. The conviction is final!!!

Well…. Maybe not. 

If the appeal is due to a US Constitution violation or law, the appeal can then be filed in the federal system which ultimately ends with the US Supreme Court.

The federal system is almost identical to the 3 tier state system so you have:

1. Trial Court (federal District Court)

2. Circuit Courts (equivalent of Texas Appeals Court)(Texas is in the Fifth Circuit in New Orleans who has federal appeals jurisdiction in Texas, Louisiana and Mississippi only).

3. US Supreme Court

So…..

A guy in Lumberton is convicted of a crime from a traffic stop. He appeals to the Court of Appeals in Beaumont and then all the way to the top in Texas and still loses. Since a traffic stop involves the Fourth Amendment to the US Constitution however, he has a valid reason (nexus) to appeal to the federal system.

 The guy can appeal to the federal system by claiming his constitutional right was violated such as the Fourth Amendment and claiming an unlawful seizure on the traffic stop.

 The guy then starts over in the federal system by saying that the Texas courts made a mistake.

All appeals are not accepted so it isn’t like the Texas or US Supreme Court hears each of the millions of cases a year. The judges in the appeals courts can simply refuse to even hearing a case. I am guessing that probably 99+% of cases are rejected. They can read the trial judge’s opinion and agree. Case closed.

Clear as mud?

 An overwhelming majority of cases never get anywhere near a supreme court. 

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3 hours ago, WOSdrummer99 said:

Well, this could be educational and entertaining. I watched a couple Law & Order episodes. New York laws aren't the same as the Lone Star State. I'll side with the state on this one... unlawful entry. LE was looking for someone else and had no search warrant???

It appeared that you gave two different answers. I think I figured it out though. 

Officers are the state (prosecution) as police are government officials. So if you agree with the state you are saying that it is a lawful entry by the police and the conviction stands.

But….

After reading it literally about five times I think I understand. Our terminology is different.

 The “state” is the prosecution. The “state” used the officer’s actions to convict a man of a felony.

 The “state supreme court” is not the state in this discussion. They sit in neutral judgment of the state’s actions. I have to remember that most people don’t use legal terminology. It is not uncommon for a “state supreme court” to overrule the “state”.

So…..

I am assuming that you are saying that the state supreme court in this case was correct and that the officer’s actions were unlawful. Case dismissed.
 

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Entry without consent must be bases on probable cause/PC (not reasonable suspicion).

To enter (or search) based on PC but without a warrant there must be exigent circumstances.

PC has several but virtually identical definitions/interpretations. It is articulable facts and circumstances known to the officer at the time of a search (or arrest), to which the officer has reasonably trustworthy information, that would make a reasonable person believe that a crime is about to be or has been committed.

Basically it could be said, what would a reasonable or a cautious man believe if he had the same facts as the officer and with the same knowledge as the officer? Would this reasonable person believe that it is “probably” true?

In this particular case, officers in Kentucky had probable cause to believe that a man just sold cocaine to an undercover. A foot chase ensued and the officer turned the corner and found two doors. On one side there was no sound and no odor but on the other there was the odor of marijuana and upon knocking on the door (which is obviously legal), there was bumping and noises as if somebody might have been getting ready to escape or get rid of drugs, etc.

 The officer only being a few seconds behind the suspect knew that he had to be in one of two apartments. One was silent with no odor and in the other he heard noises and could smell marijuana.

The question becomes, would a reasonable person believe that a suspect who they just sold drugs and fled on foot was in the apartment with all kinds of noises and the smell of marijuana?

The US Supreme Court overruled the Kentucky SC in an 8-1 decision and said the officer had probable cause to enter without a warrant. Remember that “probable” is a likelihood and  not a guarantee. 

 

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An officer sees a guy standing on a corner.  He is met by another man. Alternately they casually walk down the block and look around near a store front. One would walk down the block and return, they would talk and then the other would walk down the block. After a few minutes a third guy came up and did the same. He then walked away from the first two and didn’t return.

 The officer said that it looked like they might be casing a store to be robbed. So when the first two guys walked to meet with the third guy, the officer had seen enough and approached and then grabbed onto one of the men. He physically spun the guy around and checked him for weapons. Finding a revolver the officer ordered the other two up against the wall and found another gun.

 The officer did not have probable cause to believe the men might be armed or about to commit a crime but he was suspicious of their behavior by his “experience”.

 The armed men were convicted of the weapons violation. There was no evidence to prove if the men were about to commit a crime. 

Lawful?

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4 hours ago, tvc184 said:

I am assuming that you are saying that the state supreme court in this case was correct and that the officer’s actions were unlawful. Case dismissed.

Yes I agree with the state supreme court. They should be right to throw out the evidence. 

But it does seem like a trick question. Kinda like @Hagar's riddle. 

Now after reading the your answer, I think even more so. I'd argue that LE definitely had the right to kick in the door. But what they find needs to be what they're looking for. The "suspected" dealer. Are we not innocent until proven guilty?

All evidence in the case against the occupants of the apartment should be thrown out. Makes sense to me

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41 minutes ago, WOSdrummer99 said:

Yes I agree with the state supreme court. They should be right to throw out the evidence. 

But it does seem like a trick question. Kinda like @Hagar's riddle. 

Now after reading the your answer, I think even more so. I'd argue that LE definitely had the right to kick in the door. But what they find needs to be what they're looking for. The "suspected" dealer. Are we not innocent until proven guilty?

All evidence in the case against the occupants of the apartment should be thrown out. Makes sense to me

Are you saying that if the police find something other than the intent of the search, it should be thrown out?

 For example if I smell marijuana in a vehicle and search it but inadvertently find an obviously illegal sawed-off shotgun, the gun cannot be used as evidence since I wasn’t looking for it?

 This is covered under the plain view doctrine, I think first established by SCOTUS in Harris v. CA. The plain view doctrine is that if an officer is lawfully present at a location and if he sees something that is “immediately apparent” that it is evidence in a crime, it can lawfully be seized as evidence.

In this case from KY v. King, if you agree that the officer lawfully entered with PC, then any drugs in “plain view” can be seized as evidence.

BUT… (and I don’t remember the case name)

 The officer cannot manipulate the item. The case I am thinking of is when officers were lawfully in a home of a criminal suspect. An officer saw a stereo or computer or some other electrical item and believed it might be stolen. It was. The officer however had to move the item a little to see the serial number. That case was thrown out by SCOTUS and the search was found to be unlawful. Under the plain view doctrine, the officer could not immediately tell that the item was stolen. His moving of it would require PC which the officer didn’t have. In fact if an officer has PC to search, the plain view doctrine is not needed.

In King, let’s say that the officer lawfully entered to find the guy who ran but there was no apparent evidence of any other crime. In that case, you would be correct. The officer could only look for the suspect. 

Since the officer had PC to believe that he was looking for a person, he could only look where a person could hide. In other words, he could look in the bedroom, in the closet, under the bed, etc. He could not lawfully open drawers in a cabinet, look in boxes, etc. because a person could not have in those locations.

In King, unfortunately for him, he had drugs in plain view when the officer entered.

 


 

 

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Case: Confession in a sexual assault and murder of a 14 year old girl.

Notable points: A 17 is an adult in Texas under criminal law. There is no need to get certified as an adult. A person  ceases to be a child on his 17th birthday. Also, if a person consents to talking with the police (not being detained), consents to a search, consents to give a statement, etc., the police are not required to have probable cause. A person can consent to any of that. 

 Case: 

A 14 year old girl had been sexually assaulted by her 19 year old half brother. Apparently this was an ongoing relationship and what used to be called statutory rape or sex with an underage child whether with consent or not.

One day the half brother stabbed his sister to death, I believe after having sex with her.  Maybe to keep her from reporting the assaults but I am not sure. In any case he confessed after volunteering to take a polygraph and failing. The case is not about him however.

In the confession the brother implicated another person who was a 17 year old adult. The police showed up at the 17 year old’s home at 3am. The homeowner, father of the 17 year old, consented to allow officers to enter the home and speak to the 17 year old. The officers (3?) went to the bedroom and woke the 17 year old up. They said, we need to talk and the 17 year old said “okay”. These facts do not appear to be in dispute. So it’s not like the police gave one version and the 17 year old (or family) another.

 The police led him to the police unit since he had consented to speak with the officers by saying “okay” when asked. He was only wearing the T-shirt and boxers that he was sleeping in. The officers told him that he was not in custody but had to be handcuffed if in the back of the unit. He would have the handcuffs removed at the police station.

Once arriving at the police station, the police took off the handcuffs and asked if he wished to talk. Even though he was told that he was not in custody, he was given his rights under Miranda to make sure that he was volunteering to speak with officers.  It was kind of like a safeguard just to make sure he agreed to talk. After being read Miranda, the 17-year-old agreed to talk. He was confronted about the 19 year old’s confession that implicated him. Being confronted with that fact, he confessed to taking part in the crime. He did not specifically admit to taking part in the actual killing however under Texas law, if you take any part in a crime, then you to be charged with a crime.

After that confession, the trial judge admitted the statement as evidence at the trial. The 17 year old was convicted and I believe given 35 years in prison. He appealed to the district appeals court, and they agreed with the trial judge, the confession was with consent. He made his final appeal to the Texas Court of Criminal Appeals (supreme court for criminal law) and they simply refused to hear the case.

The 17 year old then appealed to the federal system, saying that his Fourth Amendment rights were violated. So even though the police were allowed with consent to another home and to speak with a 17-year-old, asked him to go speak to the officers and he said okay, was told that he was not in custody, was put in handcuffs just for the trip but then they were removed immediately after arriving at the station, was read the Miranda warning, just to make sure he understood that he was consenting to giving a statement and after being confronted with the fact that the 19-year-old had already confessed, his lawyer claimed that his rights were violated.

Good confession or a violation of rights?

In the Police Academy I would ask the cadets, if you say it was a lawful confession with consent, why?  If you say it was an unlawful confession, why?

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There is a legal doctrine of the Exclusionary Rule. That is, once the police violate a person’s rights, any evidence gained afterwards is lost. A violation of rights typically doesn’t include physical abuse but usually a mistake by an officer.

Example scenarios. In both situations a guy stops to speak with an officer and is later arrested for a crime. 

1. A guy is walking down the sidewalk and an offices says, “Come here a minute, I want to ask you something”

2. A guy is walking down the sidewalk and an officer says, “Do you mind if I talk to you for a minute, I want to ask you something.

1. would likely be seen as a detention requiring reasonable suspicion of a specific crime. If none exists, any evidence is thrown out. 2. would likely be seen as a voluntary encounter with consent of the person stopped. Reasonable suspicion is not likely to be an issue since the person agreed to talk with the officer after being asked if “he minded” talking with the officer.

See the difference? In the first scenario the office says come here and in the second he says, do you mind talking. One is an order, the other is a question  

So…..

What would a reasonable person believe under the same situation is what must be answered by the court (from the trial judge and potentially all the way up to the US Supreme Court).

The case I described was an actual case from Harris County, Texas that made it all the way to the Supreme Court. The 17 year old was asked to come in and was told that he was not in custody but  just to make sure they were doing the right thing, the officers read Miranda anyway and the 17 year old agreed to talk/confess.

Even though he said, “Okay” when asked by the officers to go with them, the 17 year old, in the opinion of the Supreme Court, decided that under the circumstances he would feel that he was being arrested. Even though the officers said no he was not under arrest, the fact that they handcuffed him after suspecting him of a murder and put him in the back of the police car in handcuffs should be considered an arrest. Would a reasonable person believe that he is free to leave at that point? The Supreme Court said no, that is an arrest no matter what the officers call it  

The US Supreme Court in a UNANIMOUS decision said that the 17 year old should have be considered under arrest and therefore his confession not allowed into evidence. Even though the officers later, attempt to put a 17-year-old at ease and to comply with the Fourth Amendment and the Miranda rights, it was too late.

Remember that in the Exclusionary Rule, once the officers make a mistake, even with the best intentions and thinking that they are doing the right thing, it doesn’t matter. All subsequent evidence is lost. Had the officers not handcuffed the kid or if they would have gotten the father to give the kid a ride to the police station, the confession likely would have been admissible as evidence.

 

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2 hours ago, tvc184 said:

or if they would have gotten the father to give the kid a ride to the police station, the confession likely would have been admissible as evidence

That was one of the most questionable mistakes. I would've never got in the police car. "Pops call the lawyer and we'll meet him down there if they show back up with a warrant. And while you wait, make sure to remove yourself from my property."

Might not have worked out. But at least I wouldn't be a case study.

BTW. As a youth during spring break, which is this week lol, some kids in the neighborhood decided to do a lil vandalism. We thought we were smart about it. But didn't know that one of the kids was already on juvenile probation. After people stated noticing things, the law was called out. They went straight to his house. His mom let them walk right in the house. Then they started searching his room. They found other things that had nothing to do with what we were doing that weekend. So after that, they come knock on my door. My dad kick my @.. outta bed and says the police need to talk to you. Get your But outside and tell the truth. Long story short, we faced charges for the other stuff they found as well. Funny thing is that guy is still 1 of my best friends.

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6 hours ago, tvc184 said:

There is a legal doctrine of the Exclusionary Rule. That is, once the police violate a person’s rights, any evidence gained afterwards is lost. A violation of rights typically doesn’t include physical abuse but usually a mistake by an officer.

Example scenarios. In both situations a guy stops to speak with an officer and is later arrested for a crime. 

1. A guy is walking down the sidewalk and an offices says, “Come here a minute, I want to ask you something”

2. A guy is walking down the sidewalk and an officer says, “Do you mind if I talk to you for a minute, I want to ask you something.

1. would likely be seen as a detention requiring reasonable suspicion of a specific crime. If none exists, any evidence is thrown out. 2. would likely be seen as a voluntary encounter with consent of the person stopped. Reasonable suspicion is not likely to be an issue since the person agreed to talk with the officer after being asked if “he minded” talking with the officer.

See the difference? In the first scenario the office says come here and in the second he says, do you mind talking. One is an order, the other is a question  

So…..

What would a reasonable person believe under the same situation is what must be answered by the court (from the trial judge and potentially all the way up to the US Supreme Court).

The case I described was an actual case from Harris County, Texas that made it all the way to the Supreme Court. The 17 year old was asked to come in and was told that he was not in custody but  just to make sure they were doing the right thing, the officers read Miranda anyway and the 17 year old agreed to talk/confess.

Even though he said, “Okay” when asked by the officers to go with them, the 17 year old, in the opinion of the Supreme Court, decided that under the circumstances he would feel that he was being arrested. Even though the officers said no he was not under arrest, the fact that they handcuffed him after suspecting him of a murder and put him in the back of the police car in handcuffs should be considered an arrest. Would a reasonable person believe that he is free to leave at that point? The Supreme Court said no, that is an arrest no matter what the officers call it  

The US Supreme Court in a UNANIMOUS decision said that the 17 year old should have be considered under arrest and therefore his confession not allowed into evidence. Even though the officers later, attempt to put a 17-year-old at ease and to comply with the Fourth Amendment and the Miranda rights, it was too late.

Remember that in the Exclusionary Rule, once the officers make a mistake, even with the best intentions and thinking that they are doing the right thing, it doesn’t matter. All subsequent evidence is lost. Had the officers not handcuffed the kid or if they would have gotten the father to give the kid a ride to the police station, the confession likely would have been admissible as evidence.

 

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So if they would not nave handcuffed him and questioned him on the scene, the confession would have been allowed?  

Don't police put folks in handcuffs without being under arrest on the scene sometimes for their safety?  If so, would any questions asked later of that person be inadmissible unless they were first placed under arrest and read the Miranda rights?

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1 hour ago, LumRaiderFan said:

So if they would not nave handcuffed him and questioned him on the scene, the confession would have been allowed?  

Don't police put folks in handcuffs without being under arrest on the scene sometimes for their safety?  If so, would any questions asked later of that person be inadmissible unless they were first placed under arrest and read the Miranda rights?

It is likely the statement would have been allowed. There are a couple of ways this probably could have been accomplished lawfully. 

 The appeals courts and particularly the Supreme Court will generally only answer the question being argued. Discussions like this are interesting (in my opinion) but the courts don’t make rulings outside of a specific question. Meaning… while it is a very good and pertinent question of, had the police done “this” (whatever “this” is), would it be legal, those what if scenarios are not addressed. 

The SC will not say, this confession was a violation of the Fourth Amendment however if the police would have had his father drive him or had the police taken the confession at the home or blah blah blah…..”.

If a case in the future addresses such a what if question, it will be addressed then.

 

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2 hours ago, LumRaiderFan said:

So if they would not nave handcuffed him and questioned him on the scene, the confession would have been allowed?  

Don't police put folks in handcuffs without being under arrest on the scene sometimes for their safety?  If so, would any questions asked later of that person be inadmissible unless they were first placed under arrest and read the Miranda rights?

Another good but different question. There are two Supreme Court cases that I use to teach this in the police academy. 

One was just discussed in Kaupp. The police handcuffed Kaupp without probable cause and a unanimous Supreme Court said that handcuffing without probable cause was an arrest, no matter what the police said, rendering anything afterwards as inadmissible in court.

I follow that up with another case where the police handcuffed a person without probable cause which again resulted in a unanimous ruling. This ruling however, went in favor of the police. So handcuffing without probable cause was lawful…. leaving us with…. Huh??

In that case the police were serving a lawful search warrant at a home. If I remember the details correctly, a woman was renting out a couple of rooms in her home for extra money. One was to a construction worker but he was also affiliated with a local violent gang. The police had a lawful warrant to look for evidence of gang activity and for illegal weapons. When the police made entry into the home, they rounded up everyone in the home and handcuffed them, I believe placing them in the living room where they could all be watched while the police made their search.

One was an illegal alien named Mena. During the detention and questioning Mena was found to be an illegal alien. She sued saying that she was unlawfully detained under the Fourth Amendment. The SC ruled unanimously that the detention in handcuffs was lawful as well as officers speaking to her.

 The difference in the unanimous rulings that appear to be opposite? One had a fairly high safety concern where the other had practically none. The SC generally goes pretty heavy in favor of the police when safety is the concern. In Mena the police had probable cause of a violent gang member possibly with weapons. Not knowing who inside the house may have been involved with the gang or who may have been helping to hide the weapons, the SC ruled that the safety of officers and others was very important so it was not a violation of the Fourth Amendment. I think that specifically answers your question … which is why it is a great question.

In teaching and in supervising I bring up that the police are always in danger because we never know what people are intending to do, who may be armed, etc. BUT…. we can’t simply handcuff everyone because everyone might be a threat. There has to be an articulable reason to take the extraordinary step of handcuffing without probable cause for arrest.

In Kaupp there appeared to be no danger of an armed and dangerous person when the police woke up a 17 year old in bed, in his underwear and surrounded by 3 officers. Mena was also in a home and handcuffed without probable cause but obviously the scene was entirely different.

The police cannot negate an unlawful detention or arrest simply by telling the person (such as Kaupp) that he isn’t under arrest. 

Those cases are guidelines to follow. Each case is different however. In the what if scenarios we can come up with many situations that are not so clear as those two unanimous decisions. If the police actions are questioned (as any good lawyer would certainly do), the judge at the trial has to make his own ruling based on the circumstances. Either side can then later appeal that decision. It is almost comparable to an umpire in baseball calling balls and strikes. The umpire knows the rules but sometimes the ball is in the middle of the strike zone and easy but sometimes it is near the edge. In baseball the umpire’s ruling is final. In court the judge’s decision can be appealed. 

Here is a short summary of Mena. 
 

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Officers go to a family disturbance between a man and woman. While officers are speaking with both of them, she got really mad and said I’m tired of him using cocaine and he left it in the bedroom.

The woman says I have a lawful right to that bedroom and you can go in there with my consent. The man says I have a lawful right to the bedroom and you do not have my consent.

So the police have lawful consent to go into the bedroom from one of the parties at the location but the husband and wife are not in agreement. The police go in and find the cocaine where woman said it would be, arrest the man and he is convicted.

Lawful search with consent? 

 

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6 hours ago, tvc184 said:

Officers go to a family disturbance between a man and woman. While officers are speaking with both of them, she got really mad and said I’m tired of him using cocaine and he left it in the bedroom.

The woman says I have a lawful right to that bedroom and you can go in there with my consent. The man says I have a lawful right to the bedroom and you do not have my consent.

So the police have lawful consent to go into the bedroom from one of the parties at the location but the husband and wife are not in agreement. The police go in and find the cocaine where woman said it would be, arrest the man and he is convicted.

Lawful search with consent? 

 

Yes.  I don't think you need consent of everyone in the home.   Something similar would be a parent calling the police and saying "Come search my adult son's room, I think he's doing drugs or involved in illegal activities"   The son isn't going to consent (obviously) but the parent does and is the lawful owner of the home.

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