Is this Breaking and Entering?
Posted By Lloyd Golburgh on Aug 28, 2009 10:42am PDT
"Is this breaking and entering" asked: My girlfriend at the time invited me to stay with her at her home (IN A
GATED COMMUNITY) so I did. Some days later I went out and returned home
(in her home). The door was locked so I went in through the window.
When I saw her bringing another man home, I left. I took my belongings
with me. She called the law and they met me at the front gate. They
searched me and found my items and a small amount of a controlled
substance. They arrested me for B&E, Theft, and a controlled
substance. If I now live there, how can I have B&E my own home, and
if the charges can be dropped because of a fl. statute that defines "my
home," should the controlled substance charge be dropped as well
because of an unwarranted search?
FloridaDUIPRO.com answered: as far as the B&E charge, so long as you can establish that she
never told you that you were no longer welcome, you should beat that
charge. if the belongings were yours, you should beat that charge. and,
as far as the controlled substance charge is concerned, officers can
only search you prior to arrest if they have reasonable cause to
believe you are armed. if they didn't have that reasonable cause that
you were armed and you were searched before you were arrested, the drug
charge can be beat; however, if the officers have probable cause to
arrest you and do so, they can search you 'incident to arrest' and the
drug charge will stick.