he was pulled over for no seatbelt and then breathalized. He was taken to jail, then released on probation - no alcohol at his residence. Is it breaking probation for him to visit friends if they have alcohol in their house, and can they search the friends' house with no warrant.?
Thomas C GallagherCriminal Defense AttorneyMinneapolis, MN ·
If your friend is on pretrial release with a condition of no use or possession of alcohol, and he is at your home where you have alcoholic beverages, would those facts justify police searching your home? Without more facts than that, no. There could be other facts that could result in a lawful search of your home, unlikely though they may be. Assuming you had no contraband in your house, even if there was such a search I'm not sure how it would affect you.
As the other attorney stated, probationary conditions differ. In many cases abstinence from alcohol is a requirement of probation on DWI's. However, a warrantless search may not occur unless there is consent or some illegal contraband is in plain view.
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You would have to clarify the conditions of your friend's probation. A usual condition for an alcohol or drug offense is no use of alcohol. Occasionally, a judge will order no possession of alcohol. Generally speaking, the more serious the offense for which he is on probation, the more onerous the conditions may be. Possession can be a gray area where one is in the immediate vicinity of alcohol.
The police cannot search someone's home without a warrant unless an important exception applies. There are three main exceptions to the warrant requirement: (1) consent of the home's occupant, (2) hot pursuit of a suspect, and (3) illegal items in "plain view."
Disclaimer: This answer is for informational purposes only. It does not constitute legal advice, and does not create an attorney-client relationship. For actual legal advice specific to your circumstances, consult an attorney in your state.
Whether it violates the terms of his probation depends on what the terms are. If it says he's not supposed to be around alcohol, then yes, it would violate. It's more common to see terms prohibiting consumption of alcohol, in which case just being in the house with alcohol would not violate ... but it won't make the PO happy either.
I have a hard time believing any judge would uphold the search you describe. Doesn't mean it couldn't happen, and doesn't mean the cops wouldn't search it anyway regardless of legality and cause you some major headaches.
Do your friend a favor and make it easy for him to stay out of jail. Gray areas are no good for anybody but lawyers. If you have to ask whether something could get your friend arrested, assume it's probably not the best thing to do with him around.
