LEGAL: APPEALS COURT SIDES WITH HOMEOWNERS

Ruling Affirms Right Of Parents To Challenge Search Of Adult Son's Room

A federal appeals court has affirmed the right of homeowners who live
on their property to challenge search warrants served on adult
children living at home with them.

The case involves Basel and Fatima El Farra, a Fallbrook family whose
home was raided and searched by Oceanside police in May 2005.

The raid primarily focused on a single room of the home where the
couple's son, Mohammad El Farra, lived and where police seized more
than a pound of marijuana, guns and $41,000 in cash.

Federal authorities said the money, which was found on top of and
inside a safe inside the son's room, was earned through drug sales and
therefore subject to forfeiture. The couple claimed the money was
theirs and demanded its return. They fought the government's bid to
keep the money.

To wage that battle, the parents demanded the court unseal the
affidavit that served as the basis for the search warrant. The federal
judge in that case, however, ruled that just because the parents owned
and lived in the home, that alone did not give them a right to
challenge the search warrant.

The 9th Circuit Court of Appeals disagreed and last month ruled that
the couple "had a legitimate privacy interest" and thus had the right
to challenge the search warrant.

In order to get a search warrant, a law enforcement officer makes a
sworn statement known as an affidavit to a judge, explaining why he
thinks the search will yield evidence of criminal activity.

Such challenges to search warrants generally are made in court, after
the search has taken place, rather than on the spot at the time of the
search.

The appeals court decision upholds long-established rights of
homeowners who live in their residence, said David Steinberg, a
professor at Thomas Jefferson School of Law in San Diego. The
lower-court ruling rejecting that notion was a bit of an
eyebrow-raiser, he said.

Steinberg said the Fourth Amendment to the U.S. Constitution, which
allows for protections against illegal search and seizure, gives
rights to the person who owns and lives in the home.

"It's surprising to me that a court would rule that a homeowner lacks
standing to challenge a search of their home," Steinberg said. "The
core purpose of the Fourth Amendment is to protect people in their
homes."

Attorney Michael McCabe, who represents the parents, also said the
appeals court ruling affirms the notion that homeowners have the right
to file a legal challenge against a search of their home.

"Parents, you have a privacy interest in the separate areas of your
home, even for your adult children who live with you," attorney
Michael McCabe said. Speaking on behalf of the couple, he said they
would not comment for this story.

Aside from the money, police found marijuana, firearms and drug
packaging items in the son's bedroom. The son ultimately pleaded
guilty to violating state drug laws. He was sentenced to probation.

The crime was handled in state court, but the money became a federal
issue.

As is common in many drug cases, federal prosecutors began civil
proceedings to have the cash forfeited.

The federal government said the stash of cash was drug proceeds, and
pointed to the son's own admission that it was drug money. Also,
prosecutors pointed out, the couple did not know the combination to
the safe on the night of the search.

The El Farras, though, said the money was theirs, not their son's, and
that it had been legally earned years earlier.

The parents wanted to challenge the evidence that led to the search
warrant. Prosecutors argued that the bedroom was separate enough from
the rest of the home and was under the son's control, not the parents.
Thus, they argued, the El Farras didn't have any legal right to
privacy in it.

The bedroom was a regular part of the home, and had a door leading to
it from the hallway. But it also had a sliding door that led to the
back patio of the home, a door that served as an additional entrance
to the home.

That back door, prosecutors argued, established the bedroom as a
separate part of the home ---- and thus it fell outside of the
parents' control.

The trial judge in the parents' case agreed.

The case went to a federal trial. A jury found that the money belonged
to the son. Thus, the nearly $41,000 would become government property.

The parents appealed, saying they should have been allowed to
challenge the warrant in court.

Last week, the 9th Circuit Court of Appeals said the parents were
correct, finding that the son's bedroom "was not sufficiently
separate" from the rest of the home to negate the parents' privacy
rights.

The court noted that neither the son nor the parents had taken steps
to separate the son's bedroom from the rest of the house ---- by
installing a lock, for instance, or having the son pay rent.

"Despite Mohammad's (the son's) occupancy, his bedroom formed part of
the home, an area in which Basel and Fatima (the parents) had a
legitimate privacy interest," the 9th Circuit Court found.

The ruling in no way means the couple will get the money back, or that
the appeals court has taken a position on that matter. It simply
affirms the right of the parents, as the owners of the home, to
challenge the search warrant.

If the parents lose in their attempt to poke holes in the warrant,
McCabe said, the jury's verdict giving the money to the government is
reinstated.