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Old 02-16-2014, 09:52   #21
JuneyBooney
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Quote:
Originally Posted by msu_grad_121 View Post
Wow, that's awesome. I should probably give some background on this whole thing. We had roll call training the other day which discussed a situation like this: you are dispatched to a house for a parking complaint. You arrive and see cars parked all jacked up. You attempt to make contact with the residents by knocking on the door. When you knock, the door swings open freely (they were very specific that you don't turn the handle and have no intention of opening it, it just opens when you knock) and no one answers when you announce your presence. You make entry to secure the home and smell Marijuana. You run into a resident and several friends in a back bedroom smoking up and they give up the weed as soon as you ask. You also have Marijuana and paraphernalia in plain sight. The question basically boils down to whether or not the entry was good or if the evidence will get tossed.

This of course created a divide between my shift, with both Sgts falling on opposite sides. I, as the most vocal debater, was tasked with researching the situation and getting back to the Sgt who disagrees with my position.

What says the brain trust?
There was a similar case locally recently. A neighbor had called about smelling marijuana and the leos went to investigate. The door was ajar and the officers walked in and found the son smoking weed in his room with a window open. They looked around in plain sight and found scales and bags of weed for sale. He is in jail right now on the charge. I think it would depend on good faith and the judge's opinions in your county. If you are acting in good faith and under the scope of authority of your job I don't think you would get jammed up on that at all. I think it would stick as a valid charge. This arrest was after the suspect opened the door and let them in voluntarily so this would not be the same as MSU is describing. Just my opinion.
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Last edited by JuneyBooney; 02-16-2014 at 18:36..
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Old 02-16-2014, 13:04   #22
Sharky7
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With only a door being open after knocking, I would also say not to enter.

Nothing wrong with putting someone on the back door and front door - then attempting to contact the homeowners. Try using phone numbers for prior calls for service or case reports.

Next, contact neighbors. If you get a hold of a neighbor and they say the people are on vacation and always lock their door - now you got something.

Or, if you look inside the windows of the home and see someone in need of help or signs of a residential burglary.

I just don't see any exigency to enter right away without at least taking a few steps to figure out what is going on first.
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Old 02-16-2014, 14:16   #23
txleapd
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Quote:
Originally Posted by JuneyBooney View Post
I think it would depend on good faith and the judge's opinions in your county. If you are acting in good faith and under the scope of authority of your job I don't think you would get jammed up on that at all. I think it would stick as a valid charge. Just my opinion.
Your opinion flies in the face of every bit of case law I've ever seen, and it is wrong.

There are very few exceptions to the warrant requirement of the 4A, especially when you're taking about a residence.

Minus exigency in some form, that would not stand.

As for the example you just gave about the kid smoking weed, that won't stand either. The following is for your education...

Quote:
US v. Mongold, 12-7073 (10th Cir. 2013)-Officers entered a home after the door was opened in response to a knock. The officers smelled marijuana. They forced their way in to prevent the destruction of evidence. The court found the entry was unlawful.

Before an officer can, without warrant, enter a home to prevent the destruction of evidence the following criteria must be met:

The entry must be based on probable cause.

There must be a "serious crime".

The destruction of evidence is likely.


The court determined that lacking probable cause of distribution or trafficking of marijuana, the odor only indicates simple possession, which in Oklahoma where the case originated is a misdemeanor offense. Therefore, the "serious crime" requirement was not met.
The requirement that it be a serious crime has actually been around for a while. Most people just have never paid attention to it.

Please don't offer any more advice on the subject. Arrest, search and seizure is the foundation of police work. You don't need to be passing out bad info, like you know what you're talking about. That could get someone in bad trouble, if they made the poor decision to listen to you.


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Last edited by txleapd; 02-16-2014 at 14:19..
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Old 02-16-2014, 16:58   #24
tc215
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In Kentucky v King, the US Supreme Court made no mention of a requirement for a "serious crime".

I had a case go to trial in federal court a few months ago. I went to a local hotel to do a knock and talk in reference to a tip about drug activity. I could smell the weed being smoked in the room way before I got to the door. When I knocked, one of the suspects thought I was a customer and opened the door. When he realized I was the police he tried to slam the door on me. I could see another guy running towards the back of the hotel room to where I thought the bathroom was (ended up being the closet).

I was able to keep him from getting the door shut and my partners and I made entry. Ended up getting consent to search the room and found 4 ounces of crack. The US Attorneys Office ended up taking the case.

There were 5 defendants, and the ones that didn't plead guilty were found guilty by the jury. At no point did the entry ever come up...The only thing they tried to suppress was the video from the body cam I was wearing. I made entry based on the weed smell and the destruction of evidence, and the US Attorneys Office was good with it and none of the defense attorneys fought it.

This was in the 6th Circuit, obviously different circuits and states can and do have different opinions.

Last edited by tc215; 02-16-2014 at 17:10..
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Old 02-16-2014, 17:50   #25
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If I'm not mistaken, wasn't Kentucky v King about police-created exigency?

The defense's argument was that the evidence should be supressed, because the police knocked on the door, and that they created exigency.

The supremes ruled that a police officer knocking on a door is reasonable, and the police don't create their own exigency when they do that.

You're right that SCOTUS sets binding case law for the entire country, but case law out of other districts is legal precedence, and considered persuasive when deciding subsequent cases with similar issues or facts.

Unless the district you're in has already made a binding ruling, legal precedence very much comes into play.

We have to deal with it all the time.

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Old 02-16-2014, 18:08   #26
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Yes, the exigency for their warrantless entry was based on the likely destruction of evidence, and the defense argued that the police created that exigency by knocking on the door.

From the decision:

Quote:
It is well established that “exigent circumstances,” including the need to prevent the destruction of evidence, permit police officers to conduct an otherwise permissible search without first obtaining a warrant. In this case, we consider whether this rule applies when police, by knock * ing on the door of a residence and announcing their pres * ence, cause the occupants to attempt to destroy evidence. The Kentucky Supreme Court held that the exigent cir * cumstances rule does not apply in the case at hand be * cause the police should have foreseen that their conduct would prompt the occupants to attempt to destroy evi * dence. We reject this interpretation of the exigent circum * stances rule. The conduct of the police prior to their entry into the apartment was entirely lawful. They did not violate the Fourth Amendment or threaten to do so. In such a situation, the exigent circumstances rule applies.
Quote:
This Court has identified several exigencies that may justify a warrantless search of a home. See Brigham City, 547 U. S., at 403. Under the “emergency aid” exception, for example, “officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” Ibid.; see also, e.g., Fisher, supra, at ___ (slip op., at 5) (upholding warrantless home entry based on emergency aid excep * tion). Police officers may enter premises without a war * rant when they are in hot pursuit of a fleeing suspect. See United States v. i>Santana, 427 U. S. 38, 42–43 (1976). And—what is relevant here—the need “to prevent the imminent destruction of evidence” has long been recog * nized as a sufficient justification for a warrantless search. Brigham City, supra, at 403; see also Georgia v. Randolph, 547 U. S. 103, 116, n. 6 (2006); Minnesota v. Olson, 495 U. S. 91, 100 (1990).3 B
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Old 02-16-2014, 21:33   #27
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I always thought Brigham City v. Stuart was a good example of exigent entry of residence for the safety of persons.

http://www.caselaw4cops.net/cases_ne..._v_stuart.html
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Old 02-16-2014, 21:45   #28
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Ask Dukeboy about KY Vs King - it's his department, he may have further insight.
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