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Lawful Police Conduct During a Drug Investigation

Our question is: Were the police lawful during this drug investigation?

This is a bit of a long fact pattern.

There’s a lot to it so this is going to take a little longer than usual.  But isn’t that why we’re here, so I can dissect the legal issues that you are facing out there every single day so that I can help you get it right every single time?

So the scenario comes from an officer in Arizona.  Remember, I’m giving my answer based on what I’m told.  If you’re reading this, and you’re thinking, “Anthony, I was involved in that, and there’s something else you don’t know or you didn’t say.”  And I think it’s important to reach out to me, whether you’re the one writing to me on this, or you are part of the investigation.  So I’m here to help, not to criticize.  We’re all here to learn.

Now, this incident involves divorced parents.  The Mom does not have custody of the kids.  And I don’t think that according to the fact pattern, she cannot have custody of the kids.  But the Dad has custody of her kids.  There’s a minor and an adult child in play here.

The minor child calls up Mom and says, “Dad has drugs. The drugs are out on the counter. Dad has passed out. And I’m afraid.”

Mom calls the adult son who is not home yet.  I guess he’s on his way home or whatever, and says, “Hey, I need you to check on this. Does your Dad have narcotics?”

The adult son gets home, sees that Dad has passed out, sees the drugs in plain view, takes a pictures of the drugs and the paraphernalia, and sends it to Mom.  Mom calls the police.  She shares this information with the police.

The officers respond.  They do a knock and talk.  Dad comes out of the home.  He’s in boxer shorts, and it’s kind of cold outside.  But they do talk to him.  He denies having any narcotics in the house. The deputies ask the Dad, “Do you want us to come inside the house? Can we just talk inside your house since it’s cold outside?”

They probably want to see some plain view evidence.  Let’s not discard that fact.  But the Dad does invite them in.  Once inside, the deputies start telling him what they know: that the sons, both the minor and the adult ratted out the Dad, that they’re scared that there are drugs in the house, and that his son sent a picture of the drugs.

Apparently the drugs are in the bathroom.  They cannot see the inside of the bathroom.  Dad is still denying any narcotics.  He also refuses consent to search.  The deputies then detain the house, and detain him in handcuffs.  Why?  Because there’s a sword in plain view, there’s a screwdriver, there are weapons of opportunity.

So now they’re going to go and get a search warrant.  They’re not going to conduct a warrantless search.  The patrol sergeant asked for a warrant to be written for the master bathroom, where they think the drugs are, based on the information known at the time, based on the picture and the kids and what the mom said.  Also they have the photo of the narcotics and they see that the metadata shows that it was taken within the last two hours by the kid’s cell phone.  So this is all adding up.

Now let’s pause the story.  The Number One question is: Do you think probable cause is established?  Absolutely!  Probable cause is a fair probability that a crime has been or is about to be committed.  And that is based on facts and circumstances that will lead a reasonable and prudent officer to believe those facts.

What do we have here?  Mom and Dad are divorced.  Certainly there might be some bias by Mom against the Dad but Mom is not just doling out claims.  She has proof.  Also, she’s bringing in the kids with their own testimony and so forth.  And why would the minor be lying about the data?

In other words, the cops are allowed to presume that these witnesses are being truthful unless there’s something conflicting and there’s something else going on.  They have the picture, and the metadata matches.  This is; so far so good. I definitely believe that there’s probably cause here.

The next question: Do you agree that the detain and freeze to detain the home and the suspect to prevent destruction of evidence was lawful?

Yes, I do.  Absolutely.

Now, let’s talk about a couple of other things.  When the police are lawfully inside the home, and they have probable cause that there is destructable evidence inside the home and they are going to seek a search warrant, they are allowed to freeze it because of the destructibility of the evidence.

That case is Illinois versus MacArthur, US Supreme Court.  That’s not the exact same facts as here, but the police were lawfully inside a home for a civil standby.  The wife ratted out her husband for having narcotics.  They locked it down to get the warrant.  MacArthur was saying, “No, you can’t stay in my home.”  The Supreme Court says, That’s not how this works. It was reasonable to lock down the home.”

I guess there was also some concern that the police used a ruse to get into the home.  In my opinion, based on these facts, they did not use an unlawful ruse.  An unlawful ruse to get into a home is where you tell somebody something that they would be compelled to say yes to.

So here are some examples.  You go to a house and you want to look inside.  You want to see if there’s some plain view evidence and you tell them, “Hey, we have a report that there’s a gas leak here and we’ve got to check out your apartment.”  That’s an unlawful ruse, right?  People are going to feel compelled to let the police in to check out the gas leak.

Another one was, “Hey, we have reports that there’s a bomb somewhere in the building.”  And the cops got consent to enter the home.  They saw plain view evidence.  Clearly, that’s that’s not going to work because you’re creating exigency.

But the cops did not create any kind of coercion here.  They simply asked him, “Hey, you’re in boxer shorts. Do you want to go inside your house and talk?”

At that point he could have said, “No, I’m good.” or  “Wait out here. Let me go grab some clothes. And I’ll come back.”  He could have said that.  So the police trying to consensually get into his home by kind of trying to convince him that it’s cold outside is not improper.  There’s nothing, absolutely nothing, improper about that.

Cops can say stuff like that, even if their intent is to stay inside the home, as long as they did not coerce him.  Based on these facts, there was no coercion.  Detectives then chose to mirandize and interview the handcuffed suspect who had been detained for about an hour.  That’s fine.  You mirandize him when he’s in arrest-like custody.  The detectives tried to convince him to consent to search the home, but the defendant says, “No.” Okay.  Are we good?

We’re going to pause here.  Are we good?  Yes.  The detectives can mirandize him.  But there is one problem that I see.  This guy has been detained for an hour.  Where is the warrant?  Who’s getting the warrant here?  When you’re inside a home, and you freeze it to go get a warrant, what does that mean you have to go and do?  Somebody had better be working on that warrant, right?

Because if we have this dude detained on his couch, and we have made no diligent effort to go secure that warrant, we have a problem.  His rights are implicated here.  We are in his home, we froze his home.  So that’s a concern for me.  So I would like to know more about that.  I’m not saying that we’re going to get things tossed.  But that is a problem.

The last thing I want to talk about is that they were going to seek the search warrant instead of using a warrantless exception.  But I have tell you, based on what I see here, that there is no warrantless exception.  There is no consent.  There is no exigency that I can see.  The evidence was not about to be destroyed or removed.  So I don’t see how we’re even going to get the evidence without a search warrant in this case.  So I just want to make that point.

That’s my opinion, and we’ll leave it there.

If you have more questions, more feedback, if you know something about this case that I missed and you think it changes the answer, let me know. This is the type of stuff that really helps cops get it right every time, talking about these issues and walking through them, step by step.

Thank you for your support.  Hopefully I’ll see you inside one of the live classes or online.  Until next time, my friends stay safe.


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