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Old 06-22-2016, 04:07 PM
UltraVires UltraVires is offline
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Criminal Defense Attorneys--Bad warrant but exigent circumstances

Time for my monthly plea for help from you guys.

Here's the scenario. Officers come to a hotel room and suspect criminal activity. Under what are arguably exigent circumstances, the officers do not take immediate action, but go back to the office and type a search warrant.

They then muck up the search warrant so badly that the warrant is held invalid. However, they argue that this is harmless because the search could have been justified by exigent circumstances.

My argument is simple: There were no exigent circumstances because the officers themselves believed there was time to go get a warrant. You can't argue an emergency if you yourself did not act as if there was such an emergency.

Is there any case law that support this claim?
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Old 06-22-2016, 04:34 PM
Loach Loach is offline
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Quote:
Originally Posted by UltraVires View Post
Time for my monthly plea for help from you guys.

Here's the scenario. Officers come to a hotel room and suspect criminal activity. Under what are arguably exigent circumstances, the officers do not take immediate action, but go back to the office and type a search warrant.

They then muck up the search warrant so badly that the warrant is held invalid. However, they argue that this is harmless because the search could have been justified by exigent circumstances.

My argument is simple: There were no exigent circumstances because the officers themselves believed there was time to go get a warrant. You can't argue an emergency if you yourself did not act as if there was such an emergency.

Is there any case law that support this claim?
Other than the fact that exigent doesn't exactly mean emergency that sounds right but I don't know the exact case law.

Now that I have given my opinion without a cite I'll push this over to GQ since the question should have a concrete answer.
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Old 06-22-2016, 04:41 PM
dolphinboy dolphinboy is offline
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ex·i·gent ˈekzəjənt/ adjective formal

pressing; demanding.

"the exigent demands of the music took a toll on her voice"
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Old 06-22-2016, 04:57 PM
Loach Loach is offline
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Originally Posted by dolphinboy View Post
ex·i·gent ˈekzəjənt/ adjective formal

pressing; demanding.

"the exigent demands of the music took a toll on her voice"
When it comes to search and seizure exigent circumstances include imminent danger, imminent escape or imminent destruction of evidence. I would consider only one of those to be an emergency but all three are pressing.
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Old 06-23-2016, 02:32 AM
magnusblitz magnusblitz is offline
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(All answers are based on California law)

This is one of those non-detailed hypos I always kinda hate. I'm having trouble imagining what sort of exigent circumstances would even arguably exist, since having time to get a warrant kinda per se means there were no exigent circumstances... for example, in a case dealing with the "hot pursuit" exigency:

Quote:
Originally Posted by People v. Escudero (1979)
These decisions demonstrate that ... "fresh pursuit" of a fleeing felon must be substantially continuous and afford the law enforcement authorities no reasonable opportunity to obtain a warrant ...
You might also find this chapter of the CEB Search and Seizure book helpful:

Quote:
An officer's conduct must be consistent with the justification and with the objectives on which the officer relies. People v Ray (1999) 21 C4th 464, 477, 88 CR2d 1; People v Duncan (1986) 42 C3d 91, 104, 224 CR 654.

Conduct before the entry may negate the officer's asserted belief that there was an emergency. See, e.g., People v Baird (1985) 168 CA3d 237, 244-245, 214 CR 88 (officer waited five hours after smelling ether before entering premises without any attempt to warn or remove persons known to be inside). This does not mean that the officer must rush in immediately. The nature of the emergency may make it advisable to await the arrival of backup officers or other assistance. People v Stegman (1985) 164 CA3d 936, 945, 210 CR 855.

After entry, the officer's conduct must be carefully limited: the officer may only ascertain whether someone is in need of assistance or property is at risk, and to provide that assistance or protect the property. People v Ray, supra, 21 C4th at 477. A search for a person in distress merely permits a cursory look through the premises. People v Roberts (1956) 47 C2d 374, 378-380, 303 P2d 721. Once the emergency or other justification for the entry ends, so does the right to enter, search, or seize. People v Duncan, supra; People v Keener (1983) 148 CA3d 73, 77-78, 195 CR 733; People v Blackwell (1983) 147 CA3d 646, 651, 195 CR 298. Entries subsequent to the initial entry often involve this issue. See §§5.98-5.101.

Last edited by magnusblitz; 06-23-2016 at 02:32 AM.
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Old 06-23-2016, 07:23 AM
Loach Loach is offline
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Quote:
Originally Posted by magnusblitz View Post
This is one of those non-detailed hypos I always kinda hate. I'm having trouble imagining what sort of exigent circumstances would even arguably exist, since having time to get a warrant kinda per se means there were no exigent circumstances... for example, in a case dealing with the "hot pursuit" exigency:



You might also find this chapter of the CEB Search and Seizure book helpful:
True. It's hard to answer with just the vague term exigent circumstances to go off of. The specifics of those circumstances are the first thing the court will look at.
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Old 06-23-2016, 07:31 AM
Cicero Cicero is offline
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Depends on the jurisdiction I would suggest. However, if the evidence is so critical- here at least- the Judge would have a discretion to allow.
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Old 06-23-2016, 07:38 AM
Richard Parker Richard Parker is offline
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Seems like a bad argument, but I don't know the case law. We want cops to get warrants whenever possible, especially when the exigency circumstances argument is a close call. That they chose to get a warrant ought not negate exigency categorically--though obviously it could negate some possible arguments about exigency depending on the facts.
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Old 06-23-2016, 01:42 PM
UltraVires UltraVires is offline
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Here is the hypo:

Officers are called to a motel where they suspect that drug transactions may be occurring in Room 311. Say the desk clerk saw a man carrying a bag with what appeared to be heroin in the bag.

The officers knock on the door and in seconds, a female answers the door. They ask her if anyone else is in the room. She says that her boyfriend named "Steve" is in the bathroom. They ask her to step outside the room and she voluntarily complies. They yell for Steve to step out of the bathroom. The officers hear the toilet flush and hearing a "clank" of the toilet tank.

Steve steps out and voluntarily leaves the room. An officer walks to the bathroom door and notes a bundle of heroin beside the toilet tank. The officer immediately leaves the room and orders the two not to go back inside the room.

The officer returns to his office, types out a search warrant affidavit, (the affidavit does not state that he observed the heroin in the room) gets it approved and comes back and conducts a full search. However, for whatever reason, the warrant is held to be invalid.

The officer argues that even though the warrant was invalid, he could have searched the room based upon the toilet flush and that exigent circumstances were present and he could have searched it without a warrant under the exigent circumstances doctrine.

My question is rather narrow and (possibly) does not rely on whether exigent circumstances would have otherwise been present, nor am I concerned with whether the officer's initial observation of the heroin was an unlawful intrusion on the room. (Except, again, whether that would bolster an exigent circumstance argument).

My argument is that the very fact that the officers did not immediately search the toilet and seize the heroin prevents them from arguing exigent circumstances. Their own actions: believing that there was adequate time to go get a search warrant, rather conclusively proves that the need to search without a warrant was not immediate.

Thoughts?
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Old 06-23-2016, 02:00 PM
Boyo Jim Boyo Jim is offline
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A toilet flushing in in a hotel bathroom is exigent circumstances? How would a "bag of heroin" make any kind of "clank" in a toilet? The officer maybe saw white powder in a bag, he could not be sure it was heroin.

I don't see that the officer had cause to enter the room at all, unless the desk clerk had the authority to permit it. And if the clerk had that authority, no search warrant was needed.
  #11  
Old 06-23-2016, 02:15 PM
md2000 md2000 is offline
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IANAL - My first though is why did the officer enter the room without permission?
If he saw what appeared to be heroin, why not grab it then and there? He's already blown any chance at waiting for a warrant by going in without permission.
Plus, clear evidence of "flushing" would make the circumstances "exigent".
If he for example, saw the package from outside the door to the room, in a public place, it would seem to be the "plain sight" issue wouldn't it? After all, a policeman doing a Terry Stop and feeling a gun, or seeing one poking out of the suspect's belt, does not need a warrant to proceed.

if the officer failed to mention he saw drugs when applying for a warrant, what grounds would he have for a warrant? Is the word of an informant or concerned citizen sufficient to get a warrant to search a private place, absent any supporting evidence?

After all, the whole point of the 4th amendment is to prevent the police from going on fishing expeditions with minimal justification. Invading your privacy should be based on specific, significant reasonable grounds.
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Old 06-23-2016, 02:15 PM
Loach Loach is offline
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There are a couple of problems with your hypothetical.

In general you have an expectation of privacy in a hotel room so the 4th amendment still applies even though you don't own the room. Unless it is after checkout time or the hotel has asked you to leave and you refused then the police can't enter without permission of the occupant.

I don't think you have exigent circumstances at all so it doesn't matter if he tried to say that it was later.

If by some stretch it was determined that he had even reason to enter the room under exigent circumstances then no warrant would be needed since he saw the heroin under the plain view doctrine. He would need a warrant only for items that were found that were not in plain view. If the warrant was found to be invalid then all evidence found during the search would be thrown out. If it was found he had cause to enter under exigent circumstances then the plain view evidence would be fine. If the initial entry into the room was found to be improper it doesn't matter what happened after.
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Old 06-23-2016, 02:18 PM
Loach Loach is offline
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Quote:
Originally Posted by Boyo Jim View Post
A toilet flushing in in a hotel bathroom is exigent circumstances? How would a "bag of heroin" make any kind of "clank" in a toilet? The officer maybe saw white powder in a bag, he could not be sure it was heroin.

I don't see that the officer had cause to enter the room at all, unless the desk clerk had the authority to permit it. And if the clerk had that authority, no search warrant was needed.
The clerk saw the heroin. If the officer saw the heroin he has training and experience to tell heroin by it's appearance and packaging. Not enough to prove but enough to be part of probable cause. The clerk saying he thought he saw heroin is part of the totality of the circumstances but would not have much weight.


With the information provided the clerk did not have authority.
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Old 06-23-2016, 02:24 PM
Loach Loach is offline
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Originally Posted by UltraVires View Post
The officer argues that even though the warrant was invalid, he could have searched the room based upon the toilet flush and that exigent circumstances were present and he could have searched it without a warrant under the exigent circumstances doctrine.
I forgot this part. There may be different rulings in various states but I think it's pretty much going to be the same everywhere. Having a reasonable belief that evidence is being destroyed is a valid exigent circumstance to enter, stop the destruction, seize any evidence that might be in plain view and to hold the room until a warrant can be obtained. What it won't do is give you the whole room. The exigent circumstances won't let you look in closets or luggage etc.
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Old 06-23-2016, 02:47 PM
UltraVires UltraVires is offline
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Quote:
Originally Posted by Loach View Post
There are a couple of problems with your hypothetical.

In general you have an expectation of privacy in a hotel room so the 4th amendment still applies even though you don't own the room. Unless it is after checkout time or the hotel has asked you to leave and you refused then the police can't enter without permission of the occupant.

I don't think you have exigent circumstances at all so it doesn't matter if he tried to say that it was later.

If by some stretch it was determined that he had even reason to enter the room under exigent circumstances then no warrant would be needed since he saw the heroin under the plain view doctrine. He would need a warrant only for items that were found that were not in plain view. If the warrant was found to be invalid then all evidence found during the search would be thrown out. If it was found he had cause to enter under exigent circumstances then the plain view evidence would be fine. If the initial entry into the room was found to be improper it doesn't matter what happened after.

By paragraph:

1) Agreed.

2) I don't think so either, but the judge might, so I want to cover all bases here. The officer will testify that in his training and experience, drug dealers try to flush drugs or hide them in the toilet tank to avoid detection. Therefore his entry into the room was necessary to prevent the destruction of valuable evidence.

3) I agree that the initial entry also hinges on the exigent circumstances argument. If the "plain view" exception applies, I would still think that the act of trying to obtain a warrant would negate that exception.

Really, ALL of the exceptions to the warrant requirement, in one way or another, revolve around the idea that it would be dangerous, impractical, or cause evidence to be lost to require an officer to stop the investigation, contact a judge, wait for a warrant and then search. These exceptions, even though I have not seen it expressly stated, imply that action must be taken NOW to prevent a terrible result. The fact that action was not taken NOW, seems to conclusively prove that the officer did not believe such an emergency existed.
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Old 06-23-2016, 03:42 PM
Loach Loach is offline
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Quote:
Originally Posted by UltraVires View Post
By paragraph:

1) Agreed.

2) I don't think so either, but the judge might, so I want to cover all bases here. The officer will testify that in his training and experience, drug dealers try to flush drugs or hide them in the toilet tank to avoid detection. Therefore his entry into the room was necessary to prevent the destruction of valuable evidence.

3) I agree that the initial entry also hinges on the exigent circumstances argument. If the "plain view" exception applies, I would still think that the act of trying to obtain a warrant would negate that exception.

Really, ALL of the exceptions to the warrant requirement, in one way or another, revolve around the idea that it would be dangerous, impractical, or cause evidence to be lost to require an officer to stop the investigation, contact a judge, wait for a warrant and then search. These exceptions, even though I have not seen it expressly stated, imply that action must be taken NOW to prevent a terrible result. The fact that action was not taken NOW, seems to conclusively prove that the officer did not believe such an emergency existed.
1. Good

2. The problem isn't with his knowledge of what a criminal might do with evidence. It's if the hotel clerk thinking that the suspect had drugs is enough to lead him to reasonably believe there were drugs. It's enough to raise a suspicion but not enough to trigger the exigent circumstances.

3. The problem with the warrant would affect everything that happened after obtaining it not what happened before. The fruit of the poisonous tree falls down not up. If everything was proper up to that point there would be no reason to exclude it. Lets say it was ruled he was correct in entering the room. He saw the drugs. He left them there and secured the room until a search warrant was obtained. Nothing about the warrant negated seeing the contraband in plain view. The fact that he waited until the search warrant was served before putting it in an evidence bag instead of doing it immediately would do nothing to its admissibility.

ETA: What would affect it is if the room and evidence was left unsecured while he left to get a warrant. Then the chain of custody is broken and the whole case is toast.

Last edited by Loach; 06-23-2016 at 03:44 PM.
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Old 06-23-2016, 05:18 PM
md2000 md2000 is offline
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People go into washrooms and flush toilets quite often for at least two other reasons, besides flushing drugs. I don't imagine "it sounded like he was flushing drugs" would work. A "clank" would suggest putting drugs in the tank, if the lid goes back on the drugs are placed, would not leave the drugs in plain sight. If you're coming out to say hello to the nice officer, wouldn't you finish hiding the drugs first, since the tank lid was off anyway? A story like "I saw drugs" after all that screams fabrication of reasonable grounds. Besides, aren't drugs like heroin or cocaine (can hotel clerks tell the difference?) sufficiently expensive that unless we're talking tens of thousands of dollars or merchandise, it's going to be a tiny baggie easy to hide on your person or flush quickly.

Last edited by md2000; 06-23-2016 at 05:22 PM.
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Old 06-23-2016, 06:26 PM
Loach Loach is offline
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Quote:
Originally Posted by md2000 View Post
People go into washrooms and flush toilets quite often for at least two other reasons, besides flushing drugs. I don't imagine "it sounded like he was flushing drugs" would work. A "clank" would suggest putting drugs in the tank, if the lid goes back on the drugs are placed, would not leave the drugs in plain sight. If you're coming out to say hello to the nice officer, wouldn't you finish hiding the drugs first, since the tank lid was off anyway? A story like "I saw drugs" after all that screams fabrication of reasonable grounds. Besides, aren't drugs like heroin or cocaine (can hotel clerks tell the difference?) sufficiently expensive that unless we're talking tens of thousands of dollars or merchandise, it's going to be a tiny baggie easy to hide on your person or flush quickly.
There doesn't have to be a flush. The suspect doesn't have to be in the process of destroying evidence. The officer just has to reasonably believe that evidence would be destroyed if he doesn't act and he has probable cause that the crime was committed. The Supreme Court has also maintained that for a search to be allowed under these circumstances the crime can not be "minor." There isn't an exact bright line but they've basically ruled if it is an offense that can carry a jail sentence then it is allowed. Possession of a joint wouldn't be. Possession of heroin probably would be in most jurisdictions.

In the case of this hypothetical I would say he lacks probable cause just going off of the clerks observation. Assuming a toilet flush is destroying evidence is not the problem.

I don't know about coke but heroin is ridiculously cheap right now. That's part of the reason why there is such a problem currently.

Last edited by Loach; 06-23-2016 at 06:28 PM.
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Old 06-25-2016, 09:20 AM
md2000 md2000 is offline
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Originally Posted by Loach View Post
There doesn't have to be a flush. The suspect doesn't have to be in the process of destroying evidence. The officer just has to reasonably believe that evidence would be destroyed if he doesn't act and he has probable cause that the crime was committed. The Supreme Court has also maintained that for a search to be allowed under these circumstances the crime can not be "minor." There isn't an exact bright line but they've basically ruled if it is an offense that can carry a jail sentence then it is allowed. Possession of a joint wouldn't be. Possession of heroin probably would be in most jurisdictions.

In the case of this hypothetical I would say he lacks probable cause just going off of the clerks observation. Assuming a toilet flush is destroying evidence is not the problem.

I don't know about coke but heroin is ridiculously cheap right now. That's part of the reason why there is such a problem currently.
I assume you and I are on the same page - the problem is, simply being told by a bystander like the clerk "I saw drugs" is not sufficient grounds (probable cause?) to break down a door without a warrant or push your way in without permission, flush or no flush. Possibly not even good enough to get a warrant?

I have no idea the going rate, but I assume the price of a traditional Hollywood brick-sized package of heroin is still in the hundred-thousands range?
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Old 06-25-2016, 09:56 PM
Loach Loach is offline
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Originally Posted by md2000 View Post
I assume you and I are on the same page - the problem is, simply being told by a bystander like the clerk "I saw drugs" is not sufficient grounds (probable cause?) to break down a door without a warrant or push your way in without permission, flush or no flush. Possibly not even good enough to get a warrant?

I have no idea the going rate, but I assume the price of a traditional Hollywood brick-sized package of heroin is still in the hundred-thousands range?
For a kilo? Wholesale it's about $60,000 but after cutting it you can get up to 25,000 single doses out of a kilo. So retail it's about $130,000. I what I meant by low is that you can get a single dose for about $5. It's cheaper than prescription opiates. So after someone gets hooked on the pills and no longer can afford them it often leads to heroin use. But the OP just said drugs not an amount. But really the amount doesn't matter. By going up to the door without probable cause already and then entering fearing destruction of evidence, the officer is creating the exigency. The courts frown upon that.

If the clerk saw the drugs and informed the occupants that they could no longer stay there then that could lead to a situation in which the officer has the right to enter. As long as staff makes steps towards evicting out of the room the police can be called to help remove the trespassers. If they are still in the room after being told to leave the officer can be given permission to enter by the clerk. After that the contents of the room are fair game because there is no expectation of privacy for trespassers.
  #21  
Old 07-08-2016, 12:55 PM
md2000 md2000 is offline
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Funny you should ask:
https://www.techdirt.com/articles/20...to-spare.shtml
Quote:
LCNA agents decided to do a “knock and talk” at appellant’s apartment to dispel their suspicions that his residence was being used to manufacture methamphetamine. Special Agent 88 testified that a “knock and talk” investigation is used when authorities do not have enough probable cause to obtain a search warrant. Agent 76 testified that regardless of whether anybody opened the door or not, they still intended to go inside the apartment due to “exigent circumstances.”

The supposed "exigent circumstances" was the suspicion that it was an active meth lab, thanks to the call agents received in which the caller said she "smelled something." The LCNA knock and talk received no answer (initially) and the agents smelled nothing indicating a batch of meth was currently cooking.
Where's agent 86 when you need him?

Last edited by md2000; 07-08-2016 at 12:56 PM.
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Old 07-08-2016, 02:15 PM
Loach Loach is offline
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Originally Posted by md2000 View Post
Funny you should ask:
https://www.techdirt.com/articles/20...to-spare.shtml


Where's agent 86 when you need him?
I liked Agent 99 better.

As I would have guessed the search was ruled unconstitutional.
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Old 07-08-2016, 02:21 PM
md2000 md2000 is offline
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Originally Posted by Loach View Post
I liked Agent 99 better.

As I would have guessed the search was ruled unconstitutional.
Would you believe... it was?
Quote:
A warrantless search for criminal evidence -- absent of anything supporting warrantless entry -- is a search that may as well have never taken place. The lower court's judgment is reversed, resulting in suppressed evidence and, very likely, the overturning of a conviction.
Sorry about that, chief.
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