This doesn’t sound like it should hold up in court but I just watch a netflix episode of Heist where this apparently happened…(?)
Episode 5 and 6. Barrels of bourbon are being stolen out of Buffalo Trace distillery in Kentucky. Police get a tip, then drive to the person of interet’s place, but can’t see anything. Then they walk onto the property, and find barrels of bourbon. Armed with this information, they go get a search warrant and search his home and place, eventually leading to an arrest and conviction.
It doesn’t seem correct that the police can walk onto your property without a warrant, because they can’t see what they are looking for, only to find it after they enter to property…finding evidence to lead to a search warrant and arrest.
Is this legal? or not? (I recognize that liberties may have been taken with the show, but apparently the police officers interviewed for the show said that’s what they did.)
I don’t know anything about the show, but police can generally enter property. They can’t enter into a house, and they usually can’t cross a fence or gate or other posted no trespassing signs.
But if it’s just property, and they can see the contraband from where they are, then they can use that as evidence to further an investigation.
For example, they don’t need a warrant to enter your property to walk up to your front door to knock on it. If you have a fenced back yard, they would generally need a warrant to enter it. But if they can see over the fence, then what they see is fair game.
“Fruit of a poisonous tree” is the legal doctrine that (in principle) prevents the use of illicitly obtained information to for the basis for a search warrant; to wit, information obtained through means that were in excess of what police officers or other officers of the court could have reasonably discovered in the process of their normal observation is not admissible evidence to justify issuance of a search warrant, and any warrant found post hoc to be issued on such a basis would be nullified as would any evidence uncovered through the application of that warrant in absence of any other reasonable avenue of discovery.
There are numerous ‘loopholes’ in this doctrine, foremost among them being information that was revealed by a source that is not associated with law enforcement or the court. Another is evidence uncovered through the enforcement of another unrelated violation; for instance, if a police officer pulls you over for a stop because your taillight was ‘fluttering’, and then institutes a drug search based upon his perception of an aroma of a prohibited substance which is validated by a drug-sniffing K9 unit, and then opens your trunk to find a cache of pirated DVDs (yes, this hypothetical scenario is firmly rooted in the mid-‘Nineties), the evidence of the latter is admissible through validating the search due to the former. Evidence that is “in plain view” is open game, although what comprises that definition has been subject to debate. The informed reader can concoct an endless number of scenarios that would justify a search based upon virtually any pretense (drugs are a favorite because “War on Drugs” but the creative mind can come up with many alternatives) but once evidence is admitted under warrant it becomes incumbent upon the defense to demonstrate that it is not actually admissible, which is not nearly as easy as it might seem on Law & Order. (Again, our hypothetical is set in the ‘Nineties when Sam Waterson and Carey Lowell were facing this problem in about one episode out of three.)
In general, once evidence is admitted, getting it thrown out is nigh on impossible and it goes to appeal to reject the conviction. This is why you should never acquiesce to an unwarranted search of your property or to questioning without having your lawyer present, and in the case of a warrant you should read the terms of the warrant and be prepared to object to searches that go beyond the scope as stated. @Moriarty can, I’m certain, provide more practical guidance and anecdota based upon real experience.
I don’t know what they showed in the series - but according to this
what actually happened was that the
Sheriff’s officers went to Curtsinger’s home but no one responded. The officers returned to a public access road that ran to wooded land next to his property.
“No paths, fences or ‘no trespass’ signs appeared in the woods,” Wingate said. “The officers never left the forested area to cross onto the mowed, grassy area surrounding the residence until they obtained a search warrant to search the property.
“From their vantage point in the woods, the officers observed what they believed to be bourbon barrels visible under plastic tarps behind an outbuilding on the property.”
and got the warrant based on what they observed from the woods ( and presumably also the tip), which may have been his property, but wasn’t fenced or mowed or posted.
Depends on whether they had a right to walk onto the property.
If they did, and based on that access they were able to observe the evidence necessary to get the warrant, then it’s legal.
But if they trespassed by entering the property, then they had no legal right to get the information necessary to obtain the warrant.
So, did they hop the fence? Or just walk up to the front door and knock? Or something in between?
(The question may arise as to ‘why’ the cops entered the property. Pretend they were acting on a hunch, but walked up to the door and knocked to speak with the homeowner under the ruse that they are just “introducing themselves to the neighborhood’. That’s legally ok - cops can initiate an encounter based on a pretext that is unrelated to their true purpose. This often comes up when cops are stopping a car that they expect has drugs in it - the cops will often follow the person around until they see some very minor traffic violation, and then quickly go from a traffic stop to a drug investigation. That’s permissible, even if the traffic infraction was just an excuse to do the more extensive criminal investigation).
Agreed, with one caveat.
While police can pull you over for a traffic violation when they actually want to do a more invasive investigation, they can’t hold you for longer than the traffic stop would normally take unless during that time period they find evidence that justifies further investigation. So, they can’t make you wait 40 minutes for the fluttering tail light ticket so the drug dog (or the officer who can smell the drugs) can get there; the dog’s search or the officer’s smell needs to be done while the traffic stop is being processed. (Of course, once the dog indicates, the traffic stop is now a criminal case, and so you’re going to be there for however long it takes. Also, the law will generally allow for a ‘reasonable’ amount of time for backup (I.e. the K-9 unit) to arrive, even for the most mundane ticket).
I once had a case where a woman picked her young kids up late from daycare. She was pretty wrecked when she arrived, and left in a huff, so the school called police, who went to her house to see what was going on.
When they arrived, the client was passed out in her bed, and nobody answered the door. Cops were concerned about the welfare of the children, so they opened a gate and went into her backyard to peer into the house.
They claimed that they were able to look through the back sliding door and saw into the kitchen, where they claimed a stove burner was turned on.
On that basis (“it was an emergency!”) they entered the house, corralled the kids, and arrested the woman in her bedroom (truly humiliating, as she had removed her full blonde wig, and was bald in addition to being hammered). The charge related to child endangerment.
We defended the case by arguing that the police had no right to breach the gate and enter into the yard to look into the home. And since it wasn’t until they were there and looking that they discovered their ‘emergency’, it was not a lawful reason to enter the home.
Up to that point, they were acting on a mere hunch.
(As I write this, I’m reminded that this wasn’t a warrant case, but even if the police had sought a warrant the issue remains - you can’t base a legal search on being in a place you have no lawful reasons to be).
(How did her case resolve? Like most, with a plea. She ended up getting into rehab).
Another thought regarding warrants:
If you challenge one, you have an additional obligation to explain how suppressing the evidence will deter the cops from future illegal conduct. The ability of cops to claim that they were acting in ‘good faith’ (say, the police do walk up to your door to knock, and totally didn’t see the “No Soliciting/Trespassing Sign”) undermines many of these arguments.
So, you may be able to show a violation of your rights but you may still lose the request to suppress the evidence.
As is so often the case, what is alluded to in the media is not what happens in real life.
From your link, I also note that:
“The defendant’s reasonable expectation of privacy was not violated because officers observed, in plain-view, bourbon barrels on the defendant’s property from an open field in which the defendant had no claim of privacy,” the judge said.
So while not clear, it doesn’t look like they entered his property. Either that or the field was his property and he didn’t take steps to keep the barrels from plain view.
Motor vehicles should be looked at separately. The court recognizes that the fact you can drive a car away makes it different if than other kinds of property and requires exceptions to the warrant requirement.
Evidence can be legally obtained without a warrant for some of the reasons stated previously. Finding that evidence does not mean there is no need for a search warrant to continue. Lets say an officer is called to a residence for a domestic dispute. While investigating the dispute they see a kilo of coke in plain view. They had the right to enter the residence to investigate the domestic dispute. The contraband in plain view can be seized with no need for a search warrant. That does not mean a search can continue past what is in plain view. If they want to search further for more drugs or illegal activity a search warrant would be needed.
As I recall, there was a case (FBI tracking “terror suspect”) where the courts threw out a GPS tracker data because the agents had trespassed on the suspect’s property when installing the tracker. (They later threatened to arrest him for theft if he did not return their missing tracker… America’s finest.)
Another case regarded a judge throwing out parking tickets because chalking a car’s tires was trespass on the defendant’s property. Yes, the car is in plain view, but altering the person’s car is not allowed.
It seems the police can do what any normal citizen can do - i.e. walk up to the front door and knock, or see what they can see from off the property. But they can’t go snooping where you have a reasonable expectation of privacy, like going around and looking in you back windows, or opening doors, etc.
Also note that drug dogs are notoriously unreliable - some judges have refused to entertain evidence that drug dogs are rarely better than random at getting results, and may instead also respond to cues from their handler, much like Hans the Clever Horse’s math tricks.
As has been discussed in other threads, the warrant matters. If the warrant says “look for firearms” for example, the search cannot include opening folders in the file cabinet to read the contents since they could not possibly contain firearms.
“Plain sight” and “exigent circumstances” and “hot pursuit” are examples that crop up in Law & Oder (our go-to legal guide) for reasons why evidence may be obtained without a warrant. Plain sight is obvious - the cop has a reason to be there and the evidence was obvious. Exigent circumstnces - for example, “we were knocking on the door and heard a cry for help.” Or gunshots. Or a scream… There appears to be an emergency that cannot wait for the warrant route to be satisfied. (But be prepared to explain it to the satisfaction of the judge). Hot pursuit - agian, obvious, but be prepared to explain in court why the pursuit was necessary. IIRC, someone LEO can explain better, but there has to have been an immediate crime in progress? I assume running from police is ground, but only if you had a reason to arrest the person?
But for the OP title - I assume no judge will sign off on a warrant if they know the police had already done a search and now were trying to make valid some invalid evidence.
It is established enough to be called the Hot Pursuit Doctrine. The main case that lays out what constitutes the Hot Pursuit Doctrine is United States v Santana.
Loach, you’re in NJ yes? I was told some years ago by a NJ based ADA that during a traffic stop, if an officer smells marijuana, that would be cause for a full search of the vehicle. MJ was illegal at the time.
This was in relation to the Gov planning to legalize marijuana, which the ADA thought would be bad precisely because it would prevent these searches, and the various crimes, drugs, guns uncovered by them would go undiscovered.
Now that MJ is legal here, was she correct that police are no longer allowed to make searches based on smelling marijuana during the stop, or was this whole set of comments wrong from the beginning?
Pretty sure that is in any jurisdiction where if a cop wants to search your car, “Sniff sniff. I smell alcohol.” and the courts say it’s legal even if no alcohol is ever found.
The odor of marijuana may no longer be used a s a basis for probable cause or reasonable suspicion. This, according to the NJ Attorney General. In order for something to constitute P/C, there has to be an offense that is suspected. Possession (less than 6 oz.) and use of weed is no longer an offense in the Garden State. The law is still evolving and will be for quite a while, IMHO.
Alcohol isn’t illegal. You can’t search a car because you smell alcohol. It can be part of the articulable suspicion that leads to field sobriety tests. A search for intoxicants can happen without a warrant but only as a search incident to arrest for DWI
Right as Mike said since MJ is legal its smell can’t be used as PC for a search. Like the smell of alcohol it can be used as part of the articulable suspicion for field sobriety tests.
Since MJ has been legalized I haven’t dealt with any roadside vehicle searches. So your ADA friend is correct.
Before legalization things changed several times. States can be more restrictive than federal precedent but not less restrictive. It’s SCOTUS caselaw that “plain smell” can be used as PC for a vehicle search (this is only for the motor vehicle exception). NJ was in line with that for a while. Several years ago there was a state case which stated if there was a smell of marijuana a search warrant was needed. For about a year I think we were seizing cars to apply for search warrants. Then a new case came out reversing it. The speculation was the judges let it be known they were sick of hearing all the search warrant applications. Getting a search warrant is much more tedious than on tv.
Would you mind expanding on this? I would think it trivially easy to explain why suppressing evidence that violates one’s rights is a deterrence to future misbehavior.
Didn’t see the “No Trespassing” sign? That’s either reasonable (the sign was obscured by tall grass) or it’s not (the sign is displayed with reasonable prominence—IOW, it needn’t have flashing lights, it’s in plain view, large block letters, next to the walkway, etc.)
I have nothing of substance to add, but I want to be the first person in this thread to mention “curtilage”. (Which is the area immediately surrounding a house, and cannot be searched without a warrant, just like the house itself.)
Officer Judy Hopps wants to gain access to Mr. Big’s parking lot containing limousines but doesn’t have a warrant. She throws the recording pen over the fence and Nick Wilde climbs over to get it, with Judy burrowing under right away.
“The thing is… You don’t need a warrant if you have probable cause, and I’m pretty sure I saw a sneaky fox climbing over the fence.”