Great responses! Here's our answer to this question...
Some of the writers stated that you can make entry to the residence due exigent circumstances. Case law has upheld that entry can be made if you believe that probable cause exists that evidence is being destroyed. However, that is not the case in this instance. You get a party call when you arrive, there is a person climbing up to the second floor. Suspicious but not a crime being committed in your presents, definitely grounds for (Reasonable Articulable Suspicion) to stop that subject. However, once you arrive, you find the subject is already inside of the residence, apparently invited because he is sitting around a bong with several other people. There is no signs of forced entry. So, the exigency does not exist to force entry. While you see a bong, one of the writers is correct, there is no evidence that CDS is contained within that bong and courts have ruled that a suspected misdemeanor drug offense is not grounds for a warrant-less search of a residence. So, you are left with the option of knocking on the door. If the persons inside the residence choose not to answer the door, you've exhausted your access to that residence. If the subjects answer the door and you detect marijuana then you have a lawful right to detain all persons inside the residence and get a search warrant for that residence, which is the safest approach because not only can you seize what is in plain view, but if the warrant is articulated correctly, search everywhere that CDS can fit (which is pretty much everywhere). However, you have to weigh the option of obtaining a warrant with the likely hood of finding a large amount of CDS in the residence which would be the object of the search warrant. Otherwise, it's a waste of time.
This was an actual situation. How the officer chose to handle this call was she stood at the picture window and motioned for a person, who now had the "Oh shit" look on their face, to come to the door, which they did. Once the door opened she detected the odor of marijuana but stayed outside of the threshold of the residence. She asked one of the subjects to approach the door, which they did. She asked them what was in the bong and they stated "Tobacco". She asked to see the bong, which they provided, and made the appropriate arrest in the threshold of the doorway. This situation was somewhat overkill on the part of the officer in protection of search and seizure law, but turned out the subjects were cooperative. At the point she detected the marijuana by scent she could have entered the residence. Courts have also ruled that there is no difference between a trained narcotics dog detecting marijuana and a human being. The dog's senses are just more acute. However, a trained human (police officer) has the same credibility in court.
The threshold is an important part of a right to search a residence because once you break that threshold, if conducting a warrant-less illegal search, everything you may find inside of the residence is fruits of the poisoned tree (suppressible in court). Therefore, it is important to decide how to proceed.
Thanks for participating! We will pose another question today! WE WOULD LOVE TO HAVE OUR ASSISTANT STATES ATTORNEYS CHIME IN ON OUR ANSWER! You are free to print this and take this to your roll call training!
Some of the writers stated that you can make entry to the residence due exigent circumstances. Case law has upheld that entry can be made if you believe that probable cause exists that evidence is being destroyed. However, that is not the case in this instance. You get a party call when you arrive, there is a person climbing up to the second floor. Suspicious but not a crime being committed in your presents, definitely grounds for (Reasonable Articulable Suspicion) to stop that subject. However, once you arrive, you find the subject is already inside of the residence, apparently invited because he is sitting around a bong with several other people. There is no signs of forced entry. So, the exigency does not exist to force entry. While you see a bong, one of the writers is correct, there is no evidence that CDS is contained within that bong and courts have ruled that a suspected misdemeanor drug offense is not grounds for a warrant-less search of a residence. So, you are left with the option of knocking on the door. If the persons inside the residence choose not to answer the door, you've exhausted your access to that residence. If the subjects answer the door and you detect marijuana then you have a lawful right to detain all persons inside the residence and get a search warrant for that residence, which is the safest approach because not only can you seize what is in plain view, but if the warrant is articulated correctly, search everywhere that CDS can fit (which is pretty much everywhere). However, you have to weigh the option of obtaining a warrant with the likely hood of finding a large amount of CDS in the residence which would be the object of the search warrant. Otherwise, it's a waste of time.
This was an actual situation. How the officer chose to handle this call was she stood at the picture window and motioned for a person, who now had the "Oh shit" look on their face, to come to the door, which they did. Once the door opened she detected the odor of marijuana but stayed outside of the threshold of the residence. She asked one of the subjects to approach the door, which they did. She asked them what was in the bong and they stated "Tobacco". She asked to see the bong, which they provided, and made the appropriate arrest in the threshold of the doorway. This situation was somewhat overkill on the part of the officer in protection of search and seizure law, but turned out the subjects were cooperative. At the point she detected the marijuana by scent she could have entered the residence. Courts have also ruled that there is no difference between a trained narcotics dog detecting marijuana and a human being. The dog's senses are just more acute. However, a trained human (police officer) has the same credibility in court.
The threshold is an important part of a right to search a residence because once you break that threshold, if conducting a warrant-less illegal search, everything you may find inside of the residence is fruits of the poisoned tree (suppressible in court). Therefore, it is important to decide how to proceed.
Thanks for participating! We will pose another question today! WE WOULD LOVE TO HAVE OUR ASSISTANT STATES ATTORNEYS CHIME IN ON OUR ANSWER! You are free to print this and take this to your roll call training!
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