A friend of my was recently arrested in Virginia for the manufacture of marijuana(VA 18.2-248.1) however the circumstances in which the arrest was made seemed to me to be in violation of the fourth amendment however I am not a lawyer myself so I thought to ask the greater legal community. The events leading to his arrest are as follows: On November 25th the police were called in relation to a break in where a suspect had entered through a ground floor window and stolen items from students that had been out on Thanksgiving break at an appartment complex. While on foot patrol of the complex the officer noticed an open bedroom window(bedroom of the defendent). This window was cracked open approximately 6 inches and had a metal bar securing it from opening any farther. There was also an opaque curtain covering the window to ensure no one could see inside. For some reason there was a screwdriver laying on the window ledge and the police officer noted cracked plaster. The defendent is a handy man of sorts and regularly leaves tools laying around. The defendant was unaware of any cracked plaster however the building is old and it would not be uncomprehensible for plaster to be on the window ledge. In any event the officer checked that all of the other entrances were locked and then proceded to crawling through the cracked window. It is not known to the defendant how the officer removed the metal bar securing the window from opening farther. A "protective sweep" was then made by the officer and during the course of this "protective sweep" the officer noted a closet had been modified with a hardboard wall, and a hinged door, with aluminum foil and air vents protruding from it. The sound of forced air was heard and an odor similiar to the smell of marijuana pipe water(bong water) filled the air.(the defendant as well as his roomates informed me that no smell was ever present in the room as a special filtering device was in place to cancel the smell of marijuana). The officer then peeked through a crack in the door to ensure that no perpetrators were present and witnessed what looked to be marijuana plants inside. This door was locked from the outside with a combination lock and from no way could be accessed from the inside of the closet. The officer found no suspects within the house nor any of its inhabitents as they were all away for thanksgiving. The Officer then exited through the bedroom window. This was all done without the procurement of a search warrant nor was the officer in "hot pursuit" of any suspect. This was all stated in the officers affidavit and a search warrant was granted which was served later that evening and evidence was found to warrant the arrest of the defendant. From my reading of MARYLAND v. BUIE, 494 U.S. 325 (1990) I found that the Fourth Amendment permits a properly limited protective sweep in conjunction with an in-home arrest when the searching officer possesses a reasonable belief based on specific and articulable facts that the area to be swept harbors an individual posing a danger to those on the arrest scene. Michigan v. Long, 463 U.S. 1032, 1049 -1050; Terry v. Ohio, 392 U.S. 1, 21 . A "protective sweep" is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. Officers conducting such a sweep must have a reasonable basis for believing that their search will reduce the danger of harm to themselves or of violent interference with their mission; in short, the search must be protective. So basically from my understanding a protective sweep would be something that takes place say if someone was arrested in the living room the police could search the rest of the house in order to ensure they are not in any danger. This would obviously not apply to this situation as the break-in occured in a seperate appartment(most probably in a seperate building although we have yet to find out the exact location of this break in). The officer in fact put himself in more danger by entering an unrelated appartment. So from this i found:Search warrant tainted by prior unlawful police conduct
Often the unlawful police conduct takes place before the warrant is secured, and forms a part of the probable cause for the warrant. For example, where the fruit of a prior unlawful trespass, unlawful search, unlawful arrest, or a coerced (invalid) consent is included in a search warrant affidavit, the offending information must be removed, and the remaining information examined to determine whether it still establishes probable cause. Wong Sun v. United States, 371 U.S. 471, 484-85, 9 L.Ed.2d 441, 83 S.Ct. 407 (1963); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 64 L.Ed. 319, 40 S.Ct. 182 (1920); State v. Maxwell, 114 Wn.2d 761, 769, 791 P.2d 223 (1990). This argument is particularly useful where evidence offered in support of the warrant request is the result of a trespass, see State v. Petty, 48 Wn. App. 615 (1987), or other unlawful conduct.
The above would then instate the exclusionary rule and all of the evidence would be suppressed correct? Thanks, Matthew.
Often the unlawful police conduct takes place before the warrant is secured, and forms a part of the probable cause for the warrant. For example, where the fruit of a prior unlawful trespass, unlawful search, unlawful arrest, or a coerced (invalid) consent is included in a search warrant affidavit, the offending information must be removed, and the remaining information examined to determine whether it still establishes probable cause. Wong Sun v. United States, 371 U.S. 471, 484-85, 9 L.Ed.2d 441, 83 S.Ct. 407 (1963); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 64 L.Ed. 319, 40 S.Ct. 182 (1920); State v. Maxwell, 114 Wn.2d 761, 769, 791 P.2d 223 (1990). This argument is particularly useful where evidence offered in support of the warrant request is the result of a trespass, see State v. Petty, 48 Wn. App. 615 (1987), or other unlawful conduct.
The above would then instate the exclusionary rule and all of the evidence would be suppressed correct? Thanks, Matthew.
