Drug Crimes, Substance Abuse 911 Call

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I see what you are getting at, but none of these examples include the police obtaining a search warrant as soon as probable cause arises. In these examples and others I have been reading over a significant factor is that the police had ample time to get a search warrant and did not.

It seems each case has to pass a test as to whether consent was voluntary.

In this case there is no question as to the identity of the police when consent to enter is given. Having developed probable cause while inside they then obtain a search warrant. Were the police there to search for marijuana or were they investigating an unconfirmed report that marijuana might be sold there? The difference is significant. It is also significant that they did not exceed the scope of the permission voluntarily granted them without the warrant.

Had the police known of sales and had probable cause for a warrant, but rather than get the warrant ruse their way into the house to conduct a search without consent to circumvent a warrant then it is a clear problem.

It seems I am falling more in line with the dissenting opinions, but I still don't see that a ruse to gain entry will always invalidate consent. The circumstances need to be evaluated to weigh voluntariness against coercion.
 
mightymoose said:
I see what you are getting at, but none of these examples include the police obtaining a search warrant as soon as probable cause arises. In these examples and others I have been reading over a significant factor is that the police had ample time to get a search warrant and did not.
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But, if the initial entry was based upon a bogus call for assistance, then the ensuing probable cause will be bad because the officers gained consent to enter or coerced entry based upon false pretenses.

It's not about the probable cause once inside - assuming that they had a lawful right to be there. The question will be how they got inside!

The OP states that there was no 911 call. The OP states that officers used the claim of a 911 call of a domestic and their desire to check the welfare of the residents as a reason to make entry. If there was NO 911 or other emergency call and the officers were aware that no such call existed, then their entry is suspect and likely unlawful If the entry was unlawful and probable cause (the smell of marijuana - a controlled substance) was not developed until after they made entry, then the probable cause can be suppressed as it was observed where the officers would not have had a lawful right to be.

So, the existence of a 911 or other emergency call may well be the key to the state's case in showing consent or some exigency to allow the officer's entry.
 
At this point though we are only assuming its a bogus call. OP has not been back to explain or give additional details
 
True, but it got me going on the topic of a ruse. there is case law in support of and against the use of a ruse.
It seems like something that must be evaluated case by case.

A snippet from the dissenting opinion in the Krause v Commonwealth case from Kentucky that I was reading:

Persuasive authority can be found in Commonwealth v. Morrison, 275 Pa. Super. 454, 418 A.2d 1378 (1980), in which the consent to search was voluntary even though procured by police who misrepresented both identity and purpose. State v. Hastings, 119 Wash.2d 229, 830 P.2d 658 (1992), allowed warrantless entry made after consent was given as valid despite the use of a ruse; State v. Nedergard, 51 Wash.App. 304, 753 P.2d 526 (1988), held that an undercover officer's use of a ruse to enter the residence of a suspect by posing as an interested buyer responding to a for sale sign was permissible as a means of establishing probable cause for a search warrant. People v. Manieri, 373 N.Y.S. 2d 504 (1975), stated that consent of a hospital patient in a private room for entry was not vitiated as to police acting in an undercover capacity as a porter. Other cases following the same general line of the use of deception as Reese are: Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424 (1966); United States v. Caceres, 440 U.S. 741, 99 S.Ct. 1465, 59 L.Ed.2d 733 (1979); United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), and United States v. Baldwin, 621 F.2d 251 (6th Cir. 1980); Commonwealth v. Ginter, 289 Pa. Super. 9, 432 A.2d 1024 (1981). As noted earlier, the voluntariness test for analyzing consent was adopted from the cases involving coerced confessions. The mere use of a ruse or a strategic deception does not render a confession involuntary so long as the deception does not rise to the level of coercion. See Springer v. Commonwealth, 998 S.W.2d 439 (Ky. 1999) citing Illinois v. Perkins, 496 U.S. 292, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990).

When the police deception as to the purpose of the search is used in obtaining the consent to search, each case must be analyzed with regard to the surrounding circumstances. United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976).
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And if the ruse gave the resident the impression that they had no choice to object to consent, then it would almost certainly be unlawful.

I cannot imagine a circumstance where officers could lie about an emergency call , use that call as justification to compel entry, and NOT have the search suppressed. I am not saying that is what happened (I happen to believe it is probably all on the up and up) but if that were the case, it would almost certainly be tossed and the officers should be disciplined or maybe even prosecuted.
 
You won't get the "911" tape. His LAWYER can subpoena the state to produce the tape at trial. Unless you're part of the defense team,or the defendant, you won't get the tape. You'll have to wait and hear it played at trial. Doesn't matter, and isn't relevant. Why? The officers were smart, very smart. They requested a warrant. All that other nonsense has no relevance. The warrant gave them LAWFUL authority to conduct the search.

I'll bet he has a record, too. If I were his defense counsel, I'd suggest he allow me to try and cut a deal. Tell junior to get his affairs in order. He's gonna be tied up for the next few years!


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But, the probable cause for the warrant was obtained AFTER entry was made. If the ENTRY was unlawful, then the probable cause in support of the warrant will almost certainly be suppressed.

I agree that the entry and subsequent warrant are almost certainly valid. But, IF the contention that the police lied about a call to gain entry were true, then the entire case - including the dope discovered after the warrant - would likely go down in flames.
 
CdwJava said:
And if the ruse gave the resident the impression that they had no choice to object to consent, then it would almost certainly be unlawful.

I cannot imagine a circumstance where officers could lie about an emergency call , use that call as justification to compel entry, and NOT have the search suppressed. I am not saying that is what happened (I happen to believe it is probably all on the up and up) but if that were the case, it would almost certainly be tossed and the officers should be disciplined or maybe even prosecuted.
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You describe a scenario of coercion rather than one of consent. What if the police came to the door and simply requested permission to come inside and verify everyone is OK? It is quite common to do. The homeowner may refuse this request, but the officers have no obligation to inform the homeowner of that right.
If the officers present an emergency or create a false exigency then they cross into coercion.
There was clearly no emergency in this case and they were told so on arrival. They were given permission to come in anyway.
 
mightymoose said:
You describe a scenario of coercion rather than one of consent.
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Consent not freely given is NOT consent. If you gain consent by concocting a story that gives the impression that denying entry is NOT an option, then it is NOT consent, pure and simple.

What if the police came to the door and simply requested permission to come inside and verify everyone is OK?
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Probably just fine.

However, the OP stated the following: "They said they had a domestic call wanted to come in make sure his family was safe." It is likely that if there was no domestic call, then this would be a ruse - potentially an unlawful one. But, as is usually the case when we respond to domestics, we don't really give the resident much of an option to say "no," so it is likely that the officers stated they were responding to a domestic and were going to check on everyone thus indicating that refusing was not an option. Certainly, I'm speculating, but I'm speculating on more than two decades first hand experience.

If the officers present an emergency or create a false exigency then they cross into coercion.
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And should be disciplined and could possibly be prosecuted.

There was clearly no emergency in this case and they were told so on arrival. They were given permission to come in anyway.
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Maybe. But, I repeat, if the officers fabricated the existence of an emergency call in order to bluster the way inside (via deception or coercion) then the entry will almost certainly be tossed. If the entry is tossed, the probable cause (the smell of marijuana) would similarly be tossed and no trial would ensue.

I certainly hope no one here is advocating that the police should lie, bluster, and fabricate cause to enter a residence just because. This would be both unethical and unlawful.
 
From the OP's info I am not under the impression the police were forceful or coerced permission to enter. It sounds as if, having found no emergency (concocted or not), they requested permission to enter and check the welfare of the occupants which was granted. The homeowner could have said no. The officers would just have to be smart enough to not force the matter.

If they behaved like brutes as you describe then there are problems throughout. If they came calm and casual like a simple knock and talk and said "May we please come in and check?" as any professional with manners would do then their consent is good.

I see that as a real possibility because they had the sense to stop and get the warrant.

I suspect a ruse likely was used. An officer that smelled marijuana when checking a 911 call would not likely go to such lengths unless a larger amount or sales was suspected and there would be no way to tell that by smell alone. The ruse to gain entry was likely to confirm the presence of marijuana on a tip. Having remained within the scope of the permission granted I would expect their bust to be solid.
 
CdwJava said:
I certainly hope no one here is advocating that the police should lie, bluster, and fabricate cause to enter a residence just because. This would be both unethical and unlawful.
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It would depend on the circumstances. Such fibs are not any more unethical than those used to lawfully obtain confessions. They may not be the best tool in the box, but they do work if used correctly.
 
If there is fabrication occurring, I don't think it's being done by these officers. I've noticed that many posters come on here looking for a certain answer. I don't know why, but many alter the story they tell to get they answer they want to hear.

I've seen what Professor Dershowitz calls "testilying"!

It doesn't happen often. I can't recall seeing IT where officers tread the right path and obtained a warrant.

Why? Because, these warrants that issue under certain exigent or emergent circumstances require a duty DA. The duty DA investigates, and contacts a duty judge or magistrate. I've issued these warrants as a duty magistrate. I often rely on my knowledge and relationship with the duty DA. Some, I'll question thoroughly, others I'll accept their representation. Bottom line, I'm putting my money on the professionalism of these fine officers and the duty DA involved. I'll accept their representation of these events. These search warrants aren't obtained like gum balls.


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You two and OP are assuming Law enforcement smelled pot after entry. You two both know well that pot smell is very strong and would likely be smelled from doorway. The Officer(s) might had sought warrant for their own protection rather than just search using "probable cause" as reason.
 
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