Drug Crimes, Substance Abuse 911 Call

[Boknows93]

They arrested my son for selling marijuana came to his hus for a 911 call. But as entering his hus they wanted to search.. We are waiting on 911 tape to see if they was a call or jus a way to enter hus is that illegal

 

[CdwJava]

That's interesting, but is there a question?

What was the nature of the 911 call they were responding to? Did anyone answer the door when they knocked? Were the police denied entry? Did the police force entry? A few more details might be useful ... unless, of course, you have no question.

 

[Boknows93]

They said they had a domestic call wanted to come in make sure his family was safe. Thn they smelled weed thn wanted to search he did not let thm they went git search warrent. Found sum weed but they was there for 911me call

 

[shrinkmaster]

If they smelled weed they likely had probable cause to search

 

[CdwJava]

He should probably contact an attorney ASAP if he has not already done so.

If they were responding to a 911 call and had reason to believe there was a disturbance, they might be able to argue a need to make entry in order to see that all parties in the home were okay - particularly if the caller and all other occupants did not meet the police at the door.

Once inside and after they smelled marijuana, that gave cause to search further. But, since he declined consent they apparently went and did the right thing and got a search warrant. It doesn't look good for him.

 

[Boknows93]

Thats the thing no one there called they cnt produce 911 tape.

 

[CdwJava]

Thats the thing no one there called they cnt produce 911 tape.

If they cannot show that a 911 call was made, then there might be problems.

But, did they say the call came in through 911? (That would be stupid to lie about as 911 calls are easy to track) Or, did they say they received an emergency call, or a report of a disturbance there? The call might have come through a non-emergency line, or even been transferred from the state police (or whoever received cellular 911 calls in your state). Such calls would not be on the local agency's 911 record.

If responding officers were bluffing about a 911 call, they would have to be true idiots as that could easily have been traced, and such a ruse would tend to invalidate any consent or probable cause to make entry in the first place.

Let his attorney do his job and look into the matter. I suspect they have something ... or, the cops where he lives are true idiots and I hope there are some firings, at the very least.

 

[mightymoose]

911 is not very relevant here. Regardless of the reason they came to the house it sounds as if consent was given for them to enter and check on everyone.
Once inside they smelled the weed. Permission to search for the marijuana was denied so they obtained a search warrant.
It all seems very legitimate.

You should know that police are routinely dispatched to 911 calls that nobody made. The system is buggy and most calls that come in are hangups from a malfunctioning line. Police still have to respond and check just in case.
However, maybe a neighbor or other witness heard a disturbance and called 911 and gave some information? You may not likely get any information about the call until the matter gets to court.

All that said, it is entirely possible that the 911 call was a ruse. Perhaps the police had information that something was going on there. They may not havehad enough for a search warrant, but once they were given consent to enter on the 911 ruse they had all they needed.

It would have been perfectly acceptable to deny them entry into the house.

It seems that unless they forced entry, or unless someone spoke up and demanded they leave, that their actions are justifiable.

 

[CdwJava]

911 is not very relevant here. Regardless of the reason they came to the house it sounds as if consent was given for them to enter and check on everyone.

It could be very relevant. If they utilized a ruse (i.e. a lie) to gain consent, then the consent can be tossed. However, since the limitations of a ruse might be established by state and federal circuit case law, it might be an acceptable ruse to some degree in the OP's state- it would not be in CA. At least one federal case held that lying about a warrant was sufficient to effectively deny someone the right to consent to a search, and that case has been cited in CA and 9th Circuit rulings on similar ruses (Bumper (1968) 391 U.S. 543.). VA may allow such ruses ... and the defense will likely make the appropriate motion to dismiss if a ruse was utilized in order to gain consent or force entry.

Many people seem to assume that any police response is as a result of a 911 call, and most are not. Plus, what the responding officer(s) believed they knew about the source of the call may be different than how it actually came in so there might be a good faith exception to the entry.

In all honesty, we lack any pertinent details so making an education evaluation of the entry is nearly impossible without wild speculation.

 

[mightymoose]

If responding officers were bluffing about a 911 call, they would have to be true idiots as that could easily have been traced, and such a ruse would tend to invalidate any consent or probable cause to make entry in the first place.

I believe this sort of knock and talk ruse has repeatedly been upheld by courts as legal. The officers in this case did well to stop and get a warrant before proceeding with the marijuana search.

 

[mightymoose]

At least one federal case held that lying about a warrant was sufficient to effectively deny someone the right to consent to a search, and that case has been cited in CA and 9th Circuit rulings on similar ruses (Bumper (1968) 391 U.S. 543.).

Lying about having a warrant is very different. The ruse in this case does not go to that extreme in which the homeowner would not have a right to refuse.

And yes you are right, we are speculating. There very well may have been a legit 911 call, even if it was a hangup/malfunction as so many are.

 

[CdwJava]

I believe this sort of knock and talk ruse has repeatedly been upheld by courts as legal. The officers in this case did well to stop and get a warrant before proceeding with the marijuana search.

Knock and talk, sure. LYING (a ruse) about why you are there and using that reason to gain consent or fake probable cause, no. Not in CA, anyway.

Because the officers in this scenario halted and waited for a warrant, I would tend to think they had initially acted on a valid call or other contact. If they had utilized a ruse to gain entry, or simply forced their way in, then there is little reason to believe that they would not have continued in their bluff and bluster. if they were willing to lie to get in, why not lie to say they had consent to search?

I suspect that in the long run the entry and search will be upheld. But, as we don't know the details, it's impossible to really say.

 

[CdwJava]

Lying about having a warrant is very different. The ruse in this case does not go to that extreme in which the homeowner would not have a right to refuse.

The issue of a ruse appears to be state specific. There is ample CA case law and some 9th circuit case law on the issue for us out here, but not all that much on point by the USSC.

CPOLS covers it well - with examples - if you have access to that at the office.

And yes you are right, we are speculating. There very well may have been a legit 911 call, even if it was a hangup/malfunction as so many are.

Yep. When a cellular 911 call gets transferred from CHP it still is referred to as a 911 call, even though it would come into our dispatch center on another line - sometimes and unrecorded line.

 

[mightymoose]

A knock and talk ruse can still be valid in CA. It just depends greatly on how voluntary the consent is in regard to the ruse. A ruse such as this asking for consent to check the safetyof occupants would not be illegal.

Probable cause regarding the marijuana developed once inside the home. Permission to continue to search was denied and a search warrant obtained. I believe those circumstances would hold up in CA.

Had the officers continued to search for marijuana based only upon the consent gained by their ruse to check the welfare of the occupants then there would be problems.

There is nothing that comes to mind that indicates this scenario would not be valid anywhere. Surely the laws are still evolving on this topic.

 

[CdwJava]

A knock and talk ruse can still be valid in CA. It just depends greatly on how voluntary the consent is in regard to the ruse. A ruse such as this asking for consent to check the safetyof occupants would not be illegal.

And that would not be a ruse. If I received a call of a disturbance, and I asked to check on the wellbeing of the occupants, that would not be deceptive, it would be honest. If I dod NOT receive such a call, THEN it would be a ruse and very likely unlawful.

Probable cause regarding the marijuana developed once inside the home. Permission to continue to search was denied and a search warrant obtained. I believe those circumstances would hold up in CA.

Had the officers continued to search for marijuana based only upon the consent gained by their ruse to check the welfare of the occupants then there would be problems.

Agreed.

There is nothing that comes to mind that indicates this scenario would not be valid anywhere. Surely the laws are still evolving on this topic.

If there was no call (911 or otherwise) and the responding officers characterized their presence and reason to make entry as being based upon said call (a knowing lie), then there would almost certainly be a HUGE problem.

 

[mightymoose]

If there was no call (911 or otherwise) and the responding officers characterized their presence and reason to make entry as being based upon said call (a knowing lie), then there would almost certainly be a HUGE problem.

I don't believe so. This is actually somewhat common.
A ruse may not have been used in this case, but if such a 911 ruse was used to gain consent to enter and check the welfare of occupants that is not illegal so long as the consent was given voluntarily and the officers do not force their way in. The occupants have the right to refuse entry to the officer under these circumstances.
Once consent was given to enter the officers make observations and develop probable cause regarding the marijuana. If they proceed to search for marijuana based on the consent to enter to check the welfare then they have problems because they did not have a consent to "search".
In this scenario, even with the ruse, their entry would be quite valid as it was consensual. Having obtained a warrant to proceed to search for marijuana their subsequent seizure of evidence would hold as well.
Had the officers made entry and not seen or smelled anything to develop probable cause they would have had to leave empty handed.
If this person was known to be selling from this house such a ruse to confirm the presence of marijuana would be very practical.
Where a ruse can go wrong is when it seemingly denies a person an opportunity to refuse consent.
The case law that I am aware of on the topic has more to do with creating a ruse to make a warrantless arrest for which the circumstances are quite different. In this case it is a ruse to gain consent to enter a residence, after which probable cause arises to investigate further- and a very key factor is that they did in fact obtain a warrant to search.

I've been looking since this topic came up... I can't find anything yet that really addresses the circumstances here. Perhaps it is a grey area, but nothing seems to outright forbid it.

 

[mightymoose]

Krause v Commonwealth out of Kentucky is a good read (the Supreme court ruling, particularly the dissent so far as I am concerned) and has multiple references regarding the use of a ruse, most of which were found to invalidate consent.
Each of them addresses an issue in which a warrantless search or arrest was made. It seems to me that because the police in the OP's case did stop to obtain a warrant as soon as they had probable cause and consent to search was denied that there was no search/seizure violation. Consent was given to enter, plain view observations made, consent to search further denied, and lawfully obtained search warrant to proceed- seems reasonable.

I'm not finding any case law specific to Virginia.

I'm not finding anything very relevant to the circumstances in CA either, just the usual Ramey related stuff.

 

[CdwJava]

As I mentioned, review the California Peace Officer legal Sourcebook - it's all there as it regards CA.

Some scattered cases and comments relevant to CA:

You may enter premises to make a warrantless arrest if a valid consent is obtained. (Escudero (1979) 23 Cal.3d 800; Wilkins (1993) 14 Cal.App.4th 761, 772-773.) However, a consent may be invalid for several reasons. For example, consent may be "coerced" (involuntary) if you obtain it through exerting your authority (e.g., pulling a gun, forcing your way in, or telling the suspect he has no choice) or by "tricking" the suspect by misrepresenting your true purpose.

A consent will be considered "coerced" (involuntary) if you lie about your true purpose for entering.

Example: You simply ask for and receive permission to "come in." This should be a valid consent since you have not stated any purpose at all, i.e., you haven't misrepresented your purpose. (Timothy E. (1979) 99 Cal.App.3d 349.)

Example: You ask for permission to enter "to talk to" the suspect. Inside, you immediately arrest the suspect. This will be considered a bad entry because of your misrepresentation of purpose. You said your purpose was to "talk," i.e., investigate further, whereas your true purpose was to arrest. (Kenner (1977) 73 Cal.App.3d 65; Johnny V. (1978) 85 Cal.App.3d 120.)

However, you must remember that no matter which of these justifications explains your presence in the building, the doctrine of "plain view" does not expand that justification. (Meyers (1979) 25 Cal.3d 67; Williams (1988) 198 Cal.App.3d 873.) Also, if you are lawfully inside the premises because of "consent," that consent must be valid. If the consent to enter or search was given in response to your assertion of authority (coercion) or because you misrepresented your purpose (trick or ruse), it is invalid, and seeing something in plain view inside does not remedy the situation.

You may use a false name or employ some other trick or ruse to obtain consent to enter if you already have a judicially authorized right to enter, e.g., a search warrant. (McCarter (1981) 117 Cal.App.3d 894; Michaud (9th Cir. 2001) 268 F.3d 728, 733.)

If you obtain consent to enter by "trick, ruse or subterfuge," the consent will be considered involuntary, at least if you misrepresent your authority or purpose.

(1) Misrepresenting Your Authority

If you falsely state that you have a warrant when you do not, any consent you obtain will be invalid. "When a law enforcement officer claims authority to search a home under warrant, he announces in effect that the occupant has no right to resist the search." (Bumper (1968) 391 U.S. 543.) Such statements, when untrue, will render consent involuntary and result in the suppression of evidence discovered. (Lane (1969) 271 Cal.App.2d 821.)

(2) Misrepresenting Your Purpose

If you tell the consenter that you want to enter for "X" purpose when your true purpose is to "search" (e.g., look for narcotics, stolen property, etc.), any consent you obtain will be ruled involuntary.

Example: Undercover officers set up surveillance in an unoccupied apartment next door to a suspected dope dealer. One officer went to the suspect's door, knocked, and asked if he could come in to make a phone call. Once inside, the officer made the phone call, but also observed narcotics and elicited incriminating remarks from the suspect which were then used to obtain a search warrant. The court suppressed the evidence because the consent to enter was involuntary. The officer had misrepresented his purpose as being to use the phone, whereas his true purpose was to look for narcotics. (Lathrop (1979) 99 Cal.App.3d 967.)

Example: A refrigerator repairman observed marijuana in a home and phoned the police. An undercover officer went out to the house, knocked, and told the suspect that he wished to talk to the repairman. Inside, the officer confirmed the repairman's observations and then obtained a search warrant. The evidence was suppressed. The officer had misrepresented the real purpose behind his request to come inside. (Mesaris (1970) 14 Cal.App.3d 71.)

Example: An officer received an anonymous letter that DeCaro had submitted a false insurance claim. The officer asked an insurance investigator to enter DeCaro's home under the guise of being a potential home buyer (DeCaro's home was listed for sale). While looking around the home with the real estate agent, the investigator saw stereo components and other equipment which DeCaro had falsely reported as stolen. A search warrant was obtained and much property was seized. It was all suppressed, however, because the investigator (who was the officer's agent) had misrepresented his purpose as being to possibly purchase the house, while his real purpose was to look for certain crime-related evidence. (DeCaro (1981) 123 Cal.App.3d 454.)

Note: If the real estate agent had been holding a true "open house" for the general public, the court would probably have reached the opposite result.

Maybe the defense bar in your neck of the wood is asleep at the switch, or any ruses used are such that they fall into one of the exceptions, but if you have to rely on consent I can only recommend do not utilize deceit unless you can articulate a serious safety issue.

 

[disagreeable]

According to the Cherry v Commonwealth, it is irrelevant why he officers knocked on he door. What is relevant is they smelled weed and got a warrant.

http://caselaw.findlaw.com/va-court-of-appeals/1175447.html

 

[CdwJava]

According to the Cherry v Commonwealth, it is irrelevant why he officers knocked on he door. What is relevant is they smelled weed and got a warrant.

http://caselaw.findlaw.com/va-court-of-appeals/1175447.html

But, in this case, the officers appear to have gained entry based upon an allegation of an emergency call for service involving some sort of a disturbance or domestic, and it was not until they had already made entry that they smelled the marijuana.

If they smelled the marijuana outside, and then asked for permission to enter and did not rely on a ruse, then all is probably good. If the police had to rely on a made-up story about a call of a domestic disturbance and then made entry claiming they had to make sure everyone was safe, that could be bad.