Police conducted an illegal warrantless entry two weeks before seeking a search warrant, but then they made two more controlled buys from defendant before getting a search warrant. The warrant had an independent source and would not be suppressed. United States v. Brooks, 2016 U.S. Dist. LEXIS 58866 (W.D.N.Y. May 2, 2016):
“The primary evil that the motivational inquiry seeks to root out is the so-called ‘confirmatory search,'” which occurs “when officers conduct a search to get assurance that evidence is present before taking the time and effort to obtain a warrant.” United States v. Hanhardt, 155 F. Supp. 2d 840, 847-48 (N.D. Ill. 2001). In this case, the complaint indicates that RPD members were conducting surveillance of 24 Fern Street on October 1, 2015 as part of an ongoing narcotics investigation based upon information that “had been developed from several sources that the residence at 24 Fern Street was being used as a drug house to sell quantities of heroin.” (Docket # 1 at ¶ 3). That ongoing investigation had included an earlier controlled purchase near the porch area of 24 Fern Street on August 14, 2015. (Docket # 63 at 9 n.2). The information gathered by law enforcement also apparently included a tip from a “concerned citizen” who provided the police “with information regarding drug activity at 24 Fern Street.” (Docket # 49 at ¶ 30).
. . .
No information suggests that Wengert seized any evidence during his warrantless entry on October 1. Moreover, nothing in the record suggests that the officers immediately attempted to obtain a warrant for the premises. Instead, the officers continued their investigation for another two weeks and conducted two more controlled purchases prior to securing a search warrant for the premises. On this record, I find that the investigating officers would have applied for a search warrant even absent Wengert’s warrantless entry. United States v. Swope, 542 F.3d 609, 616 (8th Cir. 2008) (district court properly concluded that information known to officers and not the observations made during an illegal entry prompted law enforcement to seek warrant), cert. denied, 555 U.S. 1145, 129 S. Ct. 1018, 173 L. Ed. 2d 307 (2009); United States v. Madrigal, 103 F. App’x 9, 12 (7th Cir. 2004) (district court properly concluded that observations during illegal search did not prompt officers to seek search warrant because it was reasonable to conclude that officers would have sought a warrant based upon their independent knowledge); Johnson, 994 F.2d at 987 (“[c]learly, the agents would have and could have applied for and been issued a warrant” where there was probable cause to issue a warrant and where “the only reason the agents failed to apply for a warrant prior to [unlawful search] … was their mistaken belief that they were entitled to do so”); United States v. Lyons, 2015 U.S. Dist. LEXIS 27841, 2015 WL 999922, *8 (D. Minn. 2015) (concluding that officers would have applied for search warrants even had they not conducted impermissible canine sniff where information known to officers made “clear to th[e] [c]ourt” that the “officers would have sought the warrants even if there had been no positive indication for narcotics by [the canine]”); United States v. Medina, 2014 U.S. Dist. LEXIS 115575, 2014 WL 4101531, *6 (S.D. Fla. 2014) (concluding that officer would have applied for a warrant based upon information known to him even if he had not unlawfully entered defendant’s room), aff’d, 631 F. App’x 682 (11th Cir. 2015), cert. denied, 136 S. Ct. 1397, 194 L. Ed. 2d 375 (2016); United States v. Stabile, 2009 U.S. Dist. LEXIS 20275, 2009 WL 8641714, *4 (D.N.J. 2009) (“[i]t is inconceivable that, informed [of patently incriminating file names on a computer hard drive], [the agent] would not have sought a warrant to search the hard drives for child pornography”), aff’d, 633 F.3d 219 (3d Cir.), cert. denied, 132 S. Ct. 399, 181 L. Ed. 2d 256 (2011); United States v. Terry, 41 F. Supp. 2d 859, 866 (C.D. Ill. 1999) (“[a]lthough [the officers] did not testify as to whether they would have sought the federal search warrant absent the seizure …, the evidence shows that … [t]he police officers conducting the investigation had ample information to show that an additional search … was warranted”), aff’d, 214 F.3d 900 (7th Cir.), cert. denied, 531 U.S. 891, 121 S. Ct. 216, 148 L. Ed. 2d 152 (2000); United States v. David, 943 F. Supp. at 1418 (“the search warrant was not sought in order to sterilize the fruits of the prior tainted search[;] … the court finds that the agents would have continued to investigate [defendant] and would have applied for the search warrant even had they not [conducted the unlawful search]”). Accordingly, I find that suppression of the tangible evidence seized from 24 Fern Street is not required under the independent source doctrine.
by John Wesley Hall
Criminal Defense Lawyer and
Search and seizure law consultant
Little Rock, Arkansas
Contact: forhall @ aol.com / The Book www.johnwesleyhall.com
"If it was easy, everybody would be doing it. It isn't, and they don't." —Me
"Life is not a matter of holding good cards, but of playing a poor hand well." –Josh Billings (pseudonym of Henry Wheeler Shaw), Josh Billings on Ice, and Other Things (1868) (erroneously attributed to Robert Louis Stevenson, among others)
“I am still learning.” —Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams
v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold,
J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws,
or worse, its disregard of the charter of its own existence." —Mapp
v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that
bear heavily on the Court to water down constitutional guarantees and give the
police the upper hand. That hydraulic pressure has probably never been greater
than it is today."
— Terry
v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their
property."
—Entick
v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have
frequently been forged in controversies involving not very nice people. And
so, while we are concerned here with a shabby defrauder, we must deal with his
case in the context of what are really the great themes expressed by the Fourth
Amendment."
—United
States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated
here, has not–to put it mildly–run smooth."
—Chapman
v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the
bottom of a turntable."
—Arizona
v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly
exposes to the public, even in his own home or office, is not a subject of Fourth
Amendment protection. ... But what he seeks to preserve as private, even in
an area accessible to the public, may be constitutionally protected."
—Katz
v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to
protect liberty when the Government’s purposes are beneficent. Men born
to freedom are naturally alert to repel invasion of their liberty by evil-minded
rulers. The greatest dangers to liberty lurk in insidious encroachment by men
of zeal, well-meaning but without understanding.”
—United
States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted
intrusion by government—is as easily lost through insistent nibbles by
government officials who seek to do their jobs too well as by those whose purpose
it is to oppress; the piranha can be as deadly as the shark.”
—United
States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want /
But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists,
and I didn't speak up because I wasn't a communist. Then they came for the Jews,
and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists,
and I didn't speak up because I wasn't a trade unionist. Then they came for
the Catholics and I didn't speak up because I wasn't a Catholic. Then they came
for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration
camp]
“You know, most men would get discouraged by
now. Fortunately for you, I am not most men!”
---Pepé Le Pew
"The point of the Fourth Amendment, which often is not grasped by zealous officers,
is not that it denies law enforcement the support of the usual inferences which
reasonable men draw from evidence. Its protection consists in requiring that
those inferences be drawn by a neutral and detached magistrate instead of being
judged by the officer engaged in the often competitive enterprise of ferreting
out crime."
—Johnson
v. United States, 333 U.S. 10, 13-14 (1948)