OK: Even if protective sweep was pretextual, the case parallels McArthur and there was PC for warrant without it

The trial court held that the protective sweep here was pretextual and suppressed. The court of criminal appeals held that this case was strikingly similar to Illinois v. McArthur. There was valid third party consent to the entry. The information provided was sufficient to show probable cause to get a search warrant. Ignoring any information from the protective sweep, there was plenty to go on for probable cause. State v. Stark, 2018 OK CR 16, 2018 Okla. Crim. App. LEXIS 14 (May 24, 2018):

[*P11] These facts, legally speaking, are strikingly similar to the facts in the case before us now. At the point in time that the officers knocked on the door of this trailer, they had already obtained from Ms. Meneffee almost exactly the same information officers had in McArthur, and which the Supreme Court found sufficient to support the detention of the occupant outside the residence and the issuance of a search warrant. Specifically, officers had probable cause to believe that the trailer house contained evidence of a crime based on Ms. Menefee’s statements. The police had the opportunity to speak with her and make at least a rough assessment of her reliability. The details she provided about the types of guns and drugs inside the trailer house indicated a firsthand knowledge of their presence. The officers had reason to believe that the occupants knew Ms. Menefee was aware of the guns and drugs inside the trailer house and that she was angry enough to call police about being denied admission to retrieve her belongings. The officers had reason to believe the trailer house occupants were aware of their presence, and fearing an imminent entry for Menefee’s belongings or a search, would destroy evidence or otherwise pose a threat to the officers or other persons who might interfere with their criminal activity. Armed with this information, the officers took action to confirm the existence of criminal activity by knocking on the door and seizing Stark and the other occupants. The immediate detection of the odor of raw marijuana and observation of guns in plain sight from the doorway instantly confirmed Ms. Menefee’s reported accusations. This was a rapidly evolving incident under circumstances giving rise to a reasonable concern about the nature of the danger involved. Understandably the officers conducted a protective sweep for their safety. In an effort to reconcile their law enforcement needs and the demands of personal privacy, the officers obtained consent from the trailer home lessee to search and later obtained a search warrant after finding a large amount of marijuana in a backpack. Based on the reasoning in McArthur, we find the seizure of Stark, the warrantless entry for the protective sweep, and the subsequent searches of the trailer were reasonable.

[*P12] Even assuming, however, for argument’s sake that the initial protective sweep was unauthorized and that no valid consent to search was given by the lessee, the search warrant ultimately obtained by officers was sufficiently supported by probable cause not derived from any illegal source to support the search. As noted above, Ms. Menefee’s statements provided probable cause to believe criminal activity was afoot inside the trailer. “Evidence may be admissible where it was discovered through an independent source, or where intervening circumstances break the connection between the illegal government conduct and discovery of the evidence.” Jacobs v. State, 2006 OK CR 4, ¶ 6, 128 P.3d 1085, 1087. Hence, the search warrant affidavit, extirpating any information gained after the officers contacted the occupants at the front door, still supported the issuance of the warrant and the resultant search. “The law is clear that the inclusion of illegally obtained evidence does not vitiate a search warrant otherwise lawfully issued upon probable cause.” Simon v. State, 1973 OK CR 429, ¶ 15, 515 P.2d 1161, 1164.

[*P13] Deciding the present case upon this narrow ground of extirpating the challenged information from the affidavit and then reviewing for probable cause serves two public policy aims. First, showing preference to searches based upon warrants encourages officers to obtain them rather than relying upon warrantless search exceptions. “Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants.” United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 746, 13 L.Ed.2d 684 (1965).

[*P14] Second, it avoids application of the exclusionary rule where its deterrent effects are minimal or non-existent. During the evidentiary hearing held by the district court, one of the responding officers testified that Ms. Menefee “wanted us to go with her to get her stuff. She said she did not want to go in without officers being there because she was in fear of her safety.” The officer admitted that Ms. Menefee never explicitly stated he could enter, although the context led him to believe she was giving consent for him to enter.