Post details: CA6: Police investigation validly led to exigent circumstances for search for drugs

01/31/12

Permalink 12:22:12 am, by fourth, 546 words, 330 views   English (US)
Categories: General

CA6: Police investigation validly led to exigent circumstances for search for drugs

The police had the defendant’s house under surveillance and observed and stopped people leaving with drugs, a strong smell of raw marijuana in their cars, and significant drug histories. A “protective sweep” of the premises was performed which the court finds lawful. Even so, a warrant was issued thereafter, and if the information from the protective sweep was left out, there was still probable cause. [The court erroneously conflates “protective sweep” and exigent circumstances in general.] United States v. Johnson, 457 Fed. Appx. 512, 2012 FED App. 0098N (6th Cir. 2012) (unpublished)*:

Moreover, the officers were aware that Hakim and the two other individuals taken into custody after leaving the Glen Drive residence would soon be released from custody and the traffic stop, respectively, after being questioned about narcotics and their connection with the Glen Drive residence. Upon release from custody, they would be able to contact the individual(s) believed to be in the house and instruct them to destroy the narcotics. We find that the officers thus had “a reasonable belief that these third parties may soon become aware the police are on their trail, so that the destruction of evidence would be in order.” Sangineto-Miranda, 859 F.2d at 1512. The exigent circumstances exception applies, and we find that the officer’s initial entry for the protective sweep was constitutional.

[Note: This case is just wrong and bad precedent on use of the phrase “protective sweep” which is from Maryland v. Buie and centers on protecting police from an ambush. Buie at 333:

That Buie had an expectation of privacy in those remaining areas of his house, however, does not mean such rooms were immune from entry. In Terry and Long we were concerned with the immediate interest of the police officers in taking steps to assure themselves that the persons with whom they were dealing were not armed with, or able to gain immediate control of, a weapon that could unexpectedly and fatally be used against them. In the instant case, there is an analogous interest of the officers in taking steps to assure themselves that the house in which a suspect is being, or has just been, arrested is not harboring other persons who are dangerous and who could unexpectedly launch an attack. The risk of danger in the context of an arrest in the home is as great as, if not greater than, it is in an on-the-street or roadside investigatory encounter. A Terry or Long frisk occurs before a police-citizen confrontation has escalated to the point of arrest. A protective sweep, in contrast, occurs as an adjunct to the serious step of taking a person into custody for the purpose of prosecuting him for a crime. Moreover, unlike an encounter on the street or along a highway, an in-home arrest puts the officer at the disadvantage of being on his adversary's “turf.” An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.

This is judicial laziness in terminology, but the existence of probable cause is evident. Moreover, the finding of “a reasonable belief that these third parties may soon become aware the police are on their trail” is premised purely on police conduct, which is somewhat tenuous and needed to be further explored.]

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