{"id":1668,"date":"2008-03-17T20:09:09","date_gmt":"2008-01-06T09:58:32","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-01-06T09:58:32","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=1668","title":{"rendered":"Exigency here was police created; defendant had no way of knowing they were around to make her destroy evidence (which was evident when they entered)"},"content":{"rendered":"

Exigent circumstances were not present to justify a police entry. The only exigency was police created. Commonwealth v. Dean<\/a>, 2008 PA Super 3, 940 A.2d 514 (2008):<\/p>\n

[*P16] Applying the afore-cited precepts to the present case, we hold that the entry of the police into Appellee’s hotel room was illegal. The police were not in hot pursuit of a fleeing felon, there was no danger to anyone justifying immediate entry, the offense (simple possession of marijuana) was not grave in the sense of danger or injury to anyone, there was no information that Appellee was armed, and there was no evidence that Appellee would escape if they did not enter at that moment or that evidence would be destroyed. It must be recalled that the police’s information that Appellee was using marijuana and methamphetamine in Room 211 came from her nephew, who was in custody at the exact time entry was obtained into Appellee’s hotel room. Thus, there is no reason to believe that Appellee could have received advance notice of the police’s intentions so as to flee or destroy evidence. Further, the search was of permanent premises, not of a movable vehicle. See Johnson<\/em><\/a>, supra.<\/p>\n

[*P17] On the contrary, the dangers that did arise and the circumstances that did become exigent did not occur until the police announced their presence and identity, which was followed immediately by entry into Appellee’s hotel room. In other words, the actions of the police created the exigency here. The police could have secured a search warrant prior to Appellee realizing that an investigation was under way. See Johnson<\/em>, supra. The probable cause to arrest Appellee was based in part on what was observed in the hotel room. And, because the police were not in a position where they were entitled to be when they observed the content of the premises (drugs and money), the “plain view” doctrine does not come into play to sanitize their illegal entry into Appellee’s hotel room. See McCree<\/em>, supra; see also Commonwealth v. Swenda<\/em>, 2006 Pa. Dist. & Cnty. Dec. LEXIS 282 (filed December 8, 2006).<\/p>\n

[*P18] We conclude that entry into Appellee’s hotel room was not supported by an exigency justifying the warrantless intrusion. If there were any exigencies, they were the by-product of the police’s decision to make a warrantless entry rather than secure a search warrant. Accordingly, we find that the search and seizure of evidence was unconstitutional and the fruits of the search and seizure are suppressible, which includes Appellee’s statement and her consent form.<\/p><\/blockquote>\n

Under Randolph<\/em><\/a>, the police are not required to ask the defendant for consent just because he is nearby. The third party with apparent authority was asked, and she consented. Prophet v. State<\/a>, 970 So. 2d 942 (Fla. 4DCA 2008).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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