Erin Kerrik
Member
My attorney likes to argue (good for me, I suppose).
I believe officers used a call reporting my girlfriend missing from work for 36 hours did not justify a warrantless entry into a house. I believe the reason I can't find a precedent saying such a search was reasonable or unreasonable based on facts similar to this case is because it was clearly unreasonable to enter a home on such a flimsy pretext.
The scenario: my girlfriend quit her job without giving notice spurring her work to call the cops reporting she hadn't showed up for two days. The cop taking the call got no answer when he called her phone. A half hour later he arrived a the residence (takes five minutes to get to anywhere). He knocked "loudly"; no answer (she was on an errand). He tried the door, which was unlocked. He stuck his head in and while yelling and saw a bong on the table and smelled smoked buds. He called for backup and 3 minutes later, the two cops searched for her inside and during their search opened our 3x4 latched flowering chamber and lifted up the mylar around a small metal rack, where cuttings were growing. (one end was mostly open with a fan blowing in, but all one could see without lifting the mylar was two tomato plants).
They got a search warrant, seized evidence and arrested us when we got home.
My lawyer says the fact they opened the flowering chamber - expanding the check on her welfare to a search for narcotics - is the better argument to suppress evidence. When he first posited this, he commented, "Was she inside the cabinet yelling "HELP! HELP? No. It had nothing to do with concern for her safety." When we really got into a heated discussion more recently, he explained "Forget everything and look at this. If you were genuinely concerned for someone's welfare who was missing from work, would it be more reasonable to sweep the house to see if anyone was home and in need of help or would you open up a box to see if a dead body was inside?"
I believe the better argument is that opening the door to the house was a flagrant violation of the Fourth Amendment. The only information he had was someone had not showed up for work nor called in and they didn't answer their phone or door. He had no articulable facts that would lead him to suspect she was in that particular location, did not try less intrusive means of ascertaining her safety such as leaving a message or checking license plates in the lot. He had asked her coworker to call the emergency contact (me), and said he'd call back and did (left message). If she'd been missing for two days a delay of a few hours to ask around the neighborhood and consult with family members ... anyway, there were many less intrusive investigative avenues to confirm her welfare than welcoming oneself to poke one's head in a private residence
And I believe the fact that he didn't call for backup until after he saw the bong and smelled pot - but entered as soon as backup was there - shows the entry was to search for drugs, not to see if she was inside and unable to answer.
So is there a published case that would support either of our positions?
I believe officers used a call reporting my girlfriend missing from work for 36 hours did not justify a warrantless entry into a house. I believe the reason I can't find a precedent saying such a search was reasonable or unreasonable based on facts similar to this case is because it was clearly unreasonable to enter a home on such a flimsy pretext.
The scenario: my girlfriend quit her job without giving notice spurring her work to call the cops reporting she hadn't showed up for two days. The cop taking the call got no answer when he called her phone. A half hour later he arrived a the residence (takes five minutes to get to anywhere). He knocked "loudly"; no answer (she was on an errand). He tried the door, which was unlocked. He stuck his head in and while yelling and saw a bong on the table and smelled smoked buds. He called for backup and 3 minutes later, the two cops searched for her inside and during their search opened our 3x4 latched flowering chamber and lifted up the mylar around a small metal rack, where cuttings were growing. (one end was mostly open with a fan blowing in, but all one could see without lifting the mylar was two tomato plants).
They got a search warrant, seized evidence and arrested us when we got home.
My lawyer says the fact they opened the flowering chamber - expanding the check on her welfare to a search for narcotics - is the better argument to suppress evidence. When he first posited this, he commented, "Was she inside the cabinet yelling "HELP! HELP? No. It had nothing to do with concern for her safety." When we really got into a heated discussion more recently, he explained "Forget everything and look at this. If you were genuinely concerned for someone's welfare who was missing from work, would it be more reasonable to sweep the house to see if anyone was home and in need of help or would you open up a box to see if a dead body was inside?"
I believe the better argument is that opening the door to the house was a flagrant violation of the Fourth Amendment. The only information he had was someone had not showed up for work nor called in and they didn't answer their phone or door. He had no articulable facts that would lead him to suspect she was in that particular location, did not try less intrusive means of ascertaining her safety such as leaving a message or checking license plates in the lot. He had asked her coworker to call the emergency contact (me), and said he'd call back and did (left message). If she'd been missing for two days a delay of a few hours to ask around the neighborhood and consult with family members ... anyway, there were many less intrusive investigative avenues to confirm her welfare than welcoming oneself to poke one's head in a private residence
And I believe the fact that he didn't call for backup until after he saw the bong and smelled pot - but entered as soon as backup was there - shows the entry was to search for drugs, not to see if she was inside and unable to answer.So is there a published case that would support either of our positions?
